Gapes and Gapes

FAMILY COURT OF AUSTRALIA

GAPES & GAPES

[2010] FamCA 1050

FAMILY LAW – PROPERTY SETTLEMENT – history of alcohol abuse by mother – father assumed greater homemaker and parenting role post separation – financial contributions made by the parents of each party – superior earning capacity of husband

Family Law Act 1975 (Cth)

APPLICANT:

Mr Gapes

RESPONDENT:

Ms Gapes

FILE NUMBER:

SYC

1253

2008

DATE DELIVERED:

24 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

27 - 28 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

COUNSEL FOR THE RESPONDENT:

Mr Anderson

Orders

Within 28 days of the date of these Orders the wife shall do all acts and things and sign all documents as may be necessary so as to transfer to the husband the whole of her right, title and interest in the property situate at and known as C in the State of New South Wales, Folio Identifier … (“the C property”).
Simultaneously with the transfer in Order 1 above, the husband is to pay to the wife the sum of $170,516.45 and do all such acts and things as may be necessary to discharge the wife from any and all her liability under the terms of a mortgage or mortgages charged on the C property and from this date shall hold her indemnified from any liability thereunder.
In the event the husband fails to make the payment referred to in Order 2 above within the time limit, then the parties are to do all acts and things and sign all documents necessary to sell the C property for the best price reasonably obtainable and the following are to apply, unless agreed to the contrary:
(a)the parties are to list the C property for sale with an agent agreed upon by the husband and the wife within seven (7) days of the expiration of the time referred to in Orders 1 and 2 above and failing agreement the husband shall forthwith in writing nominate three (3) agents from which the wife shall within a further seven (7) days select one and failing which the husband shall select one who shall be the agent appointed (“the agent”)
(b)the parties are to execute all documents requested by the agent for the sale of the C property and in the event that the husband and the wife cannot agree on the terms of the agent’s contract within seven (7) days of the agent being selected, the contract is to be in the agent’s standard terms and with the agent’s standard fees
(c)the parties are to give such instructions as are necessary to a solicitor agreed upon between the husband and the wife within fourteen (14) days of the date of the coming into operation of Order 3 of these Orders and failing agreement the husband shall forthwith in writing nominate three (3) solicitors from which the wife shall within a further seven (7) days select one or failing which the husband may select one, who shall be the solicitor appointed (“the solicitor”)
(d) the sale is to be by way of public auction as soon as practicable
(e)the reserve price for that auction is to be $825,000
(f)in the event that the C property does not sell at the first auction, then it is to be marketed for sale with the agent by way of private treaty for a further period of three (3) months during which time the husband and the wife shall accept any offer made to purchase the C property within 5% of the reserve price of the first auction
(g)in the event that the C property is not sold at the first auction and is not sold in the period provided for sale by private treaty, it shall be marketed for sale by public auction on a date within six (6) weeks of the conclusion of the period for sale by private treaty and the reserve price shall be a sum agreed between the parties in writing and failing agreement, a sum that is 5% below the reserve price of the first auction. Thereafter, the C property shall be submitted for sale by private treaty and auction until sold, and the provisions of these Orders shall mutatis mutandis apply
(h)each party shall attend any auction pursuant to this Order and in the event that the reserve price set for that auction is not reached they shall negotiate with the highest bidder and shall accept any offer to purchase made within 5% of the reserve price set for the auction
(i)the parties are to pay equally all necessary and reasonable costs in relation to the sale of the property
(j)the husband is to pay all council and water rates and insurance whilst ever he remains in occupation of the C property, and on him vacating the same such costs are to be borne equally
(k)each party is entitled to bid at auction, as permitted by law and on completion of the sale the proceeds of sale are to be paid as follows:
(i)in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser
(ii)in reimbursement to either party of money spent by agreement between the parties for the purposes of the preparation of the property for sale
(iii)in discharge of the mortgages secured over the C property
(iv)the sum of $170,516.45 together within interest calculated pursuant to the Family Law Rules 2004 and
(v)in payment of the balance then remaining to the husband.
Forthwith upon the making of these orders the wife is to sign all documents and do all things necessary to transfer to the husband her interest in the funds held in the Commonwealth Bank Streamline account no. 1719, Commonwealth Bank account no. 6307, Commonwealth Bank account no. 1204 and Commonwealth Bank Equity account no. 0001 and the interest on the loan from the father’s parents.
The husband shall indemnify and keep indemnified the wife in respect of the debt to the husband’s parents, the equity account, the husband’s credit cards and any other debts or liabilities in the husband’s name, including all monies owing to the Australian Taxation Office.
The wife shall indemnify and keep indemnified the husband in respect of the wife’s credit cards and any other debts or liabilities in the wife’s name.
The husband be declared, to be as against the wife, the owner of the following property:
(a)       his bank accounts
(b)       the Toyota utility motor vehicle
(c)       the Volvo motor vehicle
(d)       his professional practice
(e)       his superannuation entitlements
(f)       the Equity account
(g)       his personal belongings and
(h)all other assets of whatsoever nature and kind in the name, possession or ownership of the husband as at the date of the making of this Order.
The wife be declared, to be as against the husband, the owner of the following property:
(a)       her motor vehicle
(b)       her bank accounts
(c)       her family trust
(d)       her jewellery
(e)       her superannuation entitlements
(f)       her personal belongings
(g)all other assets of whatsoever nature and kind in the name, possession or ownership of the wife as at the date of the making of this Order.
The parties will divide the contents of the C property equally as agreed between them in writing, and failing agreement within 14 days of the making of these Orders, the following shall apply:
(a)the husband shall retain all furniture he had at the date of the commencement of cohabitation that still exists or that were gifted to him by persons other than the wife
(b)the wife shall retain all furniture she had at the date of the commencement of cohabitation that still exists or that were gifted to her by persons other than the husband
(c)as to all remaining items, within fourteen (14) days of the making of these Orders the husband shall do all acts and things necessary to prepare two lists of the items, the items contained on each list shall be approximate in total value to that contained on the other list
(d)the wife shall select one of the lists within seven (7) days of receipt thereof, and in default, the husband shall select one of the lists for the wife, and thereafter the wife shall be solely entitled to the items contained in the list the wife has selected or been allocated, and the husband shall be solely entitled to the other items contained in the other list
(e)the husband shall make available for collection by the wife, or any persons nominated by her, all of those items contained in whichever of the two lists the wife has selected or been allocated pursuant to this Order, and in the reasonable time requested by the wife, and pending collection of the items by the wife, the husband shall properly maintain such items, and for the purposes of collecting these items the wife shall attend upon the C property in the company of a third party on one occasion only and within fourteen (14) days of the agreement reached between the parties as to the division of the contents or within 14 days of the wife choosing a list or being allocated a list.
The maintenance payable by the husband to the wife under Orders 2 and 3 of the orders made on 25 June 2008 be varied and that the husband pay to the wife the sum of $340 per week as and from 27 October 2010 and until compliance with Order 2 herein and that thereafter Orders 2 and 3 of the Orders made on 25 June 2008 be discharged.
If either party refuses or neglects to sign within fourteen (14) days of a written request to do so any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.

IT IS NOTED that publication of this judgment under the pseudonym Gapes and Gapes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1253 of 2008

MR GAPES

Applicant

And

MS GAPES

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court were parenting and property proceedings.
The issues in relation to parenting were resolved by the parties prior to the hearing and the resolution was the subject of consent orders made by the Court.
There are three children of the marriage: L born in December 1994 and currently aged 15 years; M born in July 1998 and currently 12 years of age; and T born in January 2001 and currently 9 years of age (“the children”). Pursuant to those orders the children currently live with the father and spend time with the mother on an increasing basis over time.
A sum of $5,000 in value for furniture and a question of whether paid costs should be added back were in issue on the balance sheet.
The issues which remained were, firstly, what relative weight the parties’ contributions should be given and, in particular, what weight should be given to the husband’s post separation contributions in difficult circumstances where he had assumed continuing care of the children since the wife’s illness of alcohol dependence and abuse had rendered her unable to fulfil that role.
In addition, there arose an issue in relation to how funds provided by the husband’s parents in 2000 should be taken into account as a contribution made on behalf of the husband and in determining the relative weight of contributions. In addition, there arose a question of what, if any, amount was owed to the husband’s parents for the balance of a loan which they had made. That latter matter resolved in the course of the hearing and in the final balance sheet no such balance was submitted as a liability. The repayment plan which I am informed was then permissible was by credit of the repayment in part to the husband’s parents’ self-managed superannuation fund. The law changed and that process became impermissible, however there was an amount for the repayment sitting in the husband’s superannuation account. In those circumstances it was agreed that the husband would take liability for the balance owed, the interest and the superannuation to that extent would be removed from the list of assets.
Secondly, the issue remained as to what weight should be given, if any, to the husband’s continuing role in predominantly caring for the children for at least the short term future and what weight should be given on behalf of the wife to the existing and continuing contribution made on her behalf by her parents in meeting the secondary private school fees of their grandchildren including, it seems, possibly boarding fees. Otherwise, the matters raised under section 75(2) of the Family Law Act1975 (Cth) (“the Act”) needed to be the subject of consideration and possible adjustment.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1963 the husband was born and is currently 47 years of age.
In 1967 the wife was born and is currently 43 years of age.
In 1981 the husband completed his Higher School Certificate in Sydney.
In 1987 the husband graduated from Sydney University with a professional degree and in that year commenced employment as a trainee in regional New South Wales, and continued to work at that location in 1988.
In 1989 the husband commenced employment in Sydney.
Between 1989 and 1990 the parties travelled in Europe for twelve months.
In 1991 the husband returned to employment in regional New South Wales, working in a general field.
In 1992 the husband trained in a specialised field within his profession and fulfilled requirements of the profession’s regulatory body.
In 1993 the husband undertook further training, culminating in a Certificate of Completion of Training.
The husband asserts that the parties commenced living together in or about July 1993, whilst the wife asserts the parties commenced living together when they married.
In December 1993 the husband and wife were married and living in rental accommodation at C.
On 29 December 1993 a vacant block of land at C was purchased for $109,000. The husband paid a deposit of $10,900 and the parties borrowed $170,000 from the Commonwealth Bank, for the package, including the building of the house.
On 17 January 1994 the parties paid $31,225.41 on settlement, of which $26,000 was withdrawn from the husband’s bank account.
In December 1994 the parties’ eldest child, L, was born and is currently 15 years of age.
On 15 January 1995 the husband commenced a solo Professional Practice at

K.
In 1997 the parties borrowed $60,000 from the Commonwealth Bank (capital equity account loan) to pay for business expenses.
In 1997 the parties borrowed $139,000 from the husband’s parents, to purchase the property at C2. The property was later subdivided and the top part of the subdivision was consolidated with the property at C (“the C property”).
In July 1998 the parties’ second child, M, was born and is currently 12 years of age.
On 25 October 1999 the husband joined E Practice as an associate.
In 2000 the husband purchased a partnership interest in the E Practice for $27,000.
On 9 May 2000, the capital equity account was extended to $160,000 and the funds were applied to purchase the partnership with the remainder applied towards the payment of business expenses.
In 2000 the husband’s parents gave a gift of $50,000 to the husband.
In January 2001 the parties’ youngest child, T, was born and is currently 9 years of age.
On 17 June 2002 the Title of the C property was transferred to the wife, as a “protective measure” against the husband being an unsuccessful defendant in litigation.
On 5 May 2003 the parties borrowed funds from the Commonwealth Bank to pay for extensions to the C property.
In 2003 the house at the C property was extended and a swimming pool was added.
In 2006 and continuing after the parties’ separation the wife had a problem in that she abused alcohol. Whether it was the cause or the symptom of the unhappiness which led to separation was in doubt with the wife expressing the view to the effect that it was difficult to determine which event was the catalyst of the other. Nevertheless, it seems clear that there was deterioration in her condition until well after separation. It is not necessary for me to detail the problems that her condition evoked but they were substantial and admitted to a large extent by the wife. They included occasions of abuse, drunkenness and violence and occasioned a number of Court proceedings.
By reason of that deterioration the husband had to assume the physical and financial support of the children. He employed nannies to assist him in that task and more recently his de facto spouse also assists in the care of the children. He says his ability to provide for the management of those tasks together with those that he had traditionally undertaken in a climate of continuing and distressing and even dangerous events makes the weight to be given to those contributions of a higher order than otherwise they might be.
It is pleasing to hear that the mother seems with help to have overcome her problems with alcohol and has abstained now from it for about twelve months. She is to be commended for her insight, discipline and determination.
In February 2007 the parties separated. After the wife left the matrimonial home some time later, the husband remained living in the home with the children.
On 22 May 2007 the husband attended a branch of the Commonwealth Bank to reduce the credit limit on linked credit cards and changed the home loan accounts to require dual signatures for any further transactions.
On 20 November 2007 the husband cancelled the wife’s credit card that was linked to his credit card and changed the joint account so that it required both signatures for a transaction.
On 1 December 2007 the wife listed the property at C for sale with a local agent without the husband’s consent.
On 14 December 2007 a section 601 Certificate was confirmed by a UNIFAM counsellor.
On 5 March 2008 the husband commenced proceedings in this Court.
On 26 March 2008 interim parenting orders were made in this Court, and provided, inter alia, that the children live with the husband and spend supervised time with the wife as agreed and failing agreement from the conclusion of school each Friday until 7.00 pm; each alternate Saturday from 9.00 am to 3.00 pm; each alternate Sunday from 9.00 am to 3.00 pm; and during school holidays for a maximum of one week during a particular school holiday period.
In June 2008 the wife commenced working in a position on the central coast, and which ceased in July of that year.
On 25 June 2008 interim financial orders were made in this Court.
In August 2008 the wife was admitted to the psychiatric unit at a regional New South Wales Hospital with depression, alcohol addiction and suicidal ideation.
On 5 August 2008 the husband attended the Child Responsive Program interview and on 12 August the children attended the interviews with the husband. The wife arrived unexpectedly and was interviewed.
On 7 August 2008 a divorce was granted.
In October 2008 the wife was admitted to Hospital with two prolonged seizures and multiple intracerebral bleeds.
In February 2009 the wife commenced employment as an agency nurse.
On 14 May 2009 the Australian Taxation Office (“ATO”) issued to the husband assessments for the financial years from 2004/2005 up to and including 2007/2008 for amounts which totalled $74,898.71 and with interest of $17,910.03. After negotiations with the ATO interest of $20,628.91 was remitted by the Commissioner on 20 July 2009. The wife disagrees.
On 29 July 2010 the parties entered into final parenting orders in relation to the three children of the marriage.
On 27 October 2010 the matter came before me for final hearing.

The application and response

The husband filed an Amended Initiating Application on 21 October 2010 seeking orders, which include, in summary, that the wife transfer her right, title and interest in the property at C (“the C property”) and that he simultaneously arrange for a discharge of the C property loans and refinance the debt secured by those mortgages into a mortgage granted to him solely and that he pay to the wife, or as she may direct, $50,000. The husband also seeks orders in relation to indemnification in respect of loans and other liabilities of each party, as specified, and that each party otherwise be entitled to other assets, as set out but seeks orders in relation to the division of the contents of the C property. It is further sought by the husband that Orders 2 and 3 of the Orders of 25 June 2008 be discharged and that the wife pay his costs of and incidental to his Application.

The wife filed an Amended Response to the Initiating Application on

20 October 2010 seeking orders, inter alia, that within six weeks the husband pay to the wife the sum of $340,000 and that simultaneously the husband discharge the mortgages secured against the C property and the wife transfer her interest in the property to the husband. In the event that the husband fails to make the payment to the wife, then the wife seeks that the C property be sold and that the wife receive $340,000 together with interest from the balance of the proceeds of sale.

Relevant Law

The first step I must undertake is to identify the property of the parties or either of them available for division between them.
The Court at the commencement of the hearing was provided with the balance sheet set out hereunder for its consideration.

The Balance Sheet

The husband has an interest in E Practice which was valued by a single expert at $19,000.
The parties compiled a joint balance sheet at the commencement of the proceedings which, as the hearing progressed, was finally replaced by the balance sheet set out below which balance sheet reflected agreements which had been reached in the proceedings, and the matters then in issue:

Assets	Wife’s Value ($)	Husband’s Value ($)
[C property] (w)	825,000	825,000
Commonwealth Bank Streamline account no. #1719 (joint)	0	0
Commonwealth Bank Cheque account no. #6823 (h)	8,795	8,795
Commonwealth Bank Streamline Unlimited account no. #6407 (h)	199	199
Commonwealth Bank account no. #6469 (w)	237	538
Commonwealth Bank account no. #1862 (w)	83	83
1994 Toyota Utility (h)	3,000	3,000
2005 Volvo XC90 (h)	25,000	25,000
2000 Peugeot 306 Cabriolet (w)	8,000	8,000
Personal property (h)	5,000	5,000
Personal property (w)	0	5,000
Furniture, furnishings & effects (h)	0	0
Furniture, furnishings & effects (w)	0	0
[E Practice] (h)	19,000	19,000
Commonwealth Bank Premium Account no. #1480 (50% share) (h)	6,484	6,484
Catamaran (50% share) (h)	900	900
Total	$901,698	$906,999
Add backs claimed
Partial property settlement (w)	4,814	4,814
Paid legal fees (w)	8,400	0
Paid legal fees (h)	63,369	0
Paid legal fees Criminal Proceedings AVO (w)	0	14,594
Waste alcohol (w)	0	15,000
Total	$76,583	$34,408
Liabilities
Commonwealth Bank account no. #6307 (joint)	180,518	180,518
Commonwealth Bank account no. #1204 (joint)	112,913	112,193
Commonwealth Bank Equity account no. #8221 (joint) [see Note 1]	0	159,999
Loan from [husband’s parents] (re: [C] property) (joint)	0	0
Interest on loan at item 25 [loan from husband’s parents] (joint)	0	0
ANZ Bank Visa (h)	0	0
50% of debts of [E Practice] – superannuation for last quarter to staff (h)	0	5,680
50% of debts of [E Practice] – holiday pay owed to staff (h)	0	12,047
50% of debts of [E Practice] – long service leave owed to staff (h)	0	15,983
Tax liabilities for 2005, 2006, 2007, 2008, 2009 and 2010 (h)	0	75,081
Total	$293,431	561,501

Superannuation
MLC MasterKey Personal Super (type of interest - accumulation) (h)	30,295	30,295
AUS Fund (type of interest - accumulation) (h)	1,220	1,220
[Gapes] Superannuation Fund (type of interest - self-managed) (h)	0	0
Wife’s superannuation (as at 30 June 2007) (type of interest – NK) (w)	58,685	58,685
Total	$90,200	$90,200
Financial Resources
Family trust (w)	0	0
Total	$0	$0
Notes:
Note 1 - Agreed to as to quantum but not as to inclusion in the pool.

In relation to the balance sheet the first issue was whether the sum of $5,000 was to be added into the balance sheet as the wife’s personal property. The wife maintained that she had no such assets and only possessed her clothing. The wife was, however, faced with the fact that she in her Financial Statement claimed ownership of personal property in the sum of $5,000. She made it clear that she did have a claim to the furniture in the home but that she had none in her possession. In the circumstances where there is no valuation of the personal property and the wife has clarified the inclusion of that amount in her Financial Statement, I am unable to find that there is an admission that she has property to that value in her possession or that there is an admission against her interest to the contrary effect. I accordingly will not include the sum.
In relation to “Commonwealth Bank account no #6469” on the balance sheet, that being the wife’s bank account, bank account statements were produced by the wife on the first day of the hearing, and which were Exhibit 14. The amount shown in that Exhibit was conceded by the wife to be the correct amount, which sum I adopt on the final balance sheet.
As to the add backs, I am asked by the husband to not add back the fees paid by him in extensive litigation in this Court which was undertaken in relation to the children’s proceedings. It is suggested that the expenditure of this money, having been spent on an application which was substantially finally agreed in terms that were more in accord with his proposals, should not be taken into account. He proposed that by the same token the amount spent by the wife would not be taken into account. Since I am informed the wife has unpaid legal fees, the difference is that the wife is to meet her costs from her proportion of the property pool and the husband seeks, by not including his legal fees as an add back, to provide in effect for part payment on account of his costs by the wife. I decline to accede to that request. I propose that the costs paid of these proceedings be added back as requested.
I am asked to add back an amount for the costs incurred by the wife in defending proceedings under the Crimes Act1900 (NSW) for criminal proceedings and relating to Apprehended Violence Orders. The costs of those proceedings are not costs of these proceedings. In any event, the evidence is that a significant proportion of those costs were met from the proceeds of an advance made to the wife by her parents. The conduct which gave rise to the litigation referred to was conduct it appears induced as a result of the wife’s illness in her addiction to and abuse of alcohol. An assessment is made of the alcohol consumed by the wife and its monetary value in her evidence. I do not, however, propose to add back either of these items. In the case of the alcohol expenditure it was as a result of an illness, affliction, disorder or addiction and in that regard does not bear that hallmark of wilfulness or negligence or even voluntary decision making which would render it subject to treatment as waste and the other proceedings were likewise a symptom of the same problem. The costs were substantially met by the wife’s parents.
The next item on which a decision is sought is the debts of E Practice. I accept the evidence of the husband that these are debts for which he is liable. It was sought to be asserted by the wife that they were business debts and that the husband would have the ongoing benefit in his business of those debts and that they should be excluded from the balance sheet. I decline to do so. The debts are real and the value of the Practice is included as an asset. The future value of the earning capacity to be derived from those investments in labour and human resources is something which I will take into account in determining matters under section 75(2) but the debt I find is properly included in the balance sheet.
The final item on which some ruling is required is the taxation liability of the husband. I find that the liabilities were created by an assessment for the claimed years raised in 2009. The taxation returns were not lodged on time since it appears that each of the husband and the wife formed the erroneous view that the taxation that they had already paid covered the liability and that no further sum was due.
The wife through her counsel argued however that it was the husband’s obligation to lodge his returns and that he failed to do so. Had he done so he would have avoided the imposition of interest and penalties. The husband has secured an agreement from the Australian Taxation Office for the remission of a significant part of those imposts. The husband asserts that coping with the conduct of the wife and the problems it created and the fact that the record keeping of the practice was in part a responsibility of the wife, mitigated against the records not being in appropriate order and the taxation returns not being lodged promptly. He was also mistaken as to the amount of taxation he was obliged to pay. He points out that the non-payment of the taxation has enabled him to utilise those funds to assist in the support of the children and the payment of the wife’s expenses in part from his available income. The husband further says that during the course of the marriage the ordinary practice was that he had access to a drawdown facility on the mortgage charged on the former matrimonial home, and of which property the wife was the registered proprietor. Contrary to that practice, the husband says that access to that facility for the purpose of meeting those taxation imposts was denied to him by the wife, where clearly they could have been met from that source.
I have considered the taxation assessments which have issued in the matter. I accept that the benefit of portion of the income which was created by the avoidance of paying tax passed to the wife and children. The liability should be included. The balance presently owed by the husband to the Australian Taxation Office after he has made reductions from post separation income, is $42,281 and it is my intention to include that figure in the liabilities. I will take into account the payments made by the husband in reduction of the taxation imposts for the years of cohabitation (some $80,000) as a contribution by him to the marriage in assessing those contributions by him.
I find the assets and liabilities of the parties to be considered directly in an alteration of property interests are as follows:

Assets	($)
C property (w)	825,000
Commonwealth Bank Streamline account no. #1719 (joint)	0
Commonwealth Bank Cheque account no. #6823 (h)	8,795
Commonwealth Bank Streamline Unlimited account no. #6407 (h)	199
Commonwealth Bank account no. #6469 (w)	538
Commonwealth Bank account no. #1862 (w)	83
1994 Toyota Utility (h)	3,000
2005 Volvo XC90 (h)	25,000
2000 Peugeot 306 Cabriolet (h)	8,000
Personal property (h)	5,000
Personal property (w)	0
Furniture, furnishings & effects (h)	0
Furniture, furnishings & effects (w)	0
E Practice (h)	19,000
Commonwealth Bank Premium account no. #1480 (50% share) (h)	6,484
Catamaran (50% share) (h)	900
Total	$901,999

Add backs
Partial property settlement (w)	4,814
Paid legal fees (w)	8,400
Paid legal fees (h)	63,369
Paid legal fees – criminal proceedings/AVO’s (w)	0
Waste – alcohol (w)	0
Total	$76,583
Liabilities
Commonwealth Bank account no. #6307 (joint)	180,518
Commonwealth Bank account no. #1204 (joint)	112,193
Commonwealth Bank Equity account no. #82200001 (joint)	159,999
Loan from husband’s parents (re. C property) (joint)	0
Interest on loan at item 25 [loan husband’s parents] (joint)	0
ANZ Bank Visa (h)	0
50% of debts of E Practice – superannuation for last quarter to staff (h)	5,680
50% of debts of E Practice – holiday pay owed to staff (h)	12,047
50% of debts of E Practice – long service leave owed to staff (h)	15,983
Balance of Taxation liability (h)	42,281
Total	$528,701
Superannuation
MLC MasterKey Personal Super (Accumulation) (h)	30,295
AUS Fund (Accumulation) (h)	1,220
Groves Superannuation Fund (Self-managed) (h)	0
Wife’s superannuation (as at 30 June 2007) (w)	58,685
Total	$90,200
Financial Resources
Family Trust (w)	0
Total	$0
Net Assets (including superannuation)	$540,081

Section 79(4)

Contributions to date of separation

There was a measure of discussion as to the appropriate assessment of the contributions made by the parties to the date of separation. The wife said that such contributions should be assessed as equal. However, the husband contends that by reason of the contribution of his parents in 2000, the contributions should be assessed unequally. The contribution made by the husband’s parents at that time was some six years prior to the parties’ separation and no doubt could and should be regarded as a contribution made on behalf of the husband. However, as against that is the effluxion of time since then which will diminish the weight which might be given to it. There is further the need to balance the contributions which have been made by the wife aliunde in the role of homemaker and parent as well as her role in assisting the husband in the development of his earning capacity in the various roles she adopted.
I think that an appropriate assessment of the contributions is 55% to the husband and 45% to the wife.

Contributions post separation

Post separation the husband claimed that a significant change took place in the respective contributions of the husband and the wife. As the wife was unable to care for the children that responsibility was cast upon the husband and which he had to fulfil in addition to his usual role of being the primary income earner in the household. He employed and paid nannies to assist him.
The wife herself did not make financial contributions of great significance towards the financial support of the children. However, that is not to say that she did not make any contributions. She has met some costs of the children since separation and her parents have made a commitment to pay the costs of the secondary education at private schools of the children of the marriage and are currently meeting those costs in relation to L. They have, it appears, indicated that their support will extend to T attending private school as a boarder.
In addition, since the date of separation the wife has permitted the husband to continue to occupy the former matrimonial home with the children. The loans charged against that property have increased on one account by about $40,000 and reduced in another case by $6,000. The husband asserts that the wife gained some benefit from the withdrawals he made from that fund but it is noted by comparison the children and the husband were the primary beneficiaries of those withdrawals. That has constituted a contribution to the children and to the husband by the wife.
The husband argues that the greater contribution largely depends on his new role as the primary homemaker. It is suggested that this is a contribution which deserves recognition of another 10%. It is noted that the husband’s earning capacity derived from his professional practice developed during the course of the marriage. The wife assisted him develop that earning capacity as an employee of the practice and as a homemaker and carer for the children, whose private school fees are paid by her parents. The husband has paid maintenance for the wife and I take that into account. I do not accept that all things considered that the husband’s contribution post separation deserves that recognition sought. I do, however, consider that a sum of 5% of the pool should be added in the husband’s favour to allow for it.

Conclusion based on contribution

All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them, including such property which is no longer the property of the parties to the marriage or either of them, to be 60% to the husband and 40% to the wife to the date of hearing.

Section 75(2) considerations

The husband has a greater earning capacity than the wife. That earning capacity was developed during the course of the relationship and had the wife not fulfilled the role as a homemaker and primary carer for the children for most of the marriage in the way that she did, it would have been inhibited in its development.
The wife’s earning capacity is improving but it is unlikely that she as a Registered Nurse will ever be able to earn as much from her profession as the husband in his employment. The husband points to his expected contributions in relation to the children. The wife having rehabilitated herself seems likely to play an ever-increasing role in the care of the children and of course the payment of private school fees (a contribution made on the wife’s behalf) will be a major contribution to their costs. The husband has re-partnered and his partner is not without means and an earning capacity although she has recently terminated her employment to undergo further education. She makes a contribution, albeit modest, to the outgoings of the husband’s household.
The wife has had indifferent health in the past, suffering from Crohn’s Disease from which she is presently in remission.

Conclusion on section 75(2)

For all the reasons referred to above and in the circumstances and taking those considerations into account, I believe that it is appropriate to make an allowance in favour of the wife of 5%.

Overall division of assets

The above determination will see the wife receive 45% of the parties’ assets and the husband receive 55%.

Just and equitable

The division of assets would see the wife receive $243,036.45 in value of the nett assets and the husband receive $297,044.55 in value of the nett assets.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division.
The wife will receive:

Assets	($)	($)
Commonwealth Bank account no. #6469	538
Commonwealth Bank account no. #1862	83
Personal property	0
Furniture, furnishings & effects	0
Payment from husband to the wife	170,516.45	171,137.45
Add backs
Partial property settlement	4,814
Paid legal fees	8,400
Paid legal fees – criminal proceedings / AVO’s	0
Waste – alcohol (w)	0	13,214
Superannuation
Wife’s superannuation (as at 30 June 2007)	58,685
Financial Resources
Family Trust	0
Total Assets	$243,036.45
Liabilities
Nil	0
Total Liabilities	$0
Net Assets (including superannuation)	$243,036.56

The husband will receive:

Assets	($)	($)
C property	825,000
Commonwealth Bank Streamline account no. #1719	0
Commonwealth Bank Cheque account no. #6823	8,795
Commonwealth Bank Streamline Unlimited account no. #6407	199
1994 Toyota Utility	3,000
2005 Volvo XC90	25,000
2000 Peugeot 306 Cabriolet	8,000
Personal property	5,000
Furniture, furnishings & effects	0
E Practice	19,000
Commonwealth Bank Premium account no. #1480 (50% share)	6,484
Catamaran (50% share)	900	901,378
Add backs
Paid legal fees	63,369

Superannuation
MLC MasterKey Personal Super (Accumulation)	30,295
AUS Fund (Accumulation)	1,220
Gapes Superannuation Fund (self-managed)	0	31,515
Total Assets (including superannuation)	$996,262
Liabilities
Commonwealth Bank account no. #6307	180,518
Commonwealth Bank account no. #1204	112,193
Commonwealth Bank Equity account no. #82200001	159,999
Loan from husband’s parents (re. C property)	0
Interest on loan at item 25 [loan from husband’s parents]	0
ANZ Bank Visa	0
50% of debts of E Practice – superannuation for last quarter to staff	5,680
50% of debts of E Practice – holiday pay owed to staff	12,047
50% of debts of E Practice – long service leave owed to staff	15,983
Balance of Taxation liability	42,281
Payment from husband to the wife	170,516.45	699,217.45
Total Liabilities	$699,217.45
Net Assets (including superannuation)	$297,044.55

Spouse maintenance

The wife has made a claim for spouse maintenance. An order for her maintenance was made by consent on 25 June 2008, and which provided for the husband to pay financial support for the wife of $490 per week.
The husband seeks an order that the maintenance order be discharged from the date to which it stands paid.
The wife opposes the order but does not oppose the order being discharged upon receipt by her of the property settlement amount sought in the proceedings.
I have considered the fact that the wife has been in employment and has clearly failed to provide the husband with information relevant to her gaining that employment. It is true that the wife ultimately did disclose her income but it is equally true that had she disclosed it earlier she would have likely been faced with some prospect of success of an application for an order that it be reduced at least.
I am informed that the payment of the maintenance is two weeks in arrears. I have considered the form of the present order and the wife’s income and stated expenditure and the husband’s capacity to pay such maintenance. The husband has had drains upon his resources but the maintenance has been met and he clearly has a capacity to pay the sum until the wife receives her share of the property settlement.
On the other hand, the wife having regard to her present average income is not, in my view, in need of at least $150 of the sum paid. I find that the balance of $340 per week which relates to her rent is justified by a present need for the wife to live at a standard of living that is in all the circumstances reasonable. I also find that on receipt of the sum herein ordered to be paid to the wife, and given her present level of income, that she will be able to meet her reasonable needs without recourse to the husband’s resources.
Accordingly, I propose that the maintenance payable by the husband to the wife be varied and that it be reduced by the sum of $150 per week as and from the commencement of the hearing on 27 October 2010. As to the balance of the order for maintenance I intend to discharge that order upon payment by the husband to the wife of the sum herein ordered to be paid by him.

I certify that the preceding ninety-three paragraphs (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 24 November 2010.

Associate:

Date: 24 November 2010

[2010] FamCA 1050

24 November 2010

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Costs

Injunction

Procedural Fairness