Fotia & Welsh - [2013] FCWA 112

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FOTIA and WELSH [2013] FCWA 112

CORAM: WALTERS J

HEARD: 29 NOVEMBER 2013

DELIVERED : 12 DECEMBER 2013

FILE NO/S: PTW 2032 of 2012

BETWEEN: FOTIA
Applicant Wife
AND
WELSH
Respondent Husband

Catchwords:
FAMILY LAW – Alteration of property interests – Where the relationship was short - Where the husband’s financial contributions significantly outweighed those of the wife – Where the husband failed to provide full and frank disclosure and the accuracy of his financial information could not be confirmed - Where the husband has a much greater earning capacity and is in a stronger financial position than the wife – Consideration of Stanford and Stanford (2012) 87 ALJR 74 and Bevan & Bevan [2013] FamCAFC 116
Legislation:
Family Law Act 1975 (Cth), s 75(2), s 79, s 79(2), s 79(4)(a),(b),(c),(d),(e),(f),(g),
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant

Solicitors:
Applicant:
Respondent:

Case(s) referred to in judgment(s):
B & B [2006] FamCA 883
Baker and Darzi [2013] FCWA 16
Bevan & Bevan [2013] FamCAFC 116
Biltoft & Biltoft (1995) FLC 92-614
Black & Kellner (1992) FLC 92-287
Bonacci & Bonacci [2012] FamCAFC 15
Bremner& Bremner (1995) FLC 92-560
Briese & Briese (1986) FLC 91-713
C & C (2005) FLC 93-220
Chang v Su (2002) FLC 93-117
Clauson & Clauson (1995) FLC 92-595
Erdem & Ozsoy [2012] FMCAfam 1323
Ferraro & Ferraro (1993) FLC 92-335
G & G [2004] FamCA 1179
Giunti & Giunti (1986) FLC 91‑759
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
K & K (2002) FamCA 1150
Kowaliw & Kowaliw (1981) FLC 91-092
Lee Steere & Lee Steere (1985) FLC 91-626
McMahon & McMahon (1995) FLC 92-606 at 82,043
Mezzacappa & Mezzacappa (1987) FLC 91-853
Money & Money (1994) FLC 92-485
Norbis v Norbis (1986) 161 CLR 513
Oriolo & Oriolo (1985) FLC 91-653
OSF & OJK (2004) FLC 93-191
Pastrikos & Pastrikos (1980) FLC 90-897
Pierce & Pierce (1998) 24 FamLR 377
Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Reichstein & Reichstein (2006) FamCA 1422
Reynolds & Reynolds (1985) FLC 91-632
Robb & Robb [1995] FLC 92-555
Russell v Russell (1999) FLC 92-877
Ryan & Handcock [2003] FamCA 125
Saxena & Saxena (2006) FLC 93-268
Stanford v Stanford (2012) 87 ALJR 74
Townsend & Townsend (1994) FLC 92-569
Waters & Jurek (1995) FLC 92-635
Way & Way (1996) FLC 92-702
Weir & Weir (1993) FLC 92-338
Whitely & Whitely (1996) FLC 92-684
Williams & Williams (2007) FamCA 313

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Preamble
1In 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; and
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.

Background and brief procedural chronology
2The wife was born [in] 1964. The husband was born [in] 1967. They met in mid 2007 and began living together in late 2007 or early 2008 (according to the wife) or early 2009 (according to the husband). They married [in] April 2010 and separated on 4 July 2011. It follows that their relationship lasted approximately three and a half years (according to the wife) or two and a half years (according to the husband). They divorced in July 2013.
3There are no children of the marriage.
4Both parties have been married previously. The wife was married to her first husband for 23 years. They have four children. When her first marriage broke down (in April 2006), the wife left the family home in [Country Town N] and moved to [Coastal Town P]. Her youngest child, [Child A] lives with her. Child A was born [in] 1998 and was 6 years old when the wife moved from Country Town N to Coastal Town P. The other children (two of whom were adults at that time, and all of whom are now adults) did not accompany the wife.
5The wife and her first husband divorced in 2007.
6The husband separated from his first wife in 2003. They divorced in 2008. There are two children of the marriage – [Child B] (who was born [in] 1995) and [Child C] (who was born [in] 1996). Child B and Child C remained with their mother after the marriage breakdown. They live with her in Coastal Town P and spend time with the husband according to their wishes.
7The husband pays (or previously paid) approximately $1,000 per month in respect of child support for Child B and Child C. He also pays their school fees, and various other expenses for them. Until June 2013 (when Child B turned 18), the husband was paying a total of approximately $19,000 per year for the benefit of his children.
8When the parties met in mid 2007, the wife was a full time homemaker and caregiver for Child A. She also worked for her father, or for a business associated with her father, as a cleaner on a part-time basis. She had no qualifications for paid employment, having married her first husband at a very young age and thereafter lived with him on the family farm.
9The husband was involved in a farming enterprise at or near [Country Town G]. He and his parents carried on the business in partnership. The partnership – known as [Welsh & Co] (which I shall call "the partnership") commenced on 1 July 1992. Each of the partners has a one third interest in the partnership. The profits and losses of the partnership are to be shared equally among the partners.
10The partnership owned farming land and leased other farming land; it also owned plant, equipment and motor vehicles. The farming business involved barley, wheat, cattle and sheep.
11The husband also worked as a pilot at that time, doing crop spraying and some contract charter work.
12The wife is currently unemployed. She receives Newstart allowance and some modest Government benefits. She also receives child support for Child A from her former husband. She owns a motor vehicle, but little else, and has superannuation entitlements valued at approximately $6800.
13The husband owns significant assets, including three items of real estate. He also owns shares in and controls [Crop Spraying Aviation Pty Ltd] through which he conducts his crop spraying business. In addition, he retains his one third interest in the partnership. But the husband has significant liabilities as well. He argues that his liabilities exceed his assets.
14The husband is also the trustee of a family trust, known as the [Welsh Family Trust] ("the family trust"). The beneficiaries of the family trust are the husband, Child B and Child C.
15The wife filed an initiating application on 1 February 2012. In it, she sought various orders by way of property settlement. The husband filed a response to the wife's initiating application on 2 April 2012. He also sought orders by way of property settlement only.
16A conciliation conference was held on 26 June 2012, but no agreement was reached. Interlocutory or procedural orders were made on 27 November 2012 and 13 February 2013. A further conciliation conference was held on 19 February 2013 but, once again, no agreement could be reached. The proceedings were then included in the [Coastal Town P] Circuit Defended List for hearing in mid July 2013. Directions were made for the filing of relevant material prior to trial.
17On 24 June 2013, orders were made granting the wife extra time within which to comply with her obligations regarding the filing of material for trial. Further orders were made on 14 October 2013, again extending the time within which she was to comply with those obligations. The proceedings were listed for trial in the Coastal Town P Circuit to be held in November 2013.
18The trial was held on 29 November 2013 in Coastal Town P. It occupied one day.
19Both parties were represented by solicitors at the commencement of the proceedings, but were unrepresented by the time the matter was dealt with at trial.

Both parties were self represented
20As indicated above, both parties were self-represented at trial. As a result, I was very conscious of the obligation upon the Court to provide a fair trial. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 (and, in particular, paragraphs 209-253 of that decision). I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
a)Procedural fairness was afforded to both parties.
b)The “mechanics” of the trial, and the right of each party to cross-examine the other, were explained to them.
c)Other relevant procedures were explained to the parties as they arose.
d)I explained to the parties that they had the right to object to inadmissible evidence, and explained to them – in very broad terms – the types of evidence that might be considered inadmissible.
e)Where appropriate, I attempted to clarify the substance of each party's submissions.
f)Where appropriate, I took steps as authorised by the Full Court in Guideline #9 in paragraph 253 of the decision in Re: F – Litigants in Person Guidelines (supra).

21In Saxena & Saxena (2006) FLC 93-268 at [36] and [37], Coleman J emphasised that the guidelines referred to in the previous paragraph “were no more than the name implies” and that they “derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on”. His Honour added that the Court must be concerned with “the spirit rather than the strict letter of the guidelines”.
22In the present case, both parties participated in the trial process as fully as they could. I have no doubt that they understood exactly ‘what was going on’ at all times.

Documents relied upon
23The wife relied upon her trial affidavit sworn 16 October 2013, together with her financial statement sworn 19 August 2013. She also relied upon very brief affidavits sworn by [Ms D] (on 16 August 2013) and [Ms K] (on 26 September 2013).
24The wife did not file Papers for the Judge.
25The husband relied upon his trial affidavit and financial statement sworn 21 June 2013. His Papers for the Judge were filed an 18 November 2013.
26During the course of the trial, the wife tendered a report prepared by [Mr B], a principal at [Accounting Firm K]. The report was affirmed by Mr B (who gave oral evidence) and became exhibit W2.

Orders sought
27In broad terms, and notwithstanding the precise orders set out in the application and response, both parties sought orders to the effect that they are to retain the property currently owned by them. As was made clear at the commencement of the trial, however, the wife seeks an order to the effect that the husband is to pay her a lump sum of $120,000, while the husband seeks an order to the effect that he is to pay her a lump sum of $40,000.
28The wife accepts that she will not be able to retain the former matrimonial home. As I understand her case, she will vacate the property upon receipt of whatever lump sum is ordered to be paid to her.

Relevant financial and other history
29As indicated above, the parties met in mid 2007. At that time, the wife was living with her daughter, Child A, in rented accommodation in [Suburb T] (a suburb of Coastal Town P). According to the wife, the parties commenced living together (in the wife's accommodation) in December 2007 – although she suggested an earlier date in her trial affidavit. According to the husband, they did not commence cohabitation until January 2009. I prefer the wife's evidence as to the date of commencement of cohabitation, and find that the parties commenced living together in December 2007 (which date is corroborated by the evidence of Ms D). Further, I find that the husband was well aware that the wife was subsequently in receipt of Centrelink benefits to which she was not entitled (being benefits payable to the wife on the basis that she was a single person, when she was in fact living with the husband in a de facto or marriage-like relationship). The wife received these benefits from the date of commencement of cohabitation to January 2009 – when the wife advised Centrelink that she was living with the husband. I accept the wife's evidence that she later disclosed the true situation to Centrelink, thereby incurring an obligation to repay the benefits to which she was not entitled.
30Cohabitation commenced when the parties moved into rented accommodation in [Suburb H] (also a suburb of Coastal Town P). Child A lived with the parties. The husband's children, Child B and Child C, would stay with them on weekends and occasional weeknights.
31The wife was working part-time at [a Country Town P local business] and doing some cleaning on a casual basis for a business associated with her father.
32At the commencement of cohabitation, the husband was working – presumably on a part-time or casual basis – as a pilot for one or more air charter businesses. He was also involved in work on the partnership's farming properties, or for the partnership generally.
33According to the husband, his liabilities exceeded his assets by some $120,000 at the commencement of cohabitation: husband's trial affidavit at [13]. His two most significant liabilities, however, were an amount of approximately $765,000 allegedly owing from the family trust to the partnership and an amount of approximately $938,000 allegedly owing by the husband personally to the partnership. The amount of $765,000 allegedly owing by the family trust is unexplained. It does not seem to appear as an asset of the partnership in the partnership's balance sheet as at 30 June 2008: see note [9] of the annexures forming part of exhibit W2.
34Note [11] of the annexures forming part of exhibit W2 contains a spreadsheet comprising what would appear to be extracts from the partnership's balance sheets for the years ending 2007 to 2012 (inclusive). The loan to the family trust appears as an asset of the partnership in each of the relevant years. The amount owing in 2007 was just under $775,000. The debt decreased each year until 2011, when it was recorded as being just under $645,000. The amount of the loan in 2012 is recorded as $13,562. According to note 1 to the spreadsheet, the loan "represents a loan to the family trust for land purchased in the family trust and financed by the partnership".
35According to the husband's trial affidavit at [13], he owned (seemingly in his own name, and beneficially) real estate worth approximately $1,305,000. It is likely that the real estate was acquired using borrowings arranged through the partnership, but the precise amount of the indebtedness is unclear. At [18], the husband describes the family trust as "a land owning trust" and says that it owned [Queensland Locations A, B, C, D, E, F] at the commencement of cohabitation. He asserts that the total value of these properties was $865,000. In other words, the husband appears to be saying that the family trust owned real estate to the value of $865,000, and he (personally) owned real estate to the value of $440,000.
36The husband says that [Queensland Locations C, D and E] were sold during the relationship. The sale price was $150,000. The other three properties (comprising [Queensland Locations A, B and F]) were sold after separation for a total of $715,000. Thus, the husband attributes the same value to these properties at the date of commencement of cohabitation and at the date that they were sold.
37The husband says that the proceeds of sale of these properties were used "to pay out a loan of $644,494 to the partnership, from whom the [family trust] had borrowed money to purchase the land": husband's trial affidavit at [19].
38I am not satisfied that the husband has made full and frank disclosure of his financial position at the time of commencement of cohabitation (or, indeed, at any other time). I am unable to make any clear finding, therefore, as to the husband's financial position at the time of commencement of cohabitation. I am satisfied, however, that the husband was in a much stronger financial position than the wife at that time.
39In early 2009, the husband purchased a residential property at [Property B] ("the former matrimonial home"). The former matrimonial home was registered in the husband's sole name. The house contains five bedrooms and two bathrooms. According to the wife, it had "plenty of room for the children not to get under each other's feet": wife's trial affidavit at [11]. The parties moved into the house on 1 April 2009, although settlement of the purchase of the property did not take place until later. The parties rented the property in the meantime.
40The purchase price of the former matrimonial home was $380,000. The husband says he borrowed $80,000 from the partnership to pay the deposit on the former matrimonial home. The remainder of the purchase price, being $300,000, was borrowed from St George Bank Ltd.
41In or about March 2009, the husband purchased an aircraft – which he flew throughout 2009. In late 2009 it was involved in an accident and "written off". The husband received an insurance payout of approximately $80,000. As set out below, he purchased or arranged for the purchase a second aircraft in mid 2010.
42The parties married [in] 2010. According to the wife, Child B and Child C lived with the parties and Child A for approximately 3 months after the parties returned from their honeymoon. According to the husband, Child B and Child C stayed with the parties from time to time, but did not live with them. I prefer the wife's evidence in this regard and find that Child B and Child C lived with the parties for approximately three months in mid 2010 (and that they thereafter returned to live with their mother). I accept that the wife found it stressful having the husband's children in the household for that period – due, at least in part, to the parties having a difference of opinion as to the manner in which the children should be disciplined. I also accept that, during that period, the wife made the children's lunches, took them to school and cared for them generally.
43Pursuant to consent orders made in approximately May 2010 in proceedings between the wife and her first husband, the wife received a total of $150,000 by way of property settlement. This sum was payable in three instalments. The wife received $50,000 in or about June 2010, $50,000 in February 2011 and $50,000 in February 2012. Clearly, the final payment was received after the date upon which the parties separated (being 4 July 2011).
44The wife said in her trial affidavit at [20], and I accept, that she had "no savings whatsoever" when she received the first instalment of $50,000 from her first husband in or about June 2010. The husband asked her if he, or perhaps the partnership, could borrow $45,000 from those moneys. The wife agreed to the loan, and $45,000 was provided to the partnership (in the form of a bank cheque) on or just after 7 July 2010. The loan was recorded in the partnership's financial statements. By 30 June 2011, the amount owing had been reduced to $20,000 (after the wife had been repaid $25,000 to enable her to purchase a motor vehicle). This amount ($20,000) was then "written out" in the 2012 financial statements. The husband endeavoured to explain that the liability had not been expunged inappropriately, and that it had simply been converted from a partnership liability to a debt owing by him to the partnership. According to Mr B (an accountant, and a principal of Accounting Firm K), however, the loan should not have been "cleared from the partnership accounts" in this matter, and the moneys remain owing – by the partnership – to the wife. Mr B also said that the partnership accounts do not reveal that the debt has been "transferred" from the partnership to the husband in his personal capacity, and, as far as he is aware, the debt does not appear in the husband's loan account with the partnership. I find that the amount of $20,000 remained owing by the partnership to the wife at all relevant times after 30 June 2011, and that the steps taken to remove the liability from the partnership accounts were both inappropriate and ineffective.

45In July 2010, the parties became directors of and shareholders in [XYZ Holdings] Pty Ltd ("XYZ"). The company was established as a vehicle through which to conduct the husband's flying activities (or, perhaps more accurately, his crop spraying activities).
46In June 2010 (prior to the incorporation of [XYZ) the husband purchased an aircraft [referred to as] ("the plane"). According to the husband, he purchased the plane "on behalf of the partnership", and XYZ subsequently leased the plane from the partnership: husband's trial affidavit at [28].
47The plane was purchased for $400,000. $100,000 was paid on 16 June 2010. A further payment of $100,000 was made on 21 July 2010. The plane was then flown for the benefit of the vendor between November 2010 and March 2011, at a hire fee of $100,000 – which amount was offset against the purchase price. It follows that $100,000 remains owing in respect of the purchase of the plane. The husband had intended to cause the plane to be flown for the benefit of the vendor for a further period of five or six months in late 2011/early 2012 (thereby incurring a further hire fee of $100,000 which could be offset against the purchase price), but the plane was not airworthy at that time.
48It seems that the plane was grounded in November 2011. In January 2012 the husband was informed by the Civil Aviation Safety Authority that the plane would remain grounded until certain repairs were carried out. It appears that previous repairs carried out on the plane by an aircraft maintenance company used by the husband in [Victoria] were inadequate, and unsatisfactory as far as CASA was concerned.
49Notwithstanding the direction from CASA, the husband flew the plane from approximately May 2012 until October 2012. The plane was badly damaged in an accident [in] 2012.
50Because the partnership provided the finance to purchase the plane, a series of accounting entries were created to reflect a lease arrangement between the partnership and XYZ (which operated the plane). The partnership "charged [XYZ] a hire fee, which equated to the depreciation of the asset": husband's trial affidavit at [35]. For example, in the financial year ending 30 June 2011, XYZ purportedly paid the partnership $57,509 in respect of lease payments for the plane.
51In July 2011, the wife ceased to be a director and shareholder of XYZ. The wife suggested that the husband had acted improperly in lodging documents with the Australian Securities & Investments Commission to cause her to be removed as a director and shareholder of XYZ. She asserted that she had not given permission for the relevant documents to be lodged. I do not accept the wife's evidence in this regard. I find that she well knew that she was to be removed as a director and shareholder of XYZ and that she consented to the husband taking steps to achieve that result. The wife had visited Centrelink after the breakdown of the marriage, and the parties had discussed the potential impact of the wife being a director of and shareholder in XYZ on her entitlement to Government benefits. I find that the parties formed the view that the wife's role as a director and position as a shareholder of XYZ would or might adversely affect the benefits to which the wife could otherwise be entitled and that, as a consequence, they agreed that the wife should no longer be a director or shareholder of the company. I accept that the parties discussed what they understood to be the advantages and disadvantages of the wife remaining a director and shareholder of XYZ and, in that context, the husband assured the wife that she would not be financially disadvantaged in any subsequent property settlement if she no longer had any direct interest in XYZ.
52XYZ was later renamed Cropspray Aviation Pty Ltd ("[Cropspray]"). The husband controls Cropspray in every relevant sense. It is his alter ego.
53During the period that the parties were living together, the wife undertook a number of courses. Generally speaking, they were short and inexpensive courses. They did not serve to improve the wife's qualifications for employment, and were more in the nature of self-improvement courses from the wife's point of view. It is likely that the husband paid for some or most of these courses (or perhaps all of them).
54The husband asserted that the wife spent just under $150,000 over a period of approximately three years, which moneys were treated as drawings by him from the partnership. He suggested that the moneys were used by the wife for her own benefit. I do not accept the husband's suggestion in that regard. I am more than satisfied that the vast majority of the moneys that the wife received, directly or indirectly, from the husband (or from the partnership or XYZ) were used for the benefit of the family in the broadest sense.
55The husband continued to work in the farming business during the relationship. He also worked as a pilot, doing crop spraying and some contract charter work.
56The wife continued to live in the former matrimonial home after the parties separated in July 2011. The husband "continued to meet the mortgage repayments and all other outgoings [for the property], including water rates, Council rates, land tax and insurance premiums": husband's trial affidavit at [23]. These payments were made by the partnership on the husband's behalf: husband's trial affidavit at [56]. The husband says that the mortgage payments were approximately $2000 per month and that he has paid a total of approximately $46,000 towards the mortgage since separation.
57After separation, and after XYZ changed its name to Cropspray, a large number of transactions occurred between Cropspray on the one hand and the partnership on the other. According to the husband, the transactions occurred because Cropspray had no loan facilities, so all borrowings had to be effected through the partnership and then repaid by Cropspray: husband's trial affidavit at [38]. The interrelationship between Cropspray and the partnership (in a financial sense) is less than clear. Indeed, I am satisfied that the husband intended his description of the arrangements to be less than clear – to the wife and the Court. For example, in his trial affidavit at [38], the husband said:
[In] 2012, an amount of approximately $507,000 was paid to the partnership from [[Cropspray]]. This was to cover the following payments and outgoings made on [[Cropspray’s]] behalf:
•Of the $507,000 paid into the partnership, $96,000 was transferred to [[Cropspray]]...
•$71,835 used to repay the Rural Bank Term Loan for [the partnership]. This would come from paying off the loan [[Cropspray]] had to [the partnership] in 2011 being $16,850 and turning it into a non-current asset loan to [the partnership] being $22,054. This equates to $38,904.

58In my opinion, the above explanation is incomprehensible. I am satisfied that a large number of accounting entries occurred in the financial records of the partnership and Cropspray after the date of separation for the sole (or, alternatively, the primary) purpose of obfuscating the husband's financial position and making it both difficult and expensive for the wife – and, ultimately, the Court – to understand that position. The intermingling of the financial affairs of the husband, the family trust, Cropspray (formerly XYZ) and the partnership has created significant confusion, which the husband's evidence (in both affidavit and oral form) did little or nothing to dispel. To use a colloquialism, the husband was unable (and, I find, also unwilling) to unscramble the egg. Both the wife and the Court were left to do the best they could with the limited and confusing information provided by on behalf the husband.
59As indicated above, the plane was badly damaged in an accident on 25 October 2012. The husband was flying the plane at that time. The plane was "written off" and the insurer paid out its insured value – being $420,000 (less $42,000 excess and $15,000 representing the purchase price of the damaged plane, which Cropspray acquired). In other words, the insurance company paid out a total of $363,000 (on 26 March 2013), and Cropspray retained the damaged plane.
60Since March 2013, the husband has been endeavouring to have the plane repaired as cheaply as possible. To date, he has paid $145,000 to [Acme Air Maintenance] (Victoria) for repairs. It is unclear how much he will eventually be required to pay in order to repair the plane, but it seems that the amount is likely to be in the order of $200,000 to $250,000. According to the husband, the plane in its present state is worth approximately $80,000. When the repairs are completed, however, it is likely to be worth approximately $300,000 (according to the husband's trial affidavit at [42]) or $400,000 (according to statements made by the husband at trial).
61The plane is being repaired in Victoria because it is cheaper and more efficient for the work to be carried out there than in Western Australia.
62According to the husband, he has sufficient financial resources available to him to enable the remaining repairs to the plane to be carried out. He spoke of having a "term loan" of $200,000, $50,000 "in the bank" and access to a further $50,000 in the form of the partnership's overdraft facility.
63Cropspray has continued to operate, notwithstanding the unavailability of the plane. It has been necessary to hire aircraft in order for the husband to carry out contract work. According to the husband, Cropspray’s gross income in 2012 was $1,100,000, but it was required to make contract payments of just under $216,000. Together with Cropspray’s other expenses, these payments caused the company to record a loss for the year.
64The husband currently resides in rented premises in Coastal Town P.

Property settlement – the law
Approach prior to the decision of the High Court in Stanford v Stanford (2012) 87 ALJR 74
65The following generic summary of the law relating to property settlement is substantially reproduced from my decisions in Erdem & Ozsoy [2012] FMCAfam 1323 and Baker and Darzi [2013] FCWA 16.
66Subject to what I have written below regarding the effect of the recent decisions of the High Court in Stanford v Stanford (2012) 87 ALJR 74 ("Stanford") and the Full Court in Bevan & Bevan [2013] FamCAFC 116 ("Bevan"), it is fair to say that, until the publication of those decisions, the Full Court had consistently ruled that the general approach that should be adopted in relation to a property settlement application was settled.1 The first "step" or "stage" was for the court to identify the property of the parties. It was then required to attribute a value to each item of property – usually as at the date of the hearing. Thereafter, it assessed the extent of each party’s contributions under the various sub-headings described in s 79(4) of the Family Law Act 1975 (Cth) ("FLA"). Finally, the Court considered the financial resources, means and needs of the parties, and the other matters set out in s 75(2) so far as they were relevant. An adjustment of the amount due to each party by way of contribution was then made by reference to the s 75(2) factors. It was not essential, however, that such an adjustment take place. Generally speaking, an adjustment was made because one party had greater needs and the other had stronger means.
67In relation to the contributions of the parties under s 79(4) generally, it had been held that a “global” approach would usually be more convenient than an “asset by asset” approach – although the application of an asset by asset approach does not (of itself) amount to an error of law: see Norbis v Norbis (1986) 161 CLR 513.
68The s 75(2) factors were considered to be directly or indirectly related to the process of arriving at a just and equitable result. It followed that there could be circumstances in which the justice and equity of the case, and the specific provisions of s 75(2), supported an adjustment in a party’s favour for matters which could not be described comfortably as being of financial or economic significance: see McMahon & McMahon (1995) FLC 92-606 at 82,043.
69It had also been held that, under s 79(2), the court was required to be satisfied that the property settlement orders that it proposed to make were just and equitable – and not simply that the underlying percentage division of the net value of the parties’ property was appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings was just and equitable, it was the justice and equity of the actual orders, and not of the percentage distribution, which had to be considered: see Russell v Russell (1999) FLC 92-877.
70The overall process to be applied in property settlement cases was summarised by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, where their Honours said at [39]:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), including, because of s.79(4)(e), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…

71My view was that the testing of any proposed orders by reference to s 79(2) was never a fourth substantive step (properly so called) in the property settlement exercise: see OSF & OJK (2004) FLC 93-191; see also B & B [2006] FamCA 883 at [105] and [106] and Bonacci & Bonacci [2012] FamCAFC 15, where the Full Court said at [61]:
…[The] Full Court has said on a number of occasions the so-called fourth step is not an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, a just and equitable order might be achieved based on the circumstances of the case before him or her ... (References omitted).

72At the end of the day, though, and in the majority of cases, the precise nature of the final “step” or “stage” in the property settlement exercise may not have been of any real significance. It is enough to record that the process involved the Court metaphorically “stepping back” to consider whether the proposed orders (arrived at after the application of the first three steps described in Hickey (supra)) were just and equitable.

Stanford v Stanford (2012) 87 ALJR 74
73That the above analysis represented the approach that should be adopted by the Family Law Courts had been recognised by the Full Court of the Family Court for many years. In Stanford, however, the High Court challenged the validity of that approach.
74The High Court emphasised that the provisions of FLA s 79 empower the Court to make orders “altering the interests of the parties to the marriage in [their] property” (although the proceedings are described as relating to “property settlement”). As a result, it is essential to begin consideration of whether it is just and equitable to make a property settlement order “by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in [the property available for distribution between them]”: see Stanford at [37].
75Of particular importance are [35] to [46] of the plurality decision in Stanford (under the heading The operation of section 79), in which it was emphasised that:
... the requirements of [FLA s 79(2) and s 79(4)] are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

76The plurality then spoke of “three fundamental propositions” that adhere to the power to make property orders under FLA s 79:
a)The first "step" (as was previously the case) is to identify “... according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.” The interest of parties in property cannot be altered unless their existing legal and equitable interests in the property can be identified.
b)Although the court has a very broad power to make orders in relation to property, “it is not a power that is to be exercised according to an unguided judicial discretion”. The judicial discretion must be exercised in accordance with legal principles – including the principles which appear within the [FLA] itself. Further, “because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist”. Put another way (see Stanford at [39]):
The question presented by s 79 is whether those rights and interests should be altered. (Emphasis added).

c)The consideration of the various factors in s 79(4) (including the parties’ contributions in all their various guises) does not give rise automatically to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The just and equitable requirement in s 79(2) must also be considered and applied. Thus: “to conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the [FLA]”.

77I note that the third of the above propositions endorses (indirectly) pre-existing dicta to the effect that a party to a marriage does not effectively build up an interest in the patrimony of the parties over the duration of the marriage, such that the party may be regarded as having “a presently vested interest of an ‘inchoate’ kind which exists prior to the institution of proceedings under s 79 or the making of an order under that section”: see Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133 at 77,915. The law in Australia is to the effect that rights arising under s 79 “come into existence when an order is made under that section” and that neither s 79 nor the other provisions of the [FLA] “establish rights, however described, in a party to a marriage over the property of the other spouse either arising from the existence of the marriage or the activities of the parties during that marriage or the institution of proceedings under s 79, where those rights do not otherwise exist under the laws in Australia”: see Re Chemaisse; at 77,915.
78After referring to the above three propositions, the plurality in Stanford explained at [42] that – in the vast majority of cases – the requirements of s 79(2) are fairly easily satisfied:

In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).

79Assuming a "step" or "stage" based approach to the determination of an application brought pursuant to the provisions of FLA s 79 is still appropriate, and subject to my discussion of the Full Court' s decision in Bevan, it is arguable that the effect of the High Court’s decision in Stanford is as follows:
a)The first “step” in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.
b)The second “step” involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the court that it is just and equitable to make orders altering the parties’ interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth "steps".
c)In the third “step”, the court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties.
d)In the fourth “step”, the court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established as a consequence of the previous step.
e)Finally, the court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.

Bevan & Bevan [2013] FamCAFC 116
80In Bevan, the Full Court took the opportunity to discuss the decision in Stanford and what had previously been described as "the four step process" (or, perhaps, "the three step process").
81The plurality in Bevan (Bryant CJ and Thackray J) emphasised that what has been described as "the four step process" is "no more than a means to an end, since the statutory obligation is to alter the existing interests [of the parties in their property] only if it is just and equitable to do so": see [61]. Their Honours added that "any further restatement of ["the four step process"] should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order": see [71].
82The plurality also said, at [72]:
... [Judges] would be well advised to avoid what we consider to be arid discussion of the “stage in the process” at which “adjustments” are permissible. Such discussion tends to elevate the four step process to the status of a statutory edict, when in fact it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.

83The plurality continued (references omitted):
84.Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).
85.This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. ...
86.We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a “threshold” issue. We say this for two reasons. First, as was emphasised in Stanford, the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable: ... The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process.
87.It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the [FLA] links them. ... (Emphasis added.)

84In endeavouring to explain how the provisions of s 79(4) might be taken into account in considering the s 79(2) "issue", the plurality referred (seemingly with approval) to a paper by Martin Bartfeld QC entitled Stanford and Stanford – Lots of Questions – Very Few Answers, in which it was suggested that "the contribution factors and the factors under s 75(2) [can be treated as] having two simultaneous characteristics", namely "a discretionary characteristic" and "an evaluative characteristic". Mr Bartfeld argued that "the problem of conflation can easily be overcome by clearly identifying the use to which a factor is being put".
85In a separate judgment in Bevan, Finn J said:
171.For my part, and with respect to those who may take a contrary view, I do not consider that much assistance will be provided to the ordinary person, who has to understand the operation of s 79, by the introduction of concepts such as “discretionary characteristics” and/or “evaluative characteristics” in relation to the factors in s 79(4).
172.I am concerned that the use of the expression “discretionary” may be misleading or confusing because the entire exercise of the jurisdiction under s 79 is discretionary, save, of course, when initially identifying the existing legal and equitable interests of the parties. So far as the term “evaluative” or “evaluation” is concerned, it can mean no more, in my view, than the calculation of what alteration is required to one party’s property interest or interests, to take account of matters such as the contributions or the present or future position of the other party.

86I agree with Finn J's comments. In my opinion, the approach proposed by Mr Bartfeld is unhelpful.
87At [89], the plurality in Bevan said:
In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. Ultimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues.

88Regrettably, the Full Court in Bevan did not discuss directly the clear statement in the final sentence of [42] of Stanford which – as I have indicated above – confirms that the considerations in s 79(4) should be considered after the court has concluded that it is just and equitable to make a property settlement order. Indeed, the plurality quoted [42] of Stanford in [69] of the judgment in Bevan but (intentionally, it would seem) omitted the final sentence of that paragraph. For ease of reference, it is appropriate to repeat [42] of Stanford:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4). (Emphasis added.)

89There is no hint in this paragraph (or elsewhere in Stanford) that the matters referred to in s 79(4) should be taken into account in determining whether it is just and equitable to make an order altering property interests: see, for example, Stanford at [39] and [40]. As is made clear in the final sentence of [42] of Stanford, the relevance of s 79(4) is in relation to what order (if any) should be made.
90The position is made even clearer in Stanford at [51]:
Section 79(4)(a)-(c) required that the contributions which the wife made to the marriage should be taken into account in "considering what order (if any) should be made" under s 79. It may readily be assumed that the length of the parties' marriage directly affected the extent of the contributions of the wife had made. But, as already noted, the inquiries required by s 79(4) are separate from the "just and equitable" question presented by s 79(2). The two inquiries are not to be merged. ... (Emphasis added.)

91In my opinion, the words "if any" (in Stanford at [42], and in s 79(4) itself) do not open the door to the s 79(4) factors or considerations being taken into account when considering the "just and equitable requirement". Indeed, the contrary is the case: the words "if any" mean that the consideration of the "just and equitable requirement" might result in the court being satisfied that no property settlement order is appropriate – and that, as a result, it is unnecessary to proceed to give consideration to the factors contained in s 79(4). Further, the words "if any" recognise that, because the requirements of s 79(2) and s 79(4) are not to be conflated, the court might be minded – after having considered the s 79(4) factors – not to make an order altering the interests of the parties in their property. Such a result is possible, of course, because the "just and equitable requirement" in s 79(2) is based on different criteria or considerations to those set out in s 79(4). Thus, notwithstanding that (for example) "the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship", proper consideration and evaluation of the contribution and s 75(2) factors – in other words, consideration of all the relevant factors contained in s 79(4) – could conceivably lead to the court reaching a conclusion to the effect that the ownership of the parties' property should lie where it has fallen.
92In his paper entitled Stanford and Stanford – Lots of Questions – Very Few Answers, Mr Bartfeld QC suggested that "the fact that a party has made substantial contributions, over a long period of time, which are not reflected in their asset holdings but which are reflected in the other party's assets may found a basis for finding that it is just and equitable for an order to be made". Although this passage was cited by the plurality of the Full Court in Bevan, it seems to conflate impermissibly the requirements of ss 79(2) and 79(4): see Stanford at [42] and [51].
93The reality is that it is not necessary to rely on s 79(4) considerations in determining whether the making of a property settlement order is just and equitable within the meaning and contemplation of s 79(2). The matters referred to in [42] of Stanford more than cover the example given by Mr Bartfeld. In other words, the fact that a party has made substantial contributions over a long period of time – which contributions are not reflected in his or her asset holdings (but which are reflected in the other party's assets) – clearly indicates that, upon the ending of the relationship, the "express or implicit assumptions" that the parties made during their relationship to the effect that existing arrangements of marital property interests were sufficient or appropriate no longer apply, and that it can no longer be assumed that any adjustment to those interests can be effected consensually as needed or desired. It is the termination of these "express and implicit assumptions" (on the basis of which one party was content to make substantial contributions over an extended period of time, notwithstanding that those contributions were primarily reflected in the other party's asset holdings) that makes it just and equitable to make a property settlement order, not the unrecognised contributions in themselves.
94Having recorded the above, I recognise that the Full Court has ruled that:
a)it would be a "fundamental misunderstanding" to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in determining whether it is just and equitable to make an order altering property interests;
b)the just and equitable requirement is not "a threshold issue, but rather one permeating the entire process"; and
c)while the s 79(2) and s 79(4) issues must not be conflated, "they are intertwined because the text of the [FLA] links them".

95In the present case, it is unnecessary to have regard to any of the considerations referred to in s 79(4) in order to determine whether it is just and equitable to make an order altering the parties' interests in their property. The parties separated well before the commencement of property settlement proceedings, and it is readily apparent that the express and implicit assumptions that underpinned the property arrangements they had made during their cohabitation have been brought to an end by "the severance of the mutuality of the marital relationship". As well, any assumption that the parties may have had to the effect that they could change or adjust their property arrangements consensually (as each may need or desire) no longer applies. As I have indicated below, my view is that it is just and equitable within the meaning of s 79(2) to alter the existing interests held by the parties in their property.

Full and frank disclosure
96There can be no doubt that both parties have a clear obligation to make full and frank disclosure of their financial circumstances in a timely manner: Reichstein & Reichstein (2006) FamCA 1422 at 80.
97The duty to make full and frank disclosure of one’s financial position has been set out in a number of cases determined by the Full Court over the years. Those cases were summarised in Chang v Su (2002) FLC 93-117. Full and frank disclosure is required as a matter of principle in proceedings between spouses or former spouses under the Family Law Act 1975 (Cth) (see, for example, Oriolo & Oriolo (1985) FLC 91-653; Briese & Briese (1986) FLC 91-713 and Giunti & Giunti (1986) FLC 91‑759). Where the Court cannot be satisfied as to the extent of a party’s property, it can be less cautious than might otherwise be the case when making relevant orders (see Mezzacappa & Mezzacappa (1987) FLC 91-853; Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338).
98The authorities referred to above reveal that a judicial officer is entitled to take a ”robust view” in relation to findings regarding a party’s financial position (including a party’s capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (Supra) at [71] and [72].
99In November 2002, the High Court dismissed an application by the husband in Chang v Su (Supra) seeking special leave to appeal from the Full Court’s decision. In the course of argument, Callinan J observed:
It does not matter what the principle might be seen to be, a Court has to do the best it can. It does the best it can, having regard to the evidence that is adduced, and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings that the Court can make.

100In K & K (2002) FamCA 1150 (reported as (2003) FLC 93-135 – but not as to this issue) – the Full Court said at [50] and [51]:
[It was submitted that certain cases discussed in the judgment] were authority for the proposition that where there was a finding of deliberate non-disclosure the Court could act more robustly in making findings adverse to the party who had actively misled it. We do not see that the principle should be so confined.
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied that the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances, it may be appropriate to err on the side of generosity to the party who might otherwise be seen to be disadvantaged by the lack of complete candour…

The accuracy of the financial information provided by the husband
101I have already remarked on the unsatisfactory nature of the evidence presented relating to the husband's financial position. Exhibit W2 contains examples of inconsistencies and confusing entries within the financial records of the partnership and entities associated with the husband. The husband's cross-examination of Mr B did nothing to alleviate the Court's concern that the husband had not made full and frank disclosure of his true financial position.
102The Court's role is not to audit the husband's financial records, or those of the partnership or other entities. It is for the husband to present evidence of his financial position in a clear and understandable form. That was not done. Having regard to the various criticisms and comments raised in exhibit W2, the Court cannot rely on the accuracy of the financial material presented by the husband. In essence, the Court must do the best it can with the limited information available to it.
103I am more than satisfied that the whole truth has not come out as it relates to the husband’s financial position. That being the case, the Court can readily conclude that the asset pool is greater – indeed, it is almost certainly much greater – than demonstrated during the course of these proceedings. In such circumstances, the Court is entitled to err on the side of generosity to the wife, who was the party that might otherwise be disadvantaged by the husband’s lack of complete candour.
104Generally speaking, the court must accept the parties' financial position as it finds it. The court cannot and should not, therefore, ignore genuine liabilities unless there are adequate reasons for doing so. In other words, and as indicated elsewhere in these Reasons, the court should include all items of property, and all liabilities, in existence at the date of trial.
105In Biltoft & Biltoft (1995) FLC 92-614, the Full Court said (at 82,124, references omitted):
A general practice has developed over the years that, in relation to applications pursuant to the provisions of s. 79, the Court ascertains the value of the property of the parties to a marriage by deducting from the value of their assets the value of their total liabilities. In the case of encumbered assets, the value thereof is ascertained by deducting the amount of the secured liability from the gross value of the asset. ... [The] Court ''must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it''. Where the assets are not encumbered and moneys are owed by the parties or one of them to unsecured creditors, the court ascertains the value of their property by deducting from the value of their assets the value of their total liabilities, including the unsecured liabilities.

106The Full Court continued (at 82,127-82,128):
Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred…
There is no requirement that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under s. 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse…

107In all the circumstances, I find that the husband's alleged debt to the partnership is both vague and uncertain. The husband appears to have had unfettered access to all the property and resources of the partnership – and, indeed, he appears to control the partnership's affairs in every relevant sense. The partnership appears to have been a convenient vehicle for the husband to conduct his business activities (and, indeed, to conduct the affairs of the trust). It would appear that it is only after the parties separated that he began to "repay" moneys to it. The husband says in his trial affidavit at [54] that his parents are seeking payment of some of his debt to the partnership because his father has been unwell and "needs to go into a nursing home". The husband asserts that he will have to repay approximately $400,000 in the near future for that purpose. No independent evidence was provided from the husband's parents that a request for repayment of the "loan" has been made, and I am not prepared to accept the husband's assertion in that regard without corroboration.
108In Reynolds & Reynolds (1985) FLC 91-632, the Full Court made reference at 80,108 to the evidence at trial of an accountant who spoke –when referring to the relevant family's financial affairs – of there being a single ``bickie barrel''. Their Honours said that this was –
… an accurate, if colloquial, assessment in non-accounting terms, of exactly how the family saw the financial situation. … The factual situation was that there was one ``bickie barrel'' only, namely the coffers of the husband's family ...

109I do not suggest that the current situation is identical to that described by the Full Court in Reynolds, and I certainly do not want to take the analogy too far, but it is a reasonable approximation of the type of arrangement that the husband had with his parents. In my opinion, it is disingenuous for the husband now to assert that his financial obligations to the partnership preclude him from meeting the wife's claim for property settlement.
110I have decided to ignore the husband's interest in the partnership for the purpose of identifying and valuing the property of the parties at trial. In my opinion, that interest is unclear and, to the extent that it involves a debt owed by the husband to the partnership, that debt is unlikely to ever be enforced.

Property and liabilities as at the date of trial
111As discussed elsewhere in these reasons, the first step in the property settlement exercise relates to the identification and valuation of the property of the parties at trial. It includes the identification, according to ordinary common law and equitable principles, of the existing legal and equitable interests of the parties in their property.
112Subject to comments to be made later in these Reasons, I find that the parties' property and liabilities are as follows:

Item	Owned by	Value
1	[Property A1]	Husband	$220,000
2	[Property A2]	Husband	$220,000
3	[Property B] (former matrimonial home)	Husband	$380,000
Less: Mortgage	Husband	($291,072)	$88,928
4	Husband's one third share in the partnership	Husband	Ignored
Less: Husband one third share of the partnership's liabilities	Husband	Ignored	Ignored

5	Husband's interest in [Cropspray] Aviation Pty Ltd	Husband	Ignored
6	Husband's furniture	Husband	$10,000
7	Husband's superannuation entitlements	Husband	$12,298
8	Husband's outstanding tax liability	Husband	($50,000)
9	Husband's debt to the partnership	Husband	$0	$501,226
10	Wife's motor vehicle	Wife	$15,800
11	Wife's furniture, chattels and effects	Wife	$3,000
12	Wife's savings	Wife	$600
13	Wife's superannuation entitlements	Wife	$6,831
14	Wife's debt to Centrelink	Wife	($7,114)
15	Wife's credit card liabilities	Wife	($2,974)
16	Moneys owing by wife to [Accounting Firm K]	Wife	($17,431)
17	Moneys owing by wife to her parents	Wife	($8,583)	($9,871)
Total:	$491,355

113It can be seen from the above schedule (which I shall call "the property schedule") that the total net value of the parties' property is $491,355 – of which $12,298 comprises the current value of the husband's superannuation entitlements and $6831 comprises the current value of the wife's superannuation entitlements.
114It was not in dispute that the parties' superannuation entitlements should be included in the overall "pool" of property available for distribution between the parties. In other words, neither party suggested that superannuation should be included in a separate list (see C & C (2005) FLC 93-220, at [63]), to be treated differently from the remaining items of property.
115Although most of the items contained in the property schedule were agreed, some were not.

Husband's interest in, and alleged debt to, the partnership
116As discussed above, I have decided to ignore the husband's interest in the partnership for the purpose of identifying and valuing the property of the parties at trial. The husband's interest in the partnership is unclear. To the extent that it involves a debt owed by the husband to the partnership, I am satisfied that the debt is unlikely to ever be enforced.
117I accept, of course, that the partnership exists and that each of the partners has an interest in it. It follows that by excluding the husband's interest in the partnership for the purpose of identifying and valuing the property of the parties at trial I am not making a finding to the effect that the husband does not have a legal or equitable interest in the partnership or, indeed, that the husband may not owe some moneys to the partnership. The fact of the matter is, however, the evidence before me falls far short of enabling me to make any clear finding as to the value of the interest or the amount of the debt. In those circumstances, I am entitled to take – and have taken – a "broad brush" approach to the issue of property settlement generally. In my opinion, the most sensible way of proceeding is to ignore the husband's interest in the partnership (and debt to it) at this stage of the property settlement "exercise", but to recognise the interest in the partnership and the debt to it in a general way when dealing with the s 75(2) factors.
Copspray
118The wife disputed the value attributed by the husband to his interest in Cropspray.
119Although Mr B recommended that further investigations be carried out to ascertain the value of the plane, the wife was unable (for financial reasons) to carry out those investigations: exhibit W2 at [35] to [39]. I accept the husband's evidence, however, that the plane is presently worth approximately $80,000 and that it will be worth significantly more (approximately $400,000) when the repairs are completed. I also accept the husband's evidence that the repairs are likely to cost approximately $200,000. I regard the figure of approximately $250,000 is an exaggeration, because if the repairs were to cost that sum, it would clearly have been more prudent to have purchased a new aircraft than to embark upon repairs to the plane.
120Cropspray’s financial affairs are inextricably linked with the affairs of the partnership. I have chosen to ignore the husband's interest in the partnership for the reasons explained above. I propose to ignore the husband's interest in Cropspray for the same reasons. Again, I do not suggest that the husband does not have a legal or equitable interest in Cropspray, or that his shares in it are valueless. The confused nature of the evidence presented by the husband (including in relation to the formal ownership of the plane) does not permit me to make any clear finding as to the value of the husband's shareholding in Cropspray. As with the partnership, it seems to me that the most sensible way of proceeding is to ignore the husband's interest in Cropspray at this stage of the property settlement "exercise", but to recognise the existence of Cropspray – and the husband's interest in it – in a general way when dealing with the s 75(2) factors.

Preliminary considerations
121Before proceeding further with what might be perceived as the next relevant steps in the property settlement "exercise", it is pertinent to record that I do not propose to proceed with that exercise by applying a general assumption to the effect that the parties' rights to or interests in their property should be different from those that now exist. I reject that assumption. In other words, I recognise that the core issue for determination in these proceedings is whether the parties' rights to and interests in the property contained in the property schedule should be altered: see my discussion of the High Court's decision in Stanford above.
122Is also pertinent to record that consideration of the various factors in s 79(4) – including the parties' contributions in all their various guises – does not automatically give rise to a right on the part of either of the parties to have the property contained in the property schedule divided between them by reference to those factors. The "just and equitable" requirement in FLA s 79(2) must be (separately) considered and applied. I am conscious of the need not to conflate the requirements or considerations contained in s 79(2) on the one hand, and s 79(4) on the other.
123As explained above, however, the parties in this case separated well before the commencement of property settlement proceedings. It is readily apparent that the express and implicit assumptions that underpinned the property arrangements they had made during their cohabitation have been brought to an end by the "severance of the mutuality of the marital relationship". Further, any assumption that the parties may have had to the effect that they could change or adjust their property arrangements consensually (as each may need or desire) no longer applies. It follows that it can be considered just and equitable that the Court should make a property settlement order (which order is to be determined by applying FLA s 79(4), including the s 75(2) factors): see my discussion of the High Court's decision in Stanford above. Indeed, I find that, in the circumstances of the case now before me, it is just and equitable within the meaning of FLA s 79(2) to alter the existing interests held by the parties in their property.

Contributions
124Having identified the pool of property available for distribution between the parties, I now turn to consider the next "step" in the property settlement exercise – namely, the identification and assessment of the parties' contributions in all their various guises.
125This was a very short relationship – irrespective of whether the court accepts the wife's evidence or the husband's evidence as to the date of commencement of cohabitation. As indicated above, however, I am of the view that the parties commenced cohabitation in late 2007. It follows that they cohabited for a total of approximately three and a half years.
126Because of the husband's failure to make full and frank disclosure of his financial position (in the sense discussed above), it is difficult to identify the husband's true financial position at the date of commencement of cohabitation. I find, however, that he had significant assets and resources – whether owned by the family trust, by the partnership or by the husband personally. I also accept that the husband had significant liabilities at that time – again, whether those liabilities were nominally owed by the family trust or by the husband personally. Still, he effectively controlled the partnership at that time, as he did throughout the relationship, and as he still does. If he did not bring into the relationship property in his own name, then he certainly brought into the relationship a very significant financial resource, comprising his capacity to use the property and borrowing capacity of the partnership for his own benefit.
127At the commencement of cohabitation, the wife had very little property. As a result of the property settlement with her former husband, she received $50,000 in or about June 2010 and $50,000 in February 2011. She received a further $50,000 in February 2012 (after the date of separation) – which, I accept, she has used for living expenses for herself and Child A, and on legal fees.
128$45,000 of the $50,000 received in June 2010 was paid to the partnership (which was, as I have explained, controlled or effectively controlled by the husband). $25,000 of these moneys was used to purchase a vehicle for the wife, which vehicle has since been sold. The remaining $20,000 has been retained in the partnership.
129It is unclear how the second payment of $50,000 was utilised, but I accept that it was spent by the wife for living expenses for herself and Child A both prior to and after separation. The wife may also have purchased another motor vehicle with these funds (which motor vehicle has since been disposed of).
130The wife worked on a casual or part-time basis in the early stages of the relationship. I have no doubt that her earnings at that time were modest and were used for the benefit of the family. The wife also received child support for Child A. She has admitted receiving Government benefits to which she was not entitled (but which, ultimately, were used for the benefit of the family).
131The husband worked and earned income – from the farming enterprise and from his flying activities – throughout the relationship. Although the husband's earnings were inconsistent, there can be no doubt that his income was very significantly greater than that of the wife at all relevant times.
132I accept that the wife assisted the husband in his business activities by, as she said, being a "jack of all trades", answering the telephone, paying bills and generally "running after the husband". The fact of the matter is, though, that her contributions in this regard were minimal when compared with the contributions made by the husband to the running of his business activities.
133The husband was able to obtain from the partnership sufficient moneys to pay the deposit of $80,000 on the former matrimonial home in April 2009. The balance of the purchase price, comprising $300,000, was borrowed from a bank. The partnership (or, perhaps, the husband) met the relevant mortgage instalments throughout the relationship. Irrespective of the manner in which the husband arranged for the mortgage payments to be paid, the reality is that the wife made no financial contribution to the mortgage repayments.
134I find that the husband's financial contribution to the acquisition, conservation and improvement of the property now available for distribution between the parties was overwhelmingly greater than that of the wife (although I accept that the wife contributed her modest earnings in the early stage of the relationship and – to all intents and purposes – the first two instalments of the property settlement that she received from her former husband).
135Given that the husband was primarily responsible for the conduct of the farming and flying activities in which he was involved, and that those activities required skills which the wife did not possess, I am satisfied that the husband's non-financial contribution to the acquisition, conservation and improvement of the property now available for distribution between the parties was also overwhelmingly greater than that of the wife (although I accept that the wife assisted the husband in his business activities to the extent to which she was able).
136I find that the wife's contributions to the welfare of the family were significantly greater than those of the husband. The wife was the primary home maker throughout the period of the relationship. I shall refer to the parties' contributions to the welfare of their children when considering the s 75(2) factors.

137The wife has continued to live in the former matrimonial home after separation, and the husband – whether directly or through the partnership – has continued to meet the mortgage instalments in respect of the property. Although the wife received the final instalment by way of property settlement from her former husband, those moneys were used for her and Child A’s living expenses and for legal fees. Some at least of the husband's post-separation earnings were also used for legal fees.
138In Bremner & Bremner (1995) FLC 92-560 at 81,588 and Way & Way (1996) FLC 92-702 at 83,403, the Full Court cited with approval a passage from the judgment of Fogarty J in Money & Money (1994) FLC 92-485 at 81,054, as follows:
… an initial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party, even though those later contributions do not necessarily at any particular point outstrip those of the other party.

139In Pierce & Pierce (1998) 24 FamLR 377 at [27], the Full Court sought to put Fogarty J’s quotation “in its correct context”. After referring to an expanded passage from Fogarty J’s judgment in Money (Supra) – in which his Honour said that: “… the respective contributions of the parties over a long period of marriage ‘offset’ the significance which might otherwise be attached to a greater initial contribution by one party” – the Full Court said at [28]:
In our opinion, it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution … regard must be had to the use made by the parties of that contribution.

140The relevance of initial contributions was also discussed in Williams & Williams (2007) FamCA 313. Before referring to dicta from Money (Supra) and Pierce (Supra), the Full Court said at [26]:
We think that there is force in the proposition that a reference to the value of an item as at the date of commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties. Thus, where the pool of assets available for distribution between the parties consists of, say, an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But, in so doing, it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.

141In my opinion, the parties' relationship was too short to enable the "myriad of other contributions" made by the wife to offset, dilute or erode the significance of the initial financial contributions made by the husband. In broad terms, he left the marriage in a similar financial position to that which adhered when he commenced his relationship with the wife.

Conclusion in relation to contribution
142An assessment of the parties' respective contributions is not a strict mathematical or accounting exercise. It is not always possible to balance 'like with like', in that the different forms of contribution can have very different characteristics and carry very different weight. Similarly, the timing of the forms of contribution can be telling. In a very broad sense, the exercise is what might be considered an imprecise, macrocosmic one – as opposed to a detailed, microcosmic analysis of the source and destination of each dollar passing through the parties' hands and their every action, inaction or reaction (however small or insignificant).
143In all the circumstances (including the comparatively short period of cohabitation and the period between separation and the present time), I conclude that 15 percent of the property presently available to the parties should be awarded to the wife on the basis of her contributions from the commencement of cohabitation to the present date, and the balance to the husband on the same basis.

Section 75(2) factors
144So far, in considering the question of property settlement I have dealt with the identification of the parties' property and the question of their respective contributions. The Court has power to make an adjustment to a party's property settlement entitlement based on such contributions in order to take account of, among other things, both parties' respective means and needs. The Full Court has been critical of shorthand terms being used to describe this step in the property settlement exercise, preferring to refer to it simply as “the s 75(2) factors”: see Clauson & Clauson (1995) FLC 92-595. In essence, s 75(2) is concerned with the process of arriving at a just and equitable result: see, in that regard, Waters & Jurek (1995) FLC 92-635.

Age and state of health
145The wife is now aged 49; the husband is 46.
146Neither party presented evidence regarding her or his health in admissible form. It appears that the wife has suffered stress and anxiety resulting from the breakdown of the marriage. She says in her trial affidavit at [33], however, that she has "been under a care plan with [her] doctor, counsellor and CRS team for employment" and that she is "getting the support needed". The husband said in evidence that he has certain health issues, including abdominal pain (which led to him spending five days in hospital earlier this year). It seems that the husband's health issues may be related to stress and, perhaps, a flaring up of Ross River virus – which he has had for some time.
147I accept that neither party is in perfect health, but there is no evidence before the Court to lead me to conclude that their health issues are likely to affect their respective earning capacities, or to negatively affect their quality of life or living standards.

Income, property and financial resources, earning capacity and capacity for employment
148I have already dealt with the property and liabilities of the parties as at the date of trial. I accept, however, that I have been unable to make a clear finding as to the value of the husband's interest in the partnership, Cropspray and the family trust; nor have I been able to make a clear finding as to the amount (if any) owed by the husband to the partnership.
149I have not ignored the fact that the husband's parents are equal partners with the husband in the partnership and that the husband appears to have drawn far more from the partnership than they have. Nor have I ignored the husband's assertion that his interest in Cropspray is worth $63,655 – which figure appears in a document described as "Respondent/husband's joint schedule of assets & liabilities" handed up at the commencement of the hearing on 29 November 2013.
150In broad terms, it is likely that the husband does indeed owe moneys to the partnership. I have found, however, that – irrespective of how much is actually owing – it is unlikely that the husband will ever be called upon to repay the debt.
151The husband has siblings who are likely to have an interest in the estate of the husband's parents, but there was no evidence (or no admissible evidence) presented to the Court regarding the life expectancy of the husband's parents; nor was evidence presented to the Court regarding other assets that the husband's parents may have apart from their interest in the partnership.
152Each party's earning capacity is very similar to that party's earning capacity at the commencement of the relationship. The husband has skills which enable him to earn a good, and potentially substantial, income. The wife has no such skills.
153I am satisfied that the husband has a much greater income, and a very significantly greater earning capacity, than the wife. That is not to say that the wife cannot work and earn some form of income – but she has no relevant skills and will be limited to basic office tasks or cleaning.

Children under 18
154Both parties have children under the age of 18. The wife's daughter, Child A, is 15. Child A lives with the wife, who is primarily responsible for her care and supervision.
155Child A’s father pays child support for her.
156The husband son, Child C, is 17. He lives with his mother and spends time with the husband.

Financial commitments
157There is no evidence to suggest that this is a relevant factor. It did not feature in the documents or submissions of either party.

Responsibilities to support any other person
158There is no evidence to suggest that the wife has the responsibility to support anyone other than herself and Child A.
159The husband argues that he has responsibilities to help in the support of his father, who is about to enter a nursing home. As indicated above, however, there is no evidence before the Court as to the financial position of the husband's parents. I accept, however, that the husband feels morally obliged to assist his father to find suitable accommodation in a nursing home.

Eligibility for pension, allowance or benefit
160The wife receives Newstart allowance at the rate of approximately $276 per week. She also receives a Government benefit in the form of a family payment, amounting to approximately $50 per week.
161The husband does not receive any Government benefits.
162Both parties have extremely modest superannuation entitlements.

Reasonable standard of living
163Both parties are entitled to a reasonable standard of living. The wife accepts, however, that she will not be able to retain the former matrimonial home.
164Having regard to the husband's earning capacity and the resources available to him through the partnership, the family trust and Cropspray, I am satisfied that he will enjoy a reasonable standard of living in the future. I have no doubt that he will be able to acquire suitable accommodation in which to live – even if he continues to rent accommodation.
165On the basis of the evidence currently before the Court, it is likely that the wife will struggle to maintain a reasonable standard of living. All or almost all of the $150,000 received by way of property settlement from her first husband has been spent, and the wife's current financial position reflects an excess of liabilities over her assets.

Maintenance in the context of education or retraining
166This is not a relevant consideration as it relates to the husband. It is potentially a relevant consideration as a relates to the wife, but the evidence reveals that the wife has had opportunities during the relationship to retrain (or, perhaps, to train) with a view to improving her earning capacity, and has seen fit, instead, to undertake courses for what might be considered "self-improvement" purposes.
167Given the wife's age and personality, and her lack of experience in the workforce, I am not satisfied that her earning capacity is likely to be improved by further education or retraining.

Effect of orders on creditors
168This does not appear to be a relevant consideration, and neither party suggests that it is. As indicated above, however, I accept the husband may have a debt to the partnership. I have found, however, that the husband is unlikely to be called upon to repay the debt. Having regard to the evidence before me, I am confident that the husband will be able to negotiate appropriate repayment arrangements with his parents in the event that some form of demand for payment of the debt is eventually made.

Contribution factors
169I have dealt with the issue of contribution elsewhere in these Reasons. It does not appear to be relevant to the s 75(2) factors, and neither party suggests that it is.

Duration of marriage and its effect on earning capacity
170This does not appear to be a relevant consideration, and neither party suggests that it is. The relationship was of very short duration and did not appear to affect either party's earning capacity.

Need to protect party's role as parent
171This does not appear to be a relevant consideration, and neither party suggests that it is.

Cohabitation with another person
172There is no evidence that either party is currently cohabiting with another person.

Bankruptcy provisions
173These factors do not appear to be relevant, and neither party suggests that they are.

Any other fact or circumstance
174Child A is not a child of the marriage of the wife and the husband. The evidence reveals, however, that Child A was a member of the household during their cohabitation.
175Similarly, the husband's children are not children of the marriage. They visited the husband on many occasions during the parties' cohabitation, and lived with them for a period of approximately three months.
176I accept that the wife assisted the husband with the care of his children when they were with the parties and that the husband assisted the wife with the care of Child A when he was able to do so. I accept, as well, that the husband's acquisition of the former matrimonial home assisted in providing accommodation for Child A, as well as for the wife. On the basis of the evidence currently before the Court, however, this does not appear to be a particularly significant factor.
177That contributions to the welfare of children who are not children of the parties' marriage can properly be taken into account under this general heading was recognised by the Full Court in Robb & Robb [1995] FLC 92-555. There is nothing in that case, however, that requires the Court to make some form of adjustment in recognition of such contributions – and each case must turn on its own facts: see Ryan & Handcock [2003] FamCA 125 at [18] to [23].

Conclusion in relation to s 75(2) factors
178In my opinion, the most significant of the s 75(2) factors are the imbalance in the parties' respective earning capacities and the much stronger financial position in which the husband finds himself generally. These factors are relevant to the parties' respective standards of living. As indicated above, it is likely that the wife will struggle to maintain a reasonable standard of living; on the other hand, it is likely that the husband will enjoy a very comfortable standard of living in the future.
179Having regard to the above matters, together with all the other matters discussed under the general heading of the s 75(2) factors, I conclude that an appropriate adjustment of the parties' entitlements on the basis of contribution alone is to increase the wife's entitlement by something between 5 percent and 10 percent. As it would be intellectually dishonest of me to choose either of those two alternatives, I propose to select the midpoint between the two. It follows that I conclude that an appropriate adjustment of the parties' entitlements on the basis of contribution alone is to increase the wife's contribution based entitlement by 7.5 percent. To fail to make such an adjustment in the circumstances of this case would be to run the risk of making orders which are neither just nor equitable.
180It follows that the overall distribution of the property between the parties should be on the basis of 22.5 percent to the wife (being 15 percent for contribution plus 7.5 percent to take account of the s 75(2) factors), and 77.5 percent to the husband.
181It should be recognised, of course, that the 7.5 percent adjustment to take account of the s 75(2) factors creates a disparity of 15 percent between the parties – because the wife's contribution based entitlement (being 15 percent) is increased by 7.5 percent while the husband's contribution based entitlement (being 85 percent) is decreased by 7.5 percent.
182In G & G [2004] FamCA 1179, the Full Court said (in relation to an exercise of judicial discretion such as that which I have performed in the previous paragraphs):
…[Words] will often (perhaps always) fall frustratingly short of an incontestable explanation for any particular exercise of discretion – or, for that matter, for a finding by an appellate court that a particular exercise was wrong. All the relevant factors can be described, with modifiers in abundance, but still the analysis will beg the question, “Yes, but why that figure and not another?” or “Why was that the range rather than some other parameters?”
The deficiency is unavoidable. When there are a number of “right” results available, the explanation for the choice of one over others can never be incontestable. Nor can the reasons for saying that a result is outside a range be beyond challenge. The very nature of a discretionary exercise that ascribes mathematical consequences to a batch of actions and events amenable only to descriptive evaluation, means that it is impossible to place beyond argument the explanation for all the steps to the ultimate selection of result. ...
(In) respect of virtually every exercise of discretion, by definition, it will not be possible to deliver a judgment which excludes reasoned argument that another result was available.

183For what it is worth, I concur with the Full Court’s view as expressed in the passage from G & G (Supra) quoted above. The “balancing exercise” that the Court must perform is rarely an easy or non-contentious one.

Just and equitable?
184In this case, the husband and the wife had separated well before the commencement of property settlement proceedings. The wife was living in the former matrimonial home and the husband was living in rented accommodation. The former matrimonial home is in the husband's sole name. Both parties now seek orders altering (or effectively altering) their property interests, and both recognise that whatever assumptions previously supported or adhered to the property arrangements that they had made prior to separation no longer apply. Both parties have requested the Court to make orders finally determining the financial relationships between them.
185It follows from the above that it is just and equitable for the Court to make property settlement orders: see the discussion of the High Court's decision in Stanford above. The actual orders to be made have been determined by applying s 79(4) (including a consideration of the s 75(2) factors).
186I now propose to step back (metaphorically) and consider whether the outcome achieved by my consideration of the parties' contributions and the s 75(2) factors has brought about a just and equitable result.
187If the wife is entitled to 22.5 percent of the property described in the property schedule, then she is entitled to property to the value of $110,555 (being 22.5 percent of $491,355). The net value of the property currently in her possession or under her control is a deficit of $9,871 (comprising her motor vehicle, furniture, chattels and effects, savings, and superannuation entitlements, but including her debt to Centrelink, credit card liabilities, debt to Accounting Firm K and the moneys owing to her parents). The difference between the amount to which the wife is entitled (being $110,555) and the net value of the property currently in her possession (being a deficit of $9,871) is $120,426.
188Thus, in order to achieve a 22.5 percent/77.5 percent overall split in the husband's favour, the wife should retain the items from the property schedule to which I have referred and, in addition, the husband should pay to her the sum of $120,426 - which I shall round down to $120,000 (having regard to the orders sought by the wife at the commencement of the trial).

189From the husband's point of view, the effect of these Reasons is that he should receive 77.5 percent of the property available for distribution between the parties, or net property to the value of $380,800. The net value of the property currently in his possession or under his control is $501,226 (comprising the former matrimonial home, the properties in Property A, his furniture, chattels and effects and superannuation entitlements, together with his outstanding tax liability - and bearing in mind that I have "ignored" the husband's interest in the partnership and Cropspray). On that basis, of course, he is obliged to pay the wife $120,426.
190There is a 55 percent difference between the proportion of the property to be retained by the wife (being 22.5 percent) and the portion to be retained by the husband (being 77.5 percent). I am satisfied that such a difference is proper, having regard to the provisions of s 79(4). Further, and bearing in mind that justice and equity must be done to both parties, I am satisfied that the split that I have proposed achieves that result.

Form of orders
191I propose to give the wife an opportunity to retain the former matrimonial home if she is able to do so.
192If the wife wishes to retain the former matrimonial home, the husband will be obliged to pay her the sum of $31,072 – being the difference between $120,000 and the net value of the former matrimonial home (being $88,928). The wife will then be obliged to refinance the property, so that the husband is no longer liable under the mortgage. I assume that she will use the amount of $31,072 payable by the husband to reduce the balance currently outstanding under the mortgage.
193In other words, the practical result is that the wife can retain the former matrimonial home (valued at $380,000) subject to a mortgage in respect of which approximately $260,000 will be owing.
194I accept that the wife may not wish to retain the former matrimonial home, because she may be unwilling or unable to accept responsibility for a mortgage in respect of which nearly $260,000 is owing. In those circumstances, the husband will retain the former matrimonial home and be obliged to pay the full amount of $120,000 to the wife

Orders
195The orders that I propose to make are as follows:
1.Subject to the orders contained in paragraphs 2 and 3 below:
a)On or before 14 March 2014, the husband must:
i)pay to the wife the sum of $31,072 ("the Reduced Payment"); and
ii)transfer to the wife all his right, title and interest in the residential property situated at and known as Property B in the state of Western Australia (which property is more particularly described as all that piece of land being [Lot A] and being the whole of the land described in Certificate of Title ) ("Property B ").

b)Contemporaneously with the transfer referred to in (a) above, the wife must sign all such documents and do all such acts and things as shall be necessary to discharge [the mortgage] presently encumbering Property B .

2.In the alternative to the orders contained in paragraph 1 above, and subject to paragraph 3 below:
a)On or before 14 March 2014, the husband must pay to the wife the sum of $120,000 ("the Full Payment"); and
b)Upon receipt of the Full Payment, the wife must forthwith vacate Property B , leaving it in good and tenantable repair and condition.
c)Until further order, the wife, her servants and agents be restrained by injunction from:
i)removing from Property B any chattels, fixtures or fittings which are not solely the property of the wife or a member of the wife's family;
ii)doing, causing, authorising or facilitating any act or thing which has or may have the effect of:
A)demolishing, razing, dismantling, breaking, defacing, polluting or damaging Property B (or any part thereof) in any way whatsoever,
B)diminishing the utility or aesthetic appeal of Property B (or any part thereof) in any way whatsoever; and/or
C)diminishing the value of Property B (or any part thereof),

without the express written consent of the husband having first been obtained.

3.The wife must elect whether she chooses the orders contained in paragraphs 1 or 2 above by not later than 4 PM on 17 January 2014, such election to be made in writing and directed to the husband personally – and in the event of the wife failing or refusing to so elect within the time specified, the wife be deemed to have elected the orders contained in paragraph 2 above (and paragraph 1 above be discharged with effect from that date).
4.Until such time as the wife –
a)becomes the registered proprietor of Property B pursuant to paragraph 1 above; or
b)vacates Property B pursuant to paragraph 2 above,

the husband must pay, as and when they shall full due, all instalments due under the mortgage presently encumbering Property B , all municipal and water and sewerage rates relating to Property B , all premiums for the continuation of current insurance policies on the residential property comprising Property B and all other outgoings relating to Property B , save and except for utility expenses (including gas, electricity and telephone usage), which must be paid by the wife as and when they shall fall due.
5.The wife retain the following as her sole property:
a)her motor vehicle;
b)the furniture, chattels and effects presently in her possession;
c)all moneys standing to her credit in any account in any bank, building society or other financial institution; and
d)her superannuation entitlements.

6.The husband retain the following as his sole property:
a)any motor vehicle presently in his possession;
b)the furniture, chattels and effects presently in his possession;
c)all moneys standing to his credit in any account in any bank, building society or other financial institution; and
d)his superannuation entitlements.

7.Upon receipt of the Reduced Payment (in the event of paragraph 1 above being implemented) or the Full Payment (in the event of paragraph 2 above being implemented) the wife must forthwith –
a)transfer and assign to the husband all her share and interest (if any) in the following:
i)Cropspray Aviation Pty Ltd ("Cropspray");
ii)Aircraft ("the plane");
iii)the partnership known as Welsh & Co ("the partnership"); and
iv)the Welsh Family Trust("the family trust");

b)transfer to the husband, or to his nominee, her shareholding (if any) in Cropspray;
c)resign any office she may hold in the family trust and Cropspray (including, but not limited to, the office of director of Cropspray); and
d)transfer and assign to the husband the whole of her share and interest in any loan account or indebtedness –
i)due or owing by her to Cropspray, the partnership or the family trust; or
ii)due or owing to her by Cropspray, the partnership or the family trust.

8.The husband indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to or arising out of:
a)Cropspray;
b)the plane, including repairs and/or improvements to the plane;
c)any loan account or indebtedness due or owing by the wife to Cropspray, the partnership or the family trust; and
d)the creditors of Cropspray, the partnership and the family trust,

and from all actions, proceedings, costs, claims and expenses in respect thereof
9.Unless otherwise specified in these orders (and save for the purposes of any moneys due under these or any subsequent orders):
a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such party as at the date of these orders;
b)insurance policies (if any) remain the sole property of the owner named therein; and
c)each party indemnify and keep indemnified the other party from all debts, liabilities and obligations of the other party relating to or arising out of any item of property to which that party is entitled pursuant to these orders, and from all actions, proceedings, costs, claims and expenses in respect thereof.

10.Each party have liberty to apply in relation to procedural or mechanical aspects of the implementation of these orders.
11.All extant applications otherwise be dismissed.

I certify that the preceding [195] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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1 See, for example, Pastrikos & Pastrikos (1980) FLC 90-897, Lee Steere &Lee Steere (1985) FLC 91-626; Ferraro & Ferraro (1993) FLC 92-335; Clauson &Clauson (1995) FLC 92-595; and Whitely & Whitely (1996) FLC 92-684.