Florek and Florek

[2014] FamCA 1143

FAMILY COURT OF AUSTRALIA

FLOREK & FLOREK [2014] FamCA 1143

FAMILY LAW – PROPERTY – Application by wife for property settlement – large pool of assets contributions – superannuation

Family Law Act 1975 (Cth)

Stanford v Stanford [2012] HCA 52, (2012) 293 ALR 70

Bevan & Bevan (2013) FLC 93-545
Chapman and Chapman [2014] FamCAFC 91

APPLICANT: Ms Florek

RESPONDENT: Mr Florek

FILE NUMBER: HBC 818 of 2012

DATE DELIVERED: 9 December 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 9 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trezise

SOLICITOR FOR THE APPLICANT: M+K Dobson Mitchell & Allport

COUNSEL FOR THE RESPONDENT: Mr Turnbull

SOLICITOR FOR THE RESPONDENT: Ogilvie Jennings

Orders

1. A copy of the reasons for these orders be taken out and placed on the court file and be made available to the parties as soon as possible.

2. The parties provide a form of order in accordance with those reasons, either by agreement or if unable to agree in their own forms, by forwarding an electronic version of those orders to my associate … on or before 19 January 2015.

IT IS ORDERED

1. These proceedings be adjourned to 10.00am on 27 January 2015 at Hobart for the purpose of the making of the perfected orders.

2. Leave be given to the parties to apply, six (6) months after the making of orders, for any mechanical issues of any nature to give effect to the orders.

IT IS NOTED

1. That the orders shall include provision that the wife shall reimburse the husband the sum of $66.00 (approximately) per abalone unit being the fees in respect of the fourteen (14) units that have been, or are to be, transferred to her.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Florek & Florek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 818 of 2012

Ms Florek

Applicant

And

Mr Florek

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Florek (‘the wife’) seeks property orders against Mr Florek (‘the husband’) pursuant to Part VII of the Family Law Act 1975 (‘the Act’) the parties having been married in 1990.

2. One of the assets owned or controlled by the parties are abalone fishing entitlements which are of considerable value.  The parties have other valuable assets and have an investment in a … business which is of a highly speculative nature.

3. The issues between the parties are:-

   (a)Having regard to the parties respective contributions and future needs whether there should be a division of the property on an equal basis as sought by the wife or on the basis of there being a fifty five forty five basis in favour of the husband as sought by him.  In the context of this the husband asserts that significant weight should be given to his initial contributions.  The wife asserts that significant weight should be given to the differential in spending since separation, in particular the husband’s expenses in terms of overseas travel, credit cards and the like.

   (b)It is agreed between the parties that some of the …fishing units should be transferred to her.  There is a question as to which particular licences having regard to some being liable to capital gains tax.

   (c)The parties invested about one million dollars in a … fishing business and the question is how the entitlements of the parties to the minority shareholding in that business (through an alter ego of the parties) should be managed.

BACKGROUND

1. The husband is aged 59.  He now lives in South East Queensland in the former matrimonial home with the parties’ elder daughter Ms B (who is self- sufficient).  The husband has some health difficulties in terms of a bad back apparently arising out of his diving business in years gone by.

2. He has continued to engage in the fishing business, albeit not through diving, since the parties moved to Queensland in the mid 1990s.  He has engaged in the fishery business in various ways since that time.

3. The wife is aged 54.  Her health is not an issue in these proceedings.  The wife had trained as in health care, but has not worked in that capacity for many years.  The wife has re-partnered and lives with her partner in rented accommodation in South East Queensland with the parties’ younger daughter.

4. The parties commenced cohabitation in 1983.  Initially there seemed to be some issue in relation to this however the husband conceded that circumstance in cross-examination.   At the time the parties commenced cohabitation the husband had equity in a property at C Town and had a commercial fishing licence.

5. The husband asserted that he had paid $80,000 for that licence some years before and had borrowed about $40,000 to fund that purchase together with the proceeds of sale of a property.  The loan was secured through the Polish Credit Union and supported by a guarantee from his father.

6. The wife asserted that there were liabilities of about $40,000 at the time the parties commenced cohabitation, the husband claimed that it would have been less than that amount.

7. At the time of cohabitation the wife owned an interest in a motor vehicle.

8. In 1985 or 1986 the Tasmanian Government changed the laws relating to fishing.  The consequence of those change of laws was to make the licence owned by the husband into a very valuable entitlement.  In 1985 the husband set up the Florek Trust of which D Pty Ltd was the trustee.

9. The husband is the appointer under the trust and to all intents and purposes has control of it and its assets including its income.

10. There is no issue between the parties that the trust is property of the parties and should be treated as such in terms of the pool of property.  The trust was altered after separation to provide that on the death of the husband the wife would not otherwise be an appointer in relation to it.

11. As indicated earlier there are two children of the relationship.  Ms B aged 24 who is relatively self-sufficient and who lives with the husband and Ms E who is completing some training and is aged 19.

12. It is not in issue that the husband was engaged in paid employment in the fishing industry during the whole of the period of the parties’ relationship and that the wife was the primary carer of the children and primary homemaker.  There is an issue between the parties as to the extent that the husband was involved in the non-financial contributions.

13. The wife did from time to time have the assistance of a house cleaner.

14. In 1990 the parties married.

15. In 1997 the parties and their children moved to live in Queensland and the husband engaged in other business activities.

16. There is an issue about the date of separation of the parties.  The wife claims that the separation occurred in April 2010 after a particularly unhappy event.  The husband says that the parties did separate at that time but reconciled about five or five and a half months later then separated in December 2010.  Either way it makes little difference in terms of the lengthy relationship of these parties over about twenty seven years.

17. The wife asserted that there was violence at the time of separation, but makes no claim that it is violence as would have any impact upon the adjustment of the property between the parties.

18. F Pty Ltd is a Company established by the husband in 1989 of which he is the sole director and shareholder.  It owns shares in Company G, a public company which cultivates produce in which the parties have, through F Pty Ltd, invested about one million dollars.  The wife seeks a payment to herself in relation to the equity in that Company.  The husband asserts that the company is speculative and may be worth anything from nothing to a higher level and seeks orders that the shareholdings be divided in accordance with the percentage determined by this court.

19. The wife has formed another relationship.  Her partner is Mr H.  He earns about $80,000 per year, and he and the wife share expenses equally.  They have been together for about two years, and he has just sold his business.  Although he continues to work on some basis for the company which purchased it the wife does not know the amount he is paid. 

20. As I said, there’s an issue as to how the Court deals with the shares in the company.  With the exception of the shares which are retained in the superannuation fund, on which, as I understand it, no submission was made, there is a further issue in that the husband, through F Pty Ltd, had one-third share in a fishing business. 

21. The business and the boat have now been sold; however, in 2010 the boat involved in an incursion into a National Park.  The husband deposes that the other two-thirds owner of the business, I Pty Ltd, may not be in a financial position to meet any fine.  The husband has been informed that contraventions may attract civil penalty, and evidence was given yesterday in relation to the penalty units and the costs, which could be up $250,000.  The value of F Pty Ltd being about $208,000. 

22. These proceedings were commenced by the wife in October 2012, and each of the parties has been legally represented.  The parties engaged in mediation in 2013 and believe they had an in-principle settlement; however, a number of issues arose which prevented the implementation of the settlement.  It is intended that the wife retain the motor vehicle which she currently uses, which is owned by the family trust, and either 10, 12, 14 or 16 of the abalone units, depending on the percentage adjustment that may be otherwise.  There may be otherwise a cash adjustment between the parties. 

23. The husband would retain the trust, its assets, the parties self managed superannuation fund, F Pty Ltd, with the exception of 45 per cent of the Company G.  At the commencement of the trial the husband said he wished to retain the home at J Town, Queensland; however, given evidence of Mr K, an accountant, yesterday, it is clear that that is not something which the husband can hope to achieve, and each of the parties now seek orders that that home be sold.  This is sought in the circumstances that the trust has liabilities of about $1.3 million to the National Australia Bank and an overdraft of just under $300,000. 

24. In these reasons any statement of fact is to be regarded as a finding of fact.

THE LAW

1. The law regarding the treatment of property is under some level of refocus and review following the High Court decision in Stanford v Stanford.[1]  Prior to that decision the preferred (although not uncontroversial approach ) was the four stage process reflected by the Full Court in cases such as Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

   [1] [2012] HCA 52, (2012) 293 ALR 70.

2. Following Stanford v Stanford (supra) the Court must firstly satisfy the requirement of s 79(2), that any order must be “just and equitable”, before then examining what orders should be made under s 79(4).

3. This approach was later adopted in Bevan & Bevan[2], where Bryant CJ and Thackray J noted that the Stanford and Stanford (supra):-

   decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so. [3]

   [2] (2013) FLC 93-545.

   [3] Ibid at para 65.

4. In Chapman and Chapman[4]the Full Court considered the independence of ss 79(2) and 79(4) and agreed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ confirmed:-

   Section 79 demands a consideration, separately, of all of its requirements without conflation.

   [4] [2014] FamCAFC 91.

5. However, their Honours disagreed with any intention of plurality found in Bevan v Bevan, (supra) in that the Court must consider the matters in s 74(2) when addressing s 79(2) of the Act. This was in view of the opposite approach adopted by the High Court in Stanford. Bryant CJ in a separate judgment noted:-

   Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …

6. Accordingly, there are tasks I must complete when determining a division of property.  These are:-

   1.identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property;

   2.consider whether in the circumstances of the parties it is appropriate and just and equitable for order to be made with regard to s 79 of the Act; and

   3.consider any relevant contribution and other matters that should be taken into account under s 79(4) of the Act.

EVIDENCE

THE WIFE

1. The wife relied upon her evidence contained in her affidavit of 21 October 2014.  In addition, she gave oral evidence and was cross-examined. 

2. The wife also read into evidence the affidavit of Ms L filed 21 October 2014.  Much of that affidavit was excluded; however, some parts were left in and Ms L was cross-examined. 

3. The wife tendered a bundle of documents:- 

   (a)Exhibit W1;

   (b)details of abalone quota units, Exhibits W2 and 3, 4 and 5;

   (c)resolution of the trust showing the proposed distribution for parties and F Pty Ltd for 2014, Exhibit W6; 

   (d)an email in relation to the access to furniture, Exhibit W7; and

   (e)emails in relation to the payment of rent, Exhibit W8. 

4. The wife gave evidence in accordance with her affidavit.  She gave evidence frankly and clearly.  At times her evidence was subjective, although she made admissions against interest from time to time, such as her acknowledgement of the hard work of her husband and her desire for him to cease working as a diver in about 1997.  She conceded in cross-examination that she initially supported her husband in relation to Company G, but as the debts became greater and their marriage moved and eventually ended she became less enthusiastic about the investment. 

5. She acknowledged that the husband was a hard worker and that he was a social man.  The wife conceded that the husband was involved in the agitation for quotas in 1985 and later arrangements to split the licences into 28 units.  The wife acknowledged that the husband had invested in boats and thought that was a sound investment, although the question of the fine will have some bearing on the overall outcome of that investment. 

6. The wife said the children went to private schools and that the husband was a good provider.  She was criticised for two overseas trips.  She gave evidence that these were funded by her partner and was for a short duration in which she made few contributions.  One of the concerns the wife had was in relation to monies in the superannuation fund, of which she asserted the husband did not disclose when pressed. 

7. In cross-examination she conceded she may have misunderstood or the husband may have misunderstood the material and the funds were properly set out in the draft balance sheet at the time.  I'm generally satisfied that her evidence, although subjective, was endeavoured to be frank and reliable.  She also tendered a letter from Wilson Baker lawyers relating to the settlement of the M Town property showing payment to the parties of $59,844 in Exhibit W9. 

THE HUSBAND

1. The husband relied on his affidavit of 24 October 2014.  He gave oral evidence in relation to that affidavit.  He also tendered a bundle of documents to which I will refer to later.  The husband was cross-examined primarily in relation to his spending.  He was reluctant at times to concede the level of personal spending, but did so when pressed.  At times he was cautious about making admissions and sometimes about remembering spending funds such as legal costs. 

2. The licence which was owned by F Pty Ltd was sold for $239,000.  Originally that had been valued at $102,000.  From his share the husband reduced the overdraft by about $100,000, paid part of the monies to the superannuation fund and GST of $21,000. 

3. The husband also sold the fishing vessel.  The husband arranged for distribution to the children, and whilst they are entitled to those distributions, they were not sought.  However, the husband does not anticipate they should be refunded to him.

4. The husband was cross-examined in relation to the payment of valuers and mediation fees, to which I have alluded elsewhere, that they came from joint funds.  He gave evidence in relation to the fine.  His evidence was at times somewhat self-serving, but I am not satisfied he was endeavouring to hide assets.  He has certainly undertaken a significant spending process, including applying the sale of the house at M Town to the trust, which he has then allocated to the children.  The husband from time to time made admissions against interest, such as the application of the $32,000 taken out of the superannuation account shortly before the hearing.  I treat his evidence with caution, but it was not significantly impeached.

MR N

1. Mr N gave evidence in the form of an affidavit.[5]  He was not cross-examined and his affidavit was read into the evidence, but he confirmed that he acts for F Pty Ltd and I Pty Ltd in relation to the contraventions.  He annexed to his affidavit the originating application.  These proceedings are set down for hearing on 16 December 2014 at the Federal Court in Canberra, and in those proceedings it seems that the Minister is seeking a pecuniary penalty of between 95 and 130 thousand dollars plus costs that are likely to be in the sum of $50,000 to $100,000.  The husband through his company is seeking that that fine be somewhat less. 

   [5] Filed 8 December 2014.

2. I had raised with the parties whether I should deliver the reasons today or whether I should wait until the outcome of those proceedings.  Given that it may take some months and the amount is confined to between nothing and $208,000 and the value of F Pty Ltd, I determined to deliver reasons today, as the outcome will, in the end result, bearing in mind the approach I intend to adopt to not make significant change, whether that is included or not included, and it is a debt to which the parties through their assets should be liable in the proportions that I determine, given that there is no evidence of misfeasance or malfeasance on the part of the husband. 

MR O

1. Mr O is a specialist fishing broker in Tasmania and runs his own fishing broking valuation practice.  He has worked in that role since the early 1990s, and both parties conceded his qualifications. 

2. He swore an affidavit on 22 October 2014, filed 24 October 2014 which was read into evidence.  He updated the valuations of the units to about $170,000 each and said if those units were fished in 2015, they would be worth between $10,000 and $12,000 at least, depending on the circumstances of the vendor and obviously the willingness or unwillingness of any purchaser.

3. Mr O gave evidence that the value of the husband’s commercial licence in 1983 would have been about $200,000, and I accept that evidence.  He also gave evidence of the history of the licences to which I have had regard and which I accept.  He said part of the value of the licences was not only the legislation but the enforcement of the legislation which assist in their valuation.  I accept the valuation and historical evidence of Mr O, including that the licences should earn about $15,000 per year in income. 

MR K

1. Mr K is a chartered accountant who provided evidence in accordance with his affidavit sworn and filed 5 December 2014.  The affidavit was read into evidence without objection.  Mr K is an accountant for the husband, the Florek Trust, F Pty Ltd, the parties’ superannuation fund and apparently I Pty Ltd.  There was no challenge to Mr K’s qualifications.  He gave evidence that the trust owns lots in Company Q which may be entitle a distribution from the liquidators.

1. The parties have a debt of $293,000 to the National Australia Bank for those lots.  It is agreed between the parties that those Company Q lots, are to be assigned to the husband together with the liability of $293,000, and the liability is to be treated as a liability for the purpose of calculation of the pool of assets or the distribution of assets or property between the parties.  It is also agreed that once there is a payment out, and there is likely to be a payment out of the Company Q units or shares, that is to be divided between the parties after adjustment of tax on an equal basis.  I will accept and adopt that view and request that counsel draft appropriate orders in that respect. 

2. Mr K gave evidence of the children’s entitlement.  The Florek Trust owes Ms B $124,723 and Ms E $71,849.  That sum includes the sum to each of the children of $29,912.17 given to the children by the trust in January 2013.  That gift was made to the children by the parties, although it is the wife’s case that when the money went into the trust, even though it has been credited to the children that the husband spent the money and it ought not to have been spent.  She wants that dealt with in adjustments between the parties. 

3. The children have not been given notice of these proceedings and not been given any notice in relation to any challenge to their entitlements.  As such, I intend to do this in respect to the amounts due to the children:  I will not include them in the value of the trust; however, I will be making orders requiring the parties each to give notice to the children of their entitlement to $124,723 and $71,849 and of their parents indemnities to the children, as to forty five per cent by the wife and fifty five percent by the husband, if and when any claim is made.  When the Florek Trust, which will be the alter ego of the husband, pays either or both children any amount, the wife shall be responsible to indemnify the husband for the proportion that I have determined [namely 45 per cent] of that amount.  I invite counsel to draft appropriate orders to that end and to adjust the valuation of the trust to ignore those liabilities, given the indemnity.

4. Mr K gave evidence as to the impact of the partial property settlement and urged me not to do so, but, when cross-examined by Mr Trezise, conceded that either sort of property settlement would cause the same impact on the husband. 

5. I have said to the parties that I will be making orders transferring a number of abalone units to the wife, including unit 506.  However, I will be ordering that that number divided by 32 as a percentage [that is 44 per cent] will be her responsibility in terms of payment of interest in respect of the two substantial trust debts of the overdraft of about $300,000 and of the $1.3 million to the NAB until the completion of the sale of the home, after which time they will be the responsibility of the husband.  As to how the parties will work that out between themselves will be a matter for direction and I will be giving leave for the parties to apply in respect of that if there is a delay in the sale of the house. 

6. I will also be ordering the sale of the licence entitlement, which has a value of $120,000, but, according to Mr O, can take some time to sell.  I will be directing that the proceeds of that will be paid in the proportions that I determine between the parties, or in payment of liabilities of the parties in those proportions in terms of the ultimate wash-up of their property settlement.  From that will be deducted any costs of the sale and any fees that may be outstanding or incurred between now and the sale of that entitlement by way of fees to government for the licence or for the entitlement and/or the lot.

7. I accept the evidence of Mr K.  Mr K also gave evidence which, in essence, constituted financial advice to the wife.  It’s a matter for her to take up whatever advice she wants to take up and act on that advice as she chooses.

MR R

1. Mr R gave evidence and tendered his report, which is Exhibit H4 of 8 December 2014.  The valuation of the trust will now to be adjusted in a number of respects.  The diving entitlements, although valued at nil, will need to be taken out.  The overdraft will need to be increased to $290,745, and the liabilities to the two children will be deleted, although I note what I have said earlier in relation to that.

PROPERTY OF THE PARTIES

1. As to the property of the parties, Exhibit H5 provides a list of agreed property.  There is very little in issue between them.

Assets
Husband’s NAB Account No. … (as at 29.08.14)	$378.80
Wife’s Personal Bank Accounts (as at 24.07.14)[6]	$2,818.37
Household contents[7]	To be divided in specie
Property at S Street, J Town, QLD (registered in Wife’s name)	To be sold
Company Q lots	Nil
Wife’s inheritance	$67,000.00
Licence	To be sold
Florek Trust	$2,306,535.00
(includes wife’s car @ $14,479 and fishing units @ $170,000 and Company G shares)
F Pty Ltd	Nil - $208,304.00
Florek Superannuation Fund No. 2	$2,250,313.00
Husband tax refund	$2,891.31
Husband’s legal fees	$57,864.99
Wife’s legal fees	$9,916.69
Liabilities
Husband’s Virgin Money Credit Card No. …	$22,535.00
Husband’s American Express Card (as at 01.07.14)	Nil
Husband’s ANZ Visa Card No. … (as at 23.07.14)	Nil
Fishing licence fine	$95,000-$130,000.00
Fishing licence case AG fees	$50,000-$100,000.00
Legal fees re fishery case to 4/12/14	$25,739.51[8]
F Pty Ltd tax payable	$16,426.00
Ms Florek tax payable (est)	$5,000.00
Ms E Florek tax payable	$447.93
Ms B Florek tax payable	$4,021.34
Accountants costs for preparation of financial statements and income tax returns for Florek Trust, Ms B Florek and Ms E Florek (exclusive of GST)	$6,500.00
Accountants costs for provision of detailed information to Mr R to complete Single Expert Report and answer all queries of Single Expert (exclusive of GST)	$5,190.00
Home loan account no. …	$534,958.85
Business loan account no. …	$293,000.00
Flexi Plus mortgage	$70,574.80

[6] Varied from $9,818.37 to $2,818.37 given my determination.

[7] If requested I will make orders for two lists in terms of division of this personal property.

[8] This figure will increase to the conclusion of the matter

1. The superannuation fund was valued by Mr R, and its value was set out in his report and is seemingly accepted by the parties as set out in the statement of assets and liabilities at some $2,250,313. 

2. It is agreed by the parties, given the age of the husband, that this should be treated as a non-superannuation asset and should be included in the single pool.  As I understand it, there needs to be no splitting order in relation to the superannuation fund.  If there is, the parties can draft a splitting order to split the whole lot to the husband, and I invite them to do so. 

3. In the wife’s affidavit she deposes that she has savings of some $9,817.  Of that sum, $7,000 represents money that she is holding in trust for her daughter Ms E.  The husband does not dispute that circumstance.  Accordingly, I will be adjusting the money in the wife’s personal bank account to $2,818.37 and note that $7,000 is being held in trust for Ms E. 

4. The wife inherited the sum of $67,000 approximately from her mother’s estate when she passed away in April 2014.  The wife asserted that that sum should be excluded from the property to be divided, given that no contribution was made by the husband to that property.  Given the approach I intend to adopt with regard to the adjustment of property, and that this gift arose after separation and in the context of the holistic approach to contributions, I will accede to that request and will not include that in the totality of the assets and liabilities to be adjusted between the parties. 

5. There will also need to be a further adjustment in terms of the Florek Trust by way of transfer of the car owned by the trust to the wife at a value of $14,479 which will then reduce the value of the trust by that sum.  That vehicle will be transferred to the wife. 

6. The wife raised the question about the cash in F Pty Ltd.  I will deal with that cash in terms of the whole adjustment between the properties; otherwise I will leave that property in F Pty Ltd. 

7. I note that the parties had agreed that they will divide the furniture and they will do so between now and 27 January 2015.  I urge them to do so as a matter of urgency, otherwise I will consider on that date an order for two lists or something along that basis.  That may be somewhat difficult, but it seems to be the only alternative unless the parties reach agreement. 

8. I note the parties have agreed that the property at S Street, J Town, is to be sold.  I make an order that the wife contribute to the interest of the two loans secured by the mortgage (the $1.3 million and the overdraft interest of up to $300,000) as to 44 per cent from 1 January 2015, when the 14 fishing units will equitably vest in her. on that property or the other expenses as the husband has occupation of it, orders need to be prepared in relation to the sale of that, and that there is nothing to stop the parties from listing it for sale sooner rather than later. 

9. The shares in Company G, excluding those in the superannuation fund, are the subject of some unhappiness.  It is the wife’s concern that she does not wish to be further involved and wants a clean break.  The husband’s view is that the parties made an investment which has not been the best of investments and that he should not be left to carry the whole of the burden in relation to those losses. 

10. The value for the purpose of the Florek Trust is some $267,934.  Given that this was a transaction or an arrangement that the parties entered into before separation and it was part of the hurly-burly of the marriage, I intend to order that a proportion of that property or those shares be transferred to the wife in accordance with the distribution as I will determine. 

CONTRIBUTIONS

1. At the commencement of the relationship, the wife had a motor vehicle, and this is in no way critical of her, she has worked extraordinarily hard over a long marriage, as has the husband.  They both committed themselves in their own various ways to this relationship and marriage.  A substantial asset of that was the fishing licence.  It had a considerable value at the commencement of the relationship and that value increased very substantially within a year or two after the relationship started.  It was significant, and it does not fall into the level of any windfall.  There was some good fortune attached to it but it was not in the form of buying a lottery ticket or the like. 

2. When the parties moved to South East Queensland, and notwithstanding the income-producing assets in the licence, they invested in real estate and engaged in fishing business.  But for the errors of a captain on one of the boats, the fishing business would have been successful, and the real estate venture was reasonably successful.

3. The wife was employed at the time the parties commenced cohabitation.  There was an issue as to whether the wife voluntarily gave up her work or that she was induced to do so by the husband.  Frankly, it makes little difference.  The parties engaged in a joint enterprise in their marriage, and from the commencement of the relationship the wife undertook the primary role, as I said, of homemaker and carer of children.  I accept her evidence that she undertook that task often in the absence of the husband who was away fishing or on other work-related activities.  I am satisfied that during the course of the marriage they both contributed equally.  The wife does not have the management skills or money skills of the husband.  She left those tasks to him.

4. After separation the husband had control of the assets of the parties and paid the wife $2,000 per month by way of distribution or income, and he paid the wife’s credit card, which he assessed at some $58,000 over a three-year period.  That is paragraph 77 of his affidavit.  However, the husband paid himself a significant amount of money.  On first blush, that was an extraordinarily large sum; however, it appears that it was well in excess of that of the wife, but not to the overwhelming excess that I had first considered. 

5. In terms of the other factors, each of the parties will be left with significant assets and the income which will derive from that.  Each of the parties are in relatively good health, apart from those matters to which I have referred to earlier, and nothing of which will prevent the husband from continuing to engage in business nor from the wife continuing in her relationship.  Their children are adult and the wife, whilst she does not have a significant income-earning capacity, will have the assets of the parties which will earn income for her. 

6. I do not give weight to the wife not having a superannuation fund, as I have determined that the superannuation ought to be treated as ordinary property and non-superannuation property. 

7. I have had regard to the case law to which Mr Trezise took me, of which I have read, and there is a continuing debate on how adjustment ought to be made.  It is still appropriate for the Court to make an adjustment on a percentage basis, and I propose to do so in this case, given all of the matters to which I have alluded to earlier.  

8. As such, I am keen to order division of property on the basis of 45 per cent to the wife and 55 per cent to the husband.  I intend to order that the husband transfer 14 abalone units to the wife, including the unit 506.  I will direct the practitioners for the parties to prepare orders to give effect to this approach and have them forwarded to my chambers on or before the 19 January 2015.  Those orders will include:- 

   a)the sale of the property at J Town; 

   b)the transfer of those 14 abalone units, including unit 506, as and from 1 January 2015 with fish, but with the wife to contribute fourteen-thirty-seconds of the interest payment in respect of those two loans, being the NAB loan of $1.3 million and the overdraft interest of up to $300,000; 

   c)that the wife will transfer any equity or entitlement she has in relation to the trustee, D Proprietary Limited, the trust, F Pty Ltd or I Pty Ltd;

   d)that the husband retain his NAB account; 

   e)the wife retain her personal account, including the money held in trust for the daughter; 

   f)that the husband have transferred to him the Company Q lots;

   g)the wife retain her inheritance, and,

   h)the diving entitlements sold; 

   i)the car be transferred to the wife; 

   j)the husband be responsible for his tax refund or be entitled to that and each party retain their interest in the legal fees paid and set out in Exhibit H5; 

   k)that the husband be responsible for the liability to Virgin Money Credit Card, and I have had regard to the submission by the wife that I will treat that as a liability for the purpose of this adjustment;

   l)the liabilities in respect of the tuna fishing fine, the tuna fishing licence case fees, the legal fees, that this be adjusted proportionately in relation to the assets of F Pty Ltd to the extent of $208,000 on the basis of 45/55. 

   m)In relation to the tax of the children and the debts of the children, that the wife’s tax will be on the basis of the 45/55; similarly, the liabilities to the accountants referred to in Exhibit H5 plus those of Mr O and Mr R. 

   n)The home loans will no doubt be paid out on the sale of the home;  the husband to make the normal repayments of principle and interest and council rates, water rates and the like, pending sale. 

   o)the business loan in relation to the Company Q lots is to remain with the husband.

   p)The Flexi mortgage loan of $70,574.80 is to be a liability of the wife as and from the date of the orders or as and from 1 January 2015. 

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on

9 December 2014.

Associate:     

Date:              9 December 2014