Fitzgerald-Stevens & Leslighter

[2015] FCWA 25

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FITZGERALD-STEVENS and LESLIGHTER

[2015] FCWA 25

CORAM: WALTERS J

HEARD: 20-22 FEBRUARY 2013, 10-12 JUNE 2013, 2 APRIL 2014 & 26 MAY 2014

DELIVERED : 12 MARCH 2015

FILE NO/S: PTW 5767 of 2008

BETWEEN: MS FITZGERALD-STEVENS

Applicant

AND

MR LESLIGHTER
Respondent

Catchwords:

FAMILY LAW – PROPERTY – alteration of property interests under the Family Law Act 1975 (Cth) – consideration of parties’ respective contributions – consideration of s 75(2) factors – where the husband’s financial contributions outweighed those of the wife – where the wife has significantly exaggerated her contributions – where the husband is a member of the Parliamentary Contributory Superannuation Scheme established under the Parliamentary Contributory Superannuation Act 1948 (Cth) and in receipt of a parliamentary superannuation pension – where the husband's pension is an indexed, lifetime benefit to which he is entitled irrespective of the level of any other income he might receive – where the husband's pension is an income stream only and is not a capital sum available to the husband – where the husband has no capacity to convert his pension to a lump sum – valuation of the husband's pension – whether appropriate to value the husband's pension under the Family Law (Superannuation) Regulations 2001 and the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 – consideration of the Full Court's decision in Semperton & Semperton [2012] FamCAFC 132 – where the Court is not mandatorily required to determine the value of the husband's pension because no superannuation split is sought – valuation of the husband's pension on actuarial principles

Legislation:

Family Law Act 1975 (Cth), s 75(2), s 79(2), s 79(4)
Parliamentary Contributory Superannuation Act 1948 (Cth), s 4C, s 19

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hanly

Respondent: Ms N Stewart & Mr M Rynne

Solicitors:

Applicant: Hotchkin Hanly

Respondent: Leach Legal

Case(s) referred to in judgment(s):

B & B [2006] FamCA 883

Bevan & Bevan [2013] FamCAFC 116

Bevan & Bevan [2014] FamCAFC 19

Bolger & Headon [2014] FamCAFC 27

Bonacci & Bonacci [2012] FamCAFC 15

C & C [1998] FamCA 143

Chapman & Chapman [2014] FamCAFC 91

Chemaisse & The Commission of Taxation & Ors (1990) FLC 92-133

Chorn and Hopkins (2004) FLC 93-204

Clauson & Clauson (1995) FLC 92-595

Coghlan & Coghlan [2005] FLC 93-220

Cowan v Cowan [2001] 2 FLR 192

Dekker & Dekker [2014] FCWA 61

Dickons & Dickons [2012] FamCAFC 154

Edgehill & Edgehill [2007] FamCA 1102

Fitzgerald-Stevens & Leslighter [2011] FCWAM 28

Fielding & Nichol [2014] FCWA 77

Fullgrabe & Fullgrabe [2015] FCWA 9

G & G [2004] FamCA 1179

Gollings & Scott [2007] FamCA 397

Herridge & Handerson and Ors [2011] FamCAFC 156

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Khademollah & Khademollah [2000] FamCA 1045

Kowaliw and Kowaliw (1981) FLC 91-092

Leslighter & Fitzgerald-Stevens [2012] FamCAFC 94

McMahon & McMahon (1995) FLC 92-606

Norbis v Norbis (1986) 161 CLR 513

OSF & OJK (2004) FLC 93-191

Pastrikos & Pastrikos (1978) 31 FLR 524

Rollings & Rollings [2009] FamCAFC 87

Rushton & Rushton [2011] FMCAfam 1259

Russell v Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Semperton & Semperton [2012] FamCAFC 132

Spellson & Spellson (1989) FLC 92-046

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Townsend & Townsend (1995) FLC 92-569

Waters & Jurek (1995) FLC 92-635

Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

Preamble

1These proceedings relate to competing applications for property settlement. The parties met in 1996, commenced cohabitation around the beginning of 1999 and married in May 2001. They separated in January 2008. It follows that they lived together for approximately nine years. They are not yet divorced.

2This was the husband's third marriage and the wife's second marriage. There were no children of the marriage, although both parties had children from their previous marriages. The husband is now nearly 80 years of age; the wife is in her early 60s.

3Both parties were mature, independent adults when they met.

4The husband is a retired [public official]. He receives a parliamentary superannuation pension pursuant to the Parliamentary Contributory Superannuation Scheme, which was established under the Parliamentary Contributory Superannuation Act 1948 (Cth). The wife worked [in the husband’s employ] for much of the relationship. She is now employed in [the public service].

5By and large, the parties kept their finances separate during the relationship, although they purchased two residential properties as tenants in common – one in [Suburb P] (in which they lived for the last four or five years of their relationship) and the other in Canberra . The wife continues to live in the home in Suburb P. The Canberra property has been sold. The husband now lives near [Country Town B], New South Wales.

6In addition to his involvement in State and Federal politics, the husband had been a farmer and pastoralist for most of his life. He was living on a rural property in Western Australia when the parties met. He had sold his interest in the property at an earlier stage, but was paid the consideration for that interest during the relationship. He then bought another rural property in Western Australia.

7The wife owned a residential property at the commencement of the relationship. When it was sold, she used the funds as she saw fit.

8The parties disagreed about a great many things. In particular, they disagreed about the manner in which the husband's parliamentary superannuation pension should be treated in the proceedings, and about the extent and significance of the contributions they had each made to the property now available for distribution between them.

9Neither party was an exemplary witness, and both lost sight of the wood for the trees. I am satisfied, however, that the husband's evidence was more reliable than the wife's evidence. Regrettably, the wife was unwilling to give credit to the husband where it was due, and she did not hesitate to exaggerate the nature and extent of her contributions (in all their various guises). Indeed, she exaggerated lavishly. That is not to say that the husband did not downplay the wife's contributions; he did at times, but I am satisfied that his version of the course of the relationship and the parties' respective contributions was far more accurate than that of the wife.

Background and relevant financial and litigation history

10In these Reasons, and unless otherwise indicated:

a)all statements of fact comprise findings of fact;

b)I have referred to the parties as the wife and the husband (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;

c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;

d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm"); and

e)references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or the "FLA".

Brief chronological outline

11The wife was born [in] 1953 and the husband [in] 1936. The wife is employed full-time in the public service. The husband is a retired public officer. He was also a farmer and pastoralist.

12Both parties were born in Australia.

13The parties met in 1996 and commenced cohabitation in late 1998 or early 1999. They married on [in] May 2001 and separated in January 2008. It follows that the relationship occupied approximately nine years. There are no children of the marriage. The parties are not yet divorced.

14This was the wife's second marriage. The wife was married to her first husband from 1970 to 1995, a period of 25 years. They divorced in February 1998.

15It was the husband's third marriage. He was married to his first wife from 1958 to 1972. He was married to his second wife from 1973 to 1992, although they separated in 1989.

16The wife has two children from her first marriage ([M] and [A]). They are now aged in their mid-30s.

17The husband has three children from his first marriage ([J], [B] and [N]) and two children from his second marriage ([D] and [C]) – all of whom are now adults.

18After separating from his second wife, and prior to his third marriage, the husband was in a relationship with another woman. That relationship lasted approximately eight years and ended in or about 1997.

Commencement of cohabitation

19There was some dispute regarding the date upon which the parties commenced cohabitation. The husband said, and I accept, that they first met in 1997 when the husband was living at [Farm D]. The wife was living in her own home in [H Suburb] ("[H Property]").

20The wife described [H Property] as comprising three acres of land, a tennis court, a swimming pool and a four-bedroom house. She had retained it as part of her property settlement with her first husband.

21As the parties' relationship developed, they socialised together and spent time at each other's homes. There was no or very little intermingling of their financial affairs. In 1998, the husband employed the wife as a member of his staff in Perth.

22Around that time, the husband purchased a residential property [F Property]. He arranged for the house on the property to be demolished and for a new home to be built. The parties moved into the house in early 1999. I am satisfied that cohabitation commenced at or shortly before that time. I do not accept the wife's evidence that the parties commenced a de facto or marriage-like relationship in 1997 or the early part of 1998 and note that the husband was not cross-examined on his version of events.

23Accordingly, I am satisfied that the husband lived at Farm D and the wife lived in her home in H Suburb until they commenced living together in F Property. That is not to say that the parties did not spend time together as the relationship developed. They did, and that time was considerable, but the parties were not then cohabiting; they were not in a de facto or marriage-like relationship.

Marriage

24The parties married on [in] May 2001. They both contributed to the costs associated with the function.

25I am satisfied that there was a degree of disharmony between the parties from a fairly early stage in their relationship: see, for example, the husband's trial affidavit at [25]-[38]. I make no finding as to who may have been responsible or primarily responsible for the disharmony. It is not irrelevant to note, however, that some degree of mistrust (indeed, mutual mistrust) had insinuated itself into the relationship in its formative stages: see, for example, annexure 1 to the husband's trial affidavit; see also the wife's second trial affidavit at [132] to [147]. In my opinion, the existence of this disharmony tends to corroborate the husband's evidence to the effect that, generally speaking (and save as discussed elsewhere in these Reasons), the parties kept their finances separate.

26I have discussed the wife's approach to these proceedings, including her readiness to exaggerate certain matters and minimise others, elsewhere in these Reasons. Not surprisingly, therefore, she sought to downplay the significance of the disharmony to which I have referred. For example, the wife said in her second trial affidavit at [133]-[134]:

A year or so following our marriage [the husband] began to occasionally make bizarre allegations of affairs and this behaviour eventually became the basis of the breakdown of our marriage.

Apart from these occasions our relationship was normal.

27I am not satisfied that the parties' relationship was as "normal" as the wife has suggested: see the wife's second trial affidavit at [135] to [147].

The Parties' financial position at commencement of cohabitation

28The husband was aged 62 when the parties commenced cohabitation. The wife was 45. Both were in a relatively comfortable financial position at that time.

29The husband had been a director and shareholder of [L Company] for many years. The company was originally established in 1972 by the husband and his first wife. The husband controlled L Company. He also traded in shares through L Company. The share portfolio was managed by what is now Paterson Securities Ltd ("Patersons"). Patersons is a large stockbroking and financial services firm.

30L Company purchased Farm D in or about 1981. A farming enterprise was conducted on the property.

31Farm D was sold to [I Pty Ltd] in 1991 for $520,000. The sale was subject to the husband's right to continue to live on and farm the property. For reasons that are now of little relevance, L Company was not paid the purchase price for Farm D until 2003 (by which time the husband and the wife had married).

32The husband was also involved in other corporate entities and enterprises, and was the guardian and appointor of a discretionary family trust known as the [L Trust] ("the Trust"). The trustee of the Trust was [P Nominees Pty Ltd] ("[P Nominees]").

33The husband's business interests were relatively diverse. Directly or indirectly, he was involved in farming enterprises, share trading, mining and mineral exploration.

34In addition to the activities referred to above, the husband had been in public office. He was [involved in the] Western Australian [Parliament] for one or two years in the mid-1980s. He returned [as a member of] State Parliament in 1993. In 1997 he was appointed [as a public officer] for Western Australia after being selected to fill a vacancy created by the death of [another public officer]. The husband remained [working as a public officer] until he retired in 2008.

35When he retired from State Parliament (in May 1997) to move to the federal sphere, the husband became entitled to a pension under the Parliamentary Superannuation Act 1970 (WA). He elected to commute 100% of the pension entitlement, and receive a lump sum payment instead. For taxation purposes, the lump sum was treated as an Eligible Termination Payment. The lump sum amounted to $466,000: see annexure 13 to the husband's trial affidavit. The after-tax amount received by the husband was approximately $366,000.

36In July 1997, the husband purchased F Property, upon which stood an old house. The purchase price was $195,000. The husband then arranged for the existing house to be demolished and for a new house to be constructed on the block. The costs associated with the construction of the new house were in the order of $200,000. In order to meet the total costs of the development (amounting to approximately $395,000), the husband borrowed approximately $110,000 from the ANZ bank and paid the balance (of approximately $285,000) from the lump sum he had received upon retiring from State Parliament.

37I am satisfied that, at the commencement of cohabitation, the husband had – or had the benefit of – furnishings and other items of personalty (including a Rolex watch worth approximately $20,000 which is still in his possession), artworks, a motor vehicle, the moneys owing in respect of Farm D ($520,000), the net equity in F Property (approximately $285,000), the balance of the lump sum he received upon retirement from State Parliament (approximately $81,000) and certain other items. According to the husband, these included cattle worth approximately $60,000 and a share portfolio worth approximately $25,000. His liabilities seem to have been modest: they totalled approximately $7000. The amount owing in respect of the mortgage encumbering F Property has already been accounted for (in that I have referred to the husband's net equity in the property).

38Although the wife suggested that the husband's liabilities were significantly greater than the amounts to which I have referred, I am not satisfied that such was the case.

39It follows that the total net value of the property owned (directly or indirectly) by the husband at the commencement of cohabitation was approximately $984,000 – excluding furniture, chattels and effects (apart from the Rolex watch), artwork, any relevant coin collection and the husband's motor vehicle. I accept, however, that the actual net value of the property could, perhaps, be some 5% or 10% more or less than this figure. Little turns on the precise figures.

40Although the wife asserted that cohabitation commenced in 1997 (which assertion I have rejected), her evidence was that she had furniture, chattels and effects, an unencumbered house in H Suburb (worth approximately $350,000) a motor vehicle worth approximately $20,000, savings of approximately $70,000 and superannuation entitlements of approximately $130,000.

41Excluding furniture, chattels and effects and her motor vehicle (to be consistent with the approach adopted above as it relates to the husband), it appears that the total net value of the property owned by the wife at the commencement of cohabitation was approximately $550,000. This figure includes the wife's superannuation entitlements at the figure nominated by the wife.

42Again, and to be consistent with the approach adopted for the husband, I am satisfied that the actual net value of the wife's property could, perhaps, be some 5% or 10% more or less than the amount of $550,000 to which I have referred. As I have said, little turns on the precise figures.

43Suffice it to say that the value of the property introduced into the relationship by the husband was something in the order of 80% greater than the value of the property introduced by the wife. Put another way, the parties' initial financial contributions were on the basis of approximately 64% from the husband and 36% from the wife.

Relevant events during the period of cohabitation

44The parties' contributions (in all their various guises) will be discussed later in these Reasons.

45At all relevant times during their relationship, the husband was a public officer. The husband spent the sitting weeks of Parliament in Canberra. That meant, of course, that he was required to fly regularly between Perth and Canberra.

46As explained above, until they commenced cohabitation in F Property in or about January 1999, the wife's primary residence was H Property and the husband's primary residence was Farm D. The husband ran Farm D as a farm, and he bred, reared and sold cattle. The husband continued to spend time at Farm D after the commencement of cohabitation, but his primary residence became F Property.

47Prior to its final disposal in 2003, the wife spent time with the husband at Farm D – for example, when he attended the property to check on the cattle. She also performed some tasks around the farm. It also seems to have been used by the parties as something of a weekend retreat.

48As indicated above, the husband was finally "paid out" for his interest in Farm D in or about November 2003. He (or, more accurately, L Company) received $520,000 at that time.

49The wife sold H Property in or about April 1999. The sale price was approximately $356,000. The net proceeds of sale amounted to $345,000.

50To the extent that it is relevant, I am satisfied that the sale of H Property was unrelated to any suggestion on the husband's part that the wife should purchase a half interest in F Property: see, for example, the wife's affidavit sworn 6 September 2010 at [20]. If I am wrong in this regard, then the wife's version of events sits comfortably with the comments I have made above regarding a degree of disharmony and mistrust insinuating itself into the relationship at a fairly early stage, and tends to corroborate the husband's evidence to the effect that, generally speaking (and save as discussed elsewhere in these Reasons), the parties kept their finances separate.

51The wife deposited the net proceeds of sale of H Property in an interest‑bearing bank account in her own name. In the meantime, the husband met the payments due in respect of the mortgage secured against F Property.

52The wife purchased a property in [J Suburb] ("[J Property]") in January 2002. She did so by utilising part of her savings arising from the sale of H Property. Her son M lived in the property for a while and it was then rented out.

53J Property was sold for $330,000 in early 2007. All the proceeds of sale were paid into M's account. As discussed below, M eventually repaid the wife $200,000, directly or indirectly provided $38,000 to pay the wife's 2007 tax assessment, gave $25,000 to his sister and retained the balance for himself.

54I am satisfied that the husband received no, or no significant, benefit from the arrangements associated with the purchase and sale of J Property.

55In April 2002, the parties purchased a unit in, [B] – a suburb of Canberra ("[B Property]"). It was purchased by the parties as tenants in common in equal shares. The purchase price was $250,000. The parties each paid one half of the $25,000 deposit. The balance was borrowed from the Commonwealth Bank.

56B Property was purchased in the following circumstances:

a)As indicated above, the husband was required to be present in Canberra for the sitting weeks of the [Parliament].

b)In the early years after his appointment to Parliament, the husband stayed in temporary accommodation or hotels in Canberra. He received an allowance to compensate him for this form of expense.

c)The wife would occasionally accompany the husband to Canberra.

d)If she did not accompany the husband to Canberra, the wife remained living in F Property.

e)From 1998 to 2002, the wife worked in the husband's electoral office in Perth as a research assistant and in other roles.

f)In 2002, [one of] the husband's [senior staff] left her position and the husband then employed the wife [in that role]. Her salary was approximately $50,000 per annum.

g)As the wife was the husband's employee, both she and the husband were entitled to travel allowances relating to travel between Perth and Canberra and the time spent in Canberra during sitting weeks.

h)In those circumstances, it was considered prudent to purchase a unit in Canberra in which to live during sitting weeks. The parties' travel allowances could then be contributed towards the capital cost of acquiring the unit.

57The mortgage payments in respect of B Property were met from a joint Commonwealth Bank account (into which the parties paid their respective travel allowances). Because his travel allowance was more generous than the wife's travel allowance, the husband's contributions to this account, and hence his contributions to the payment of the mortgage, were greater than those of the wife.

58All or almost all of the other outgoings relating to B Property were paid from the parties' joint Commonwealth Bank account.

59The husband described the wife as (among other things) his "bookkeeper". She had full access to his bank accounts and financial records.

60The husband sold F Property in August or September 2003. The sale price was $690,000. Approximately $155,000 was paid to Police & Nurses Credit Society at settlement, and approximately $314,000 was transferred to the purchase of the parties' new home in P Suburb ("[K Property]"). The remaining net proceeds of sale (amounting to approximately $219,500) were paid to the husband.

61Like B Property, K Property was purchased by the parties as tenants in common. The purchase price was $499,000. With stamp duty and other expenses, approximately $526,000 was required to be paid at settlement on 13 August 2003.

62As indicated above, the husband contributed approximately $314,000 towards the purchase of K Property. These moneys came from the sale of F Property. The wife contributed approximately $184,000 – which moneys were originally sourced in the sale of H Property.

63The parties lived in K Property until they separated. During the sitting weeks of Parliament, however, they lived in Canberra.

64Following the disposal of Farm D in late 2003, the husband sought to purchase another rural property. The husband had spent most of his life in the country or involved with country properties and wanted a new property from which he could continue to run livestock. As the wife said in her first trial affidavit at [59], the husband "had three pastoral leases before (she) knew him" and "long had an interest in the land.

65After making appropriate investigations, the husband located and decided to purchase a rural property not far from [M Town] known as [Farm K]. I am satisfied that Farm K was purchased on the husband's initiative. I am also satisfied that the wife had minimal involvement with looking for suitable properties for the husband to purchase, inspecting potential properties and negotiating for the eventual purchase of Farm K.

66The husband eventually arranged for the purchase of Farm K in the name of P Nominees as trustee for the Trust. The property was registered in the name of P Nominees at the end of January 2004. The purchase price was $590,000. In addition, stamp duty of approximately $30,000 was paid.

67The funds to acquire Farm K had their genesis in the proceeds of sale of Farm D (being $520,000 received in November 2003) and the net proceeds of sale of F Property. The moneys paid to Police & Nurses Credit Society upon settlement of the sale of F Property (being approximately $155,000) were directed towards the purchase of Farm K.

68The house on Farm K was in poor condition. Much work was done to it over the next four or five years. I am satisfied that the husband did some of the more minor work himself but that, by and large, he employed tradespeople on the project. He was responsible for the cost of the repairs and renovations – either directly or through entities under his control. I accept that the wife undertook various tasks associated with the repairs and renovations, but am satisfied that she did so at the direction of and, generally speaking, as agent for the husband. I am satisfied, however, that she has greatly exaggerated the extent and significance of the work she did in relation to Farm K. Her involvement in the enterprise was minor in comparison with the husband's involvement. The roles she performed were predominantly (but not exclusively) administrative, and dovetailed into her role as the husband's employee.

69That is not to say that the wife did nothing on or in relation to Farm K. She assisted the husband with some of the tasks he performed on the farm, helped organise some of the tradespeople who carried out the repairs and renovations to the house on the property, performed administrative tasks such as bill paying, did some gardening, helped to prepare the house for painting and did a small amount of painting herself. She may have done other tasks as well, including some tasks associated with the livestock. As I have said, however, I am satisfied that she has vastly exaggerated the extent and significance of the work she did. I accept the husband's evidence that she went to Farm K on no more than 10 occasions during the parties' relationship.

70I find that the husband was responsible for running Farm K as a farming enterprise. He handled day-to-day issues such as fence repairs, tractor and vehicle repairs, purchase and sale of cattle and the like. Having said that, the husband conceded that Farm K was not profitable. He described it as "more of a hobby farm than an income earning property" and said that he purchased it "as a lifestyle choice". He usually went to Farm K on weekends. The wife would not always accompany him.

71I am satisfied that the parties shared the household duties on the relatively few occasions when they both spent time at Farm K – although not necessarily equally. The wife is likely to have done more in the way of cooking, cleaning and housekeeping than the husband.

72It is apparent from the above that, from 2003 to 2008, the parties spent their time between K Property and B Property. On the weekends when they were in Perth, they would occasionally stay at Farm K.

73In 2006, P Nominees, as trustee for the Trust, entered into a partnership with other entities to develop a property that had previously been a motel in M ("[M project]"). Through these entities, the husband remained involved in the M project until 2009. The funds which were required to be contributed to the M project were provided by the Trust, L Company or the husband. The internal arrangements between, for example, L Company and the Trust, are now of little relevance. Ultimately, P Nominees (as trustee for the Trust) received $150,000 for its interest in the M project. The moneys were paid in August 2009, after the parties had separated.

74As discussed under the headings First alleged "add back": sale of M project interest and Appeal below, a concession has been made on behalf the wife to the effect that the correct figure for the payment to the family trust for the husband's direct or indirect interest in the M project was $150,000.

Separation

75It is not in dispute that the parties separated in January 2008. Not long afterwards, in June 2008, the husband retired from Parliament and commenced receiving a parliamentary superannuation pension.

76The wife also ceased her employment with the Commonwealth Government upon the breakdown of the marriage and the husband's retirement from Parliament.

77The parties continued to live in K Property after they separated. They occupied separate bedrooms.

78In circumstances that are no longer relevant, the husband ceased living in K Property in September 2008. The parties' relationship has been poor since that time.

79B Property was sold in July 2008, following the breakdown of the marriage and the husband's retirement from Parliament. The sale price was $392,000. After paying out the mortgage to the Commonwealth Bank and meeting other expenses, the net proceeds of sale were divided equally between the parties. Each received approximately $75,700.

80As at 21 March 2008, the wife had approximately $91,000 in a Commonwealth Bank account in her name. On 10 July 2008, $65,000 was deposited into the account and characterised as "severance pay": see exhibit H6. The wife explained that it represented the payment she received when she ceased employment with the Commonwealth Government earlier in the year. It included allowances for outstanding leave and pro rata long service leave. Shortly afterwards, the wife deposited a further $85,000 into the account, comprising the deposit for and net sale proceeds of B Property.

81The wife conceded in cross-examination that she did not refer to the amount received as "severance pay" in any of her affidavits sworn in the proceedings.

82By early September 2008 there was close to $250,000 in the wife's account. On 12 September 2008, she withdrew $200,000 and placed it in a term deposit. At the same time, and as discussed elsewhere in these Reasons, the wife's son was holding an amount of approximately $322,000 in an account in his name. These moneys were sourced in the sale of J Property and had been transferred to him by the wife. Thus, the wife had some $570,000 available to her at that time. In addition, she was the owner of a half interest in K Property.

83The wife swore a financial statement in these proceedings on 18 November 2008: see exhibit H4. By that stage, she had commenced full-time employment with [a State Government Department].

84In her financial statement, the wife listed the balance standing to her credit in the Commonwealth Bank account referred to above (being approximately $41,500) and her 50% share in K Property. She also referred to a number of bank accounts containing very modest credit balances. However, she failed to disclose the full extent of the funds then available to her. She made no mention of the $200,000 held in a term deposit (or, perhaps, in another account). She referred to "Moneys held by son" at item #43 of the financial statement, but the amount listed was $200,000 and not the full $322,000. As discussed elsewhere in these Reasons, the wife's son eventually paid $200,000 to her in January 2009. He also paid the wife's 2007 tax assessment, amounting to approximately $38,000. As I have said, the balance of the proceeds of sale of J Property were either given to the wife's children or retained by her son. If these gifts had occurred by the date upon which the wife swore her financial statement (being 18 November 2008), then she did not mention them in item #59 of the document (which deals with disposal of property). The thrust of the wife's evidence, however, was that the gifts did not occur until January 2009 or thereabouts.

85I am not satisfied that the wife made full and frank disclosure of her true financial position in her financial statement sworn 18 November 2008, which was filed at a very early stage in these proceedings. She gave no satisfactory explanation for her failure or refusal to make such disclosure. I am not satisfied that this was simply an oversight, as suggested by Mr Hanly. Regrettably, it is consistent with what I have described elsewhere in these Reasons as the wife's apparent "strategy" of focusing heavily on the husband's financial position whilst, at the same time, deemphasising her own.

86After leaving K Property, the husband went to live on Farm K. He was not happy living there permanently, however, and in August 2009 he entered into a contract to purchase an apartment in P Suburb ("[Property A]"). The apartment was still being constructed. The purchase price of Property A was $780,000. The husband was required to pay 10% by way of deposit, but was not required to pay any further costs until completion of the project (which was anticipated to be in or about April 2012). The deposit, amounting to $78,000, was met from the proceeds of sale of B Property and the disposal of the husband's direct or indirect interest in the M project.

87Farm K was sold in June 2010, some 18 months after separation. The sale price was $1,450,000. This was a very significant increase from its purchase price of $590,000.

88In December 2010, nearly two years after separation, the husband bought a property in [Country Town D] New South Wales ("[D Property]"). The purchase price of D Property was $1,340,000.

89The husband relocated to D Property to be closer to his daughters, C and B. He also wished to distance himself from Perth. The husband said that he suffered depression and anxiety following the breakdown of the parties' relationship.

90The husband has lived in D Property since late December 2010.

91In early 2012, the husband sold Property A for $860,000. At settlement in May 2012, he (or, more accurately, L Company) received approximately $90,000. The settlement statement reveals that the agent's commission was approximately $28,000 and that approximately $740,000 was required to complete the purchase of Property A from the husband's point of view (in other words, the husband had to complete the purchase of Property A before he could sell it).

92The wife has lived in K Property since the parties separated.

93Mr Rynne submitted, and I accept, that "the wife's post separation use of funds is murky": see husband's closing submissions at [69]. Although I am satisfied that the fate of the net proceeds of sale of J Property have been adequately explained, other aspects of the wife's post-separation financial activities or dealings reflect what appears to be some form of strategy on her part to bring the husband's financial position into the foreground whilst allowing her own to fade into the background or otherwise be played down. They are certainly difficult to understand, and if explanations were proffered they were generally inadequate. For example, in her first trial affidavit the wife said at [110]:

Following separation I started to salary sacrifice into my superannuation fund. In September 2008 I started work at [Company T]. I salary sacrificed by putting all of my salary into my superannuation and I lived off my savings. I worked at [Company T] for only 9 weeks. I then transferred my employment to the [Company M] where I salary sacrificed approximately 50 percent of my salary (about $1500 a fortnight). I worked for the [Company M] for 12 months from about November 2008 to November 2009. I then commenced with the [Company P] at a lower salary so I reduced my salary sacrifice. I was contributing about $950 a fortnight and have continued to contribute approximately $950 per fortnight.

94I refer, as well, to the wife’s second trial affidavit at [14]-[15].

95The wife's financial statement sworn 18 November 2008 (see exhibit H6) was prepared approximately two years before the wife's first trial affidavit. In it she referred to being employed in a State Government Department. Her total average weekly income (including superannuation provided by her employer and interest income) was slightly in excess of $2000. Her average weekly expenditure was just under that amount – but half of the expenditure (in other words, approximately $1000 per week) was in the form of additional superannuation contributions. As the affidavit and the financial statement referred to above reveal, and bearing in mind that the wife had significant assets beyond those that were referred to in the financial statement, I am satisfied that the wife was hardly in a straitened financial position following separation. Having said that, I accept that the wife was obliged to meet her legal fees and that she acquired a motor vehicle.

96My concurrence with Mr Rynne's submission to the effect that the wife's post‑separation use of funds is "murky" does not mean that the property schedule (see below) is other than an accurate reflection of the parties' financial position at trial. In other words, I am not suggesting that either party has undisclosed property. I am satisfied that all relevant items of property have been accounted for and dealt with in the property schedule. Indeed, the large majority of items were agreed.

Litigation in this Court

97The proceedings in this Court commenced in November 2008, when the wife filed an initiating application seeking unspecified orders by way of property settlement.

98The husband filed a response to the wife's application in February 2009.

99After progressing along the litigation pathway, the proceedings came on for trial before Magistrate Moroni on 14 February 2011. The manner in which the trial proceeded was controversial: the husband was not present and the hearing was conducted in his absence.

100The learned Magistrate published his judgment on 15 April 2011: see Fitzgerald-Stevens & Leslighter [2011] FCWAM 28 ("the first instance judgment"). On 19 April 2011, final orders were made pursuant to the first instance judgment ("the first instance orders"). In broad terms, the orders provided for the parties' property (as the learned Magistrate found it to be) to be divided equally between them.

The first instance orders

101The orders of 19 April 2011 are as follows:

1)Within the next 42 days –

a)[the husband] transfer to [the wife] all his right, title and interest in [[K Property]]; and

b)[the husband] pay to [the wife] the sum of $781,134.

2)Upon compliance with the provisions of paragraph 1 of these orders, [the wife] withdraw at her cost any caveat she has lodged [over [D Property]].

3)Within the next 42 days, [the husband] do all things necessary as may be required to transfer to [the wife] such number of Qantas Frequent Flyer points as may be necessary to equalise the balances of each of the parties respectively as at 14 February 2011.

4)Otherwise –

a)all the right, title and interest (if any) of [the wife] in any property and superannuation entitlement of [the husband] vest Absolutely in [the husband]; and

b)all the right, title and interest (if any) of [the husband] in any property and superannuation entitlement of [the wife] vest Absolutely in [the wife].

5)Both parties' costs of the proceedings be reserved, with liberty to both parties to apply to relist in respect thereof.

6)The said proceedings otherwise be and are hereby dismissed.

Appeal

102The husband appealed. The notice of appeal was filed on 17 May 2011.

103The appeal was directed to paragraphs 1(b) and 3 of the first instance orders. In other words, the husband did not seek to set aside the transfer of his interest in K Property to the wife. His primary concerns related to the payment of additional moneys to the wife and the transfer of the Frequent Flyer points.

104On 3 June 2011, the operation of paragraphs 1(b) and 3 of the first instance orders was stayed. The husband's interest in K Property has since been transferred to the wife. The property is now in her sole name.

105The appeal was heard on 17 November 2011.

106The Full Court published its judgment on 2 July 2012: see Leslighter & Fitzgerald-Stevens [2012] FamCAFC 94 ("the appeal judgment"). The appeal was allowed. Paragraphs 1(b) and 3 of the first instance orders were set aside, and the parties' competing applications for property settlement were remitted for rehearing. The husband was ordered to pay the wife's costs of the appeal on an indemnity basis.

107At the heart of the appeal was the husband's assertion that the learned Magistrate should not have heard the property proceedings in his absence. The Full Court agreed with that assertion.

108In forming a view that the trial should not have proceeded in the husband's absence, the Full Court took into account further evidence that had been adduced on behalf of the husband. The evidence comprised three affidavits: one from the husband and two from medical practitioners. The primary purpose of the further evidence was to explain the husband's failure to appear at the hearing. In broad terms, the medical evidence revealed that the husband was suffering from symptoms associated with anxiety, stress or depression at or around the time of the trial. The husband's evidence was to the effect that he did not fully understand his obligation to be present at the trial and did not appreciate that it would proceed in his absence.

109When dealing with this ground of appeal (namely, that the learned Magistrate erred in not adjourning the trial), the Full Court said at [111] of the appeal judgment:

We are persuaded that to do justice between the parties the appeal must be allowed and a rehearing ordered because of the evidence including the further evidence and the medical evidence which is now before us. That evidence… does not provide a complete excuse for the failure of the husband to participate in the trial, but it goes a significant way to explain that failure…

110The other grounds of appeal included assertions that errors had been made in the identification and valuation of the property available for distribution between the parties, that the Court's findings on contributions were wrong, that relevant s 75(2) factors were not taken into account and that the orders ultimately made were not just and equitable.

111It is unnecessary to revisit the first instance judgment and the appeal judgment in these Reasons. I have read the judgments and am aware of the contents. They speak for themselves. It is helpful, however, to record the following:

a)The learned Magistrate found that the total net value of the parties' property (including superannuation) was $4,898,750. Within that amount was the sum of $840,623 representing the "capitalised value" of the husband's pension entitlements.

b)The learned Magistrate found that the parties' contributions (in all their various guises) should be treated as being equal.

c)The learned Magistrate concluded that there should be no adjustment in favour of either party to take account of the s 75(2) factors.

d)As a consequence of the above findings, his Honour found that the parties' property (including the capitalised value of the husband's pension entitlements) should be divided equally between them. Thus, each party was to receive or retain property to the value of $2,499,375.

e)During the appeal, counsel for the wife conceded that one of the items contained in the property schedule relied upon by the learned Magistrate (being the item described as "payment to family trust for interest in [M] Motel partnership") was overvalued by $250,000: see the appeal judgment at [117]. In other words, and leaving aside other errors which the husband alleged had been made, it was conceded that the total net value of the parties' property as found by his Honour should be reduced by $250,000.

f)Although the Full Court was not persuaded that the learned Magistrate's finding of equality in relation to the issue of contribution was plainly wrong, it questioned whether the husband's significantly greater initial contributions and his post-separation contributions to his superannuation had been properly taken into account.

g)The Full Court clearly had discomfort with the manner in which his Honour had dealt with the husband's pension entitlements. For all that those entitlements may have been valued by an actuary (and they were), they remained – and could never be more than – a series of fortnightly payments which the husband would receive for the rest of his life.

112It is also helpful to record that the first instance judgment and the appeal judgment describe the relevant procedural history in substantial detail. There is no need to reproduce that history in these Reasons; I refer to and adopt it as a useful summary of the proceedings to the delivery of the appeal judgment.

Return to litigation in this Court

113A procedural conference was held on 5 September 2012. It was convened to facilitate the retrial that had been ordered by the Full Court. Various directions were made providing for the filing of additional material, disclosure and other procedural matters. Further procedural orders were made on 27 November 2012, 4 December 2012 and 11 February 2013.

114The retrial commenced on 19 February 2013. Mr Hanly appeared for the wife, and Ms Stewart appeared for the husband. The hearing continued on 20, 21 and 22 February 2013, but did not conclude on that day. It was adjourned on a part-heard basis.

115On 2 May 2013, the husband filed an application in a case. The husband sought orders permitting him to borrow moneys against D Property. The moneys were needed because, according to the husband's solicitors, he had exhausted all funds readily available to him and could neither pay outstanding legal fees nor continue to pay future legal fees. Pursuant to orders made on 16 February 2011, the wife had lodged a caveat over D Property which prevented the husband from encumbering it.

116On 20 May 2013, it was ordered, by consent, that the wife was to lift the caveat for the purpose of enabling the husband to borrow an amount of up to $150,000 against D Property. It was noted that she would re-lodge the caveat after the borrowing had taken place.

117Further procedural orders were made on 4 June 2013.

118The hearing resumed on 10 June 2013. Once again, Mr Hanly appeared for the wife. Ms Stewart no longer appeared for the husband. Her place was taken by Mr Rynne of Counsel. The trial continued on 11 and 12 June 2013.

119The following orders were made on 12 June 2013:

1.Within 21 days of the transcript of proceedings on 19, 20 and 21 February 2013 becoming available to the husband's counsel, the husband is to file and serve his closing submissions (limited to a maximum of 25 pages, excluding annexures).

2.Within 21 days of the service of the husband's closing submissions, the wife is to file and serve her closing submissions (limited to a maximum of 25 pages, excluding annexures).

3.Within 7 days of the service of the wife's closing submissions, the husband be at liberty to file and serve further submissions only as to facts asserted by the wife in her closing submissions which are disputed by the husband (limited to a maximum of 8 pages, excluding annexures).

4.Judgment otherwise be reserved.

120Copies of the transcript of the hearing in February 2013 were forwarded to the parties in late June 2013.

121The husband's closing submissions were filed on 9 August 2013.

122The husband's solicitors filed a notice of ceasing to act on 2 October 2013.

123The wife's closing submissions were filed on 17 December 2013

After the hearing

124On 30 December 2013, the husband filed a notice of address for service. He was self-represented. Thereafter, the husband entered into a course of correspondence with the Court. On 9 January 2014 he sent an email to the Court and the lawyers for the wife detailing recent medical difficulties and his intention to seek "a late submission for my report, also for the response to [the wife’s] written submissions". While the response to the wife’s submissions refers to paragraph 3 of the orders made on 12 June 2013, it was unclear what exactly the husband meant by "my report". The husband was nonetheless informed by email dated 28 January 2014 that, if he sought an extension of time, he would need file a Form 2 application in a case.

125The husband filed a Form 2 application in a case (with a supporting affidavit) on 14 March 2014. He sought the following order:

An indefinite stay of proceedings pending resolution of medical issues preventing [the husband] from complying with the terms of [the orders of 12 June 2013].

126In his affidavit in support of the application in a case, the husband spoke of various medical ailments from which he was suffering. For example, he referred to having suffered an injury to his right shoulder in January 2014 and of having undergone a course of physiotherapy to assist him with mobility issues. He also referred to having received injections to reduce inflammation and for pain management purposes. A number of medical letters or reports were attached to the affidavit.

127The application in a case was listed for hearing on 2 April 2014. The wife was represented on that day; the husband appeared by telephone linkup.

128At the hearing on 2 April 2014, the Court found it difficult to clarify exactly what the husband wanted. As a result, the husband was given leave to file an amended application in a case by 9 May 2014. The proceedings were otherwise adjourned to 26 May 2014.

129On or about 10 May 2014, the husband emailed to the Court a document headed "Amendment to Form 2". On 22 May 2014, he filed an affidavit attaching a medical report dated 6 May 2014 from Dr [W], a GP in Country Town D, New South Wales. The report states that the husband "is currently being treated for major depression with his treatment still being optimised". It adds that this condition "may compromise [the husband's] mental agility in relation to the current court proceedings".

130In a letter dated 19 May 2014 (received by the Court on 22 May 2014), the husband wrote:

It is a matter of considerable regret, that I confused the dates with another action, that I have in the WA Supreme Court, with respect to taxing of my former solicitors costs. I apologise most sincerely for any inconvenience to the Court, which I have caused.

131Notwithstanding the heading on the husband's document dated 10 May 2014, it did not set out any amendment to the application in a case filed on 14 March 2014

132On 26 May 2014, the husband was given until 26 June 2014 to file his response to the wife’s closing submissions. His application in a case filed on 14 March 2014 was otherwise dismissed, and he was ordered to pay the wife's costs thrown away, fixed in the sum of $864. He was required to pay the wife's costs within 90 days.

133Mr Hanly appeared for the wife on 26 May 2014. The husband represented himself, and appeared by telephone linkup from New South Wales.

134The husband communicated with the Court by email on a number of occasions in June and July 2014. It is neither necessary nor appropriate to refer to that communication in these Reasons – beyond recording that the Principal Registrar wrote to the husband on 24 July 2014 in the following terms:

I write to acknowledge receipt of your various emails.

As you are no doubt aware, the trial involving yourself before Justice Walters has been concluded. There remains only the judgment, which is currently pending.

The Court does not conduct litigation by correspondence. It follows that further communication with his Honour's Chambers is unhelpful – unless, of course, you seek to inquire as to the progress of the judgment or are minded to file a formal application for appropriate interim or interlocutory relief.

Please bear in mind, as well, that any written communication with the Court must be copied to the other party.

135No further applications have been filed by either party since that time.

General observations

136I am aware of the lengthy delay between the completion of the trial and the delivery of these Reasons. In Rollings & Rollings [2009] FamCAFC 87, the Full Court said at [67]:

The authorities … establish that if there is a delay between the conclusion of the hearing and judgment, presumably with contemporaneity of reasons, the delay is not in itself a ground of appeal and it is not … a denial of a fair trial and/or a miscarriage of justice. However the delay does mean that on appeal there has to be greater scrutiny of the findings made by the trial judge. As Giles JA said in Monie v the Commonwealth (2005) 63 NSWLR 729 at [3]: “extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge’s findings or whether the trial judge’s reasons are adequate”.

137Similarly, the Full Court in Herridge & Handerson and Ors [2011] FamCAFC 156 said that the "real issue" may be –

… whether material findings of fact made by the trial Judge, and/or conclusions reached by him in reliance upon them, could be unsafe by virtue of the time which elapsed between the conclusion of the evidence and the delivery of judgment. That in turn is more referable to a consideration of contested findings or conclusions, and the evidence upon which they were, or could be based, or its absence. If those challenges were made out, the fact that the trial Judge’s delay in delivery of judgment may have caused, or contributed to his error(s) is irrelevant. If they are not, it is difficult to see how his delay could change anything.

138Their Honours added at [22]-[23]:

If … findings of fact made by the trial Judge were not reasonably open to him, it does not matter whether that occurred because of the time his Honour took to deliver his judgment or for some other reason. That is also the case if such findings are shown to have been “unsafe”... If it is demonstrated that his Honour’s discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enlivened. …

What we have said ought not be misconstrued, however. It is regrettable that judgment was not delivered more expeditiously than it was in this case. In a case where impressions of parties and witnesses clearly assumed considerable significance, a delay of eight months had the potential to diminish the clarity of the trial Judge’s recollection of their evidence, and his assessment of its reliability. We shall subject the trial Judge’s judgment to closer than usual scrutiny …

139I accept that the parties, let alone the Full Court, are perfectly entitled to subject these Reasons to "closer than usual scrutiny". Having said that, I would record the following:

a)The delay in the delivery of these Reasons arises from workload issues affecting the trial judge. It is not the fault of the parties or their legal advisers.

b)My recollection of the parties' evidence (and that of the witnesses) has not been affected by the delay for three reasons: firstly, I made full notes of all relevant evidence and submissions during the course of the trial; secondly, I have had the opportunity to listen to the audio recording of the evidence and submissions where clarification was required; and finally, a written transcript of the proceedings is available. I have had recourse to all these resources when necessary.

c)Notwithstanding the time that has passed since the completion of the hearing, neither party has applied to reopen; nor has either party applied for contested interim or interlocutory orders (save as discussed above).

Documents relied upon

140The wife relied upon the following:

a)her trial affidavit sworn 6 September 2010 ("first trial affidavit") and updating trial affidavit sworn 26 November 2012 ("second trial affidavit");

b)her financial statement sworn 26 November 2012;

c)affidavit of [Ms F] sworn 26 November 2012; and

d)affidavit of Dennis Edward Barton sworn 12 February 2013.

141The wife’s papers for the judge were provided to the Court on 18 February 2013.

142The husband relied upon the following:

a)his trial affidavit sworn 8 December 2012; and

b)his financial statement sworn 27 November 2012.

143The husband’s papers for the judge were provide to the Court on 4 February 2013.

Orders sought

144The orders sought by the husband and the wife are set out in a combined minute of orders sought, handed up on 20 February 2013.

145The wife sought orders to the following effect:

a)The husband pay to the wife the sum of $450,000 within 60 days.

b)In default of the husband complying with (a) above, the wife be appointed trustee for the sale of D Property and upon the sale of the property the net proceeds of sale be disbursed as follows:

i)in payment of costs of sale;

ii)in payment of $450,000 to the wife;

iii)in payment of interest calculated in accordance with the Family Law Rules from the date payment was due until the date of payment;

iv)in payment of any legal costs, valuation costs or other costs reasonably incurred by the wife in connection with the sale of the property; and

408Even if the wife were to be awarded 52.5% of the total pool of $3,095,000 (which would entail an adjustment of 6.5% to 7.5% for the s 75(2) factors), she would only be entitled to property worth approximately $1,625,000. Once again, given that she would be retaining property to the value of $1,687,991, there would still be a "shortfall" of more than $62,800.

409In my opinion, however, an adjustment of 6.5% to 7.5% for the s 75(2) factors – in the circumstances described above – would be excessive. Such an adjustment would involve the creation of a "differential" of 13% to 15%.

410It follows that, whichever method is adopted, a just and equitable result is one which requires the wife to pay moneys to the husband. Having considered the parties' contributions and the s 75(2) factors, I remain of the view that the overall distribution of the parties' property as it appears in the property schedule should be on the basis of 57.5% to the husband and 42.5% to the wife.

411I am very conscious that justice and equity must be done to both parties, and am satisfied that the split I have proposed achieves that result. In other words, I am satisfied that the orders that I propose to make are just and equitable.

Orders

412I propose to make the following orders to give effect to these Reasons:

(1)In these orders –

(a)"the Payment" means the sum of $68,130 payable by the wife to the husband pursuant to paragraph 2 below;

(b)"specified interest" means interest at the rate specified in or in accordance with s 117B(2)(b) of the Family Law Act 1975 and Rule 17.03 of the Family Law Rules; and

(c)"K Property" means the property situated at Suburb P in the state of Western Australia (which property is more particularly described as Lot [X] on Strata Plan for [XXXX] and being the whole of the property described in Certificate of Title Volume [YYYY] Folio [ZZZ]).

(2)The wife must pay to the husband the sum of $68,130 within 60 days of the date of these orders.

(3)In default of the wife complying with paragraph 1 above, the husband be appointed trustee for the sale of K Property, and upon the sale of K Property the net proceeds of sale be disbursed as follows:

(a)firstly, to pay all costs, commissions and expenses of the sale;

(b)secondly, to adjust and pay all outstanding municipal and water and sewerage rates relating to K Property;

(c)thirdly, to pay the Payment to the husband, together with specified interest thereupon – such interest to be calculated from the date the Payment was due pursuant to paragraph 2 above until the date of actual payment;

(d)fourthly, in payment of any legal costs, valuation costs or other costs reasonably incurred by the husband in connection with the sale of K Property; and

(e)finally, the balance to the wife.

(4)The wife must do all acts and things reasonably requested by the husband to facilitate the listing of K Property for sale, and to facilitate access to K Property as and when reasonably required by any agent or auctioneer appointed by the husband or by any prospective purchaser.

(5)Pending the payment of the Payment to the husband (together with specified interest payable pursuant to paragraph 3(c) above), and unless the clear and express written consent of the husband has first been obtained, the wife, her servants and agents be restrained by injunction from:

(a)disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing in any way whatsoever with K Property (save for the sole purpose of borrowing sufficient funds to enable the Payment to be made);

(b)removing any fixtures or fittings from K Property; and

(c)doing, causing, authorising or facilitating any act or thing which has or may have the effect of diminishing the utility or aesthetic appeal of K Property (or any part thereof) in any way whatsoever and/or diminishing the value of K Property (or any part thereof).

(6)Each party have liberty to apply for procedural or mechanical orders for the purpose of implementing the sale of K Property and the disbursement of the net proceeds of sale in accordance with the provisions of 3 and 4 above.

(7)Except as otherwise provided for in these orders:

(a)the husband retain the property in his possession (including, but not limited to, the artwork known as "The [Paintings Collection]" and the two carpets presented to the husband in Iraq) and the wife have no legal or beneficial interest in the said property;

(b)the wife retain the property in her possession and the husband have no legal or beneficial interest in the said property;

(c)the parties each be solely responsible for any liabilities in their respective names and indemnify the other party and keep that party indemnified in relation to such liabilities;

(d)the husband indemnify and keep indemnified the wife from all debts, liabilities and obligations of the wife relating to or arising out of the property to be retained by the husband pursuant to these orders, and from all actions, proceedings, costs, claims and expenses in respect thereof; and

(e)the wife indemnify and keep indemnified the husband from all debts, liabilities and obligations of the husband relating to or arising out of the property to be retained by the wife pursuant to these orders, and from all actions, proceedings, costs, claims and expenses in respect thereof.

(8)All extant applications and/or responses relating to property settlement otherwise be dismissed.

(9)In the event that either party proposes to seek costs from the other party, the party seeking costs must, within 28 days, file and serve a minute of orders sought as to costs and any written submissions that party wishes to make ("the costs application documents").

(10)In the event that a costs application is made, the party from whom costs are sought must, within 28 days of service upon him/her of the costs application documents, file and serve a minute of orders sought as to costs and written submissions in response ("the costs response documents").

(11)In the event that any party wishes to make oral submissions with respect to costs, that party must, within 14 days of service of the costs response documents upon the party seeking costs, write to the Court requesting that the matter be listed for a special appointment and setting out:

(a)the available dates for the parties to appear; and

(b)the likely length of the special appointment.

(12)Prior to writing to the Court in accordance with the preceding paragraph, the parties must confer with respect to their availability and the likely length of the special appointment.

(13)In the event that neither party seeks to make oral submissions as envisaged in paragraph 11 above, any costs application be determined on the papers.

NOTE: These Reasons have been amended pursuant to the Slip Rule - see the Reasons for Judgment delivered 16 April 2015 (Fitzgerald-Stevens & Leslighter [2015] FCWA 33).

I certify that the preceding [412] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate