Essex & Essex (No. 2)

This case involved property settlement and spousal maintenance proceedings between the wife and the husband. The primary dispute concerned the division of the parties' assets and liabilities, including the former matrimonial home and another property, as well as the wife's claim for spousal maintenance. The wife sought a 70% to 30% division of property, including certain discretionary trusts, or for them to be treated as a financial resource. The husband sought a 55% to 45% division in his favour and the dismissal of the spousal maintenance application. The matter was heard by Benjamin J in the Family Court of Australia.

The court was required to determine the identity and value of the parties' property and liabilities, assess the contributions of each party to the marriage, and consider the relevant "other factors" under section 75(2) of the *Family Law Act 1975* (Cth), including the wife's health and earning capacity, and the husband's financial circumstances. Specifically, the court had to address issues regarding the treatment of discretionary trusts created by the husband's mother, the wife's financial conduct post-separation, and the conflicting medical evidence regarding the wife's capacity to work.

Benjamin J applied the four-step approach to property proceedings outlined in *Hickey and Hickey*, first identifying and valuing the parties' assets and liabilities. The court found that separation occurred in January 2000. Significant weight was given to the substantial contributions made by the husband's family, which were treated as contributions by the husband. The court found the husband's credit to be generally more reliable than the wife's, noting instances of exaggeration and untrustworthiness in the wife's evidence, including the fraudulent alteration of a withdrawal slip for $30,000 from a joint account. The court determined that the wife's health, while problematic, did not prevent her from working part-time or full-time, preferring the evidence of one of the occupational physicians over the other. Discretionary trusts established by the husband's mother were found not to be property or financial resources of the husband, as he lacked control over them and their purpose was to benefit his mother and ultimately his children. The court ultimately determined a contribution entitlement of 60% to the husband and 40% to the wife, with a further 15% adjustment in favour of the wife under section 75(2) factors, resulting in a final division of 55% to the wife and 45% to the husband. The wife's application for spousal maintenance was dismissed, finding she had the capacity to support herself.

The court ordered the sale of two properties, J property and F property, with specific provisions for the distribution of proceeds, including the payment of capital gains tax from the sale of J property. The husband was ordered to pay the wife a sum of $108,886. The parties were to transfer various assets and liabilities to each other as specified in the orders. The wife's application for spousal maintenance was dismissed.