GEORGE & GEORGE

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE

[2015] FamCA 29

FAMILY LAW – PROPERTY – Where it is agreed between the parties that the contributions made during the marriage were equal –– Where the husband made considerable initial contributions – Where the wife was the primary homemaker and parent during the marriage – Where the wife submits a disparity in post separation contributions in her favour – Where the wife asserts the husband’s initial contributions are eroded by other contributions during the marriage – Where both parties have had significant use of capital post separation – Where there is a disparity of income earning capacity between the parties – Just and equitable adjustment of assets.

FAMILY LAW – CHILD SUPPORT – Where the wife seeks a child support departure order for non-periodic payments – Consideration of s124 of the Child Support (Assessment) Act 1989 (Cth) – Where the husband submits he does not have sufficient surplus income to make payments – Just and equitable and otherwise proper that the husband pay 75 per cent and the wife pay 25 per cent of non-periodic payments sought by the wife.

FAMILY LAW – SPOUSE MAINTENANCE – Where the wife seeks the husband pay her spouse maintenance for five years from the date of the orders – Where the wife has not established that after she receives a property settlement she will be unable to adequately support herself – Where that need can be satisfied from the wife’s asset base – Where it is not proper to make a periodic spousal maintenance order – Application dismissed.

LEGISLATION
Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth)

CASES
Bevan and Bevan (2013) FLC 93-545
Bremner and Bremner (1995) FLC 92-560
Froth and Froth (2007) FamCA 1608
Kardos v Sarbutt (2006) 34 Fam LR 550
Pierce and Pierce (1999) FLC 92-844
Williams and Williams [2007] FamCA 313

APPLICANT:

Ms George

RESPONDENT:

Mr George

FILE NUMBER:

SYC

7612

2011

DATE DELIVERED:

27 January 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

26-27 November 2013; 29 November 2013; 2 December 2013;
14 - 15 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

York Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Clinch Long Leathbarrow

Orders

Pursuant to s 79 Family Law Act 1975 (Cth) (“the Act”) an order be made in accordance with paragraphs 2 to 15.
Within three (3) months from that date of these orders:
2.1.the husband do all acts on things and sign all documents necessary to:
2.1.1.transfer to the wife all of his right, title and interest in the parties former matrimonial home situated at and known as T Street, Suburb F in the State of New South Wales being the whole of the land in folio identifier … ("the Suburb F property");
2.1.2.discharge the mortgage to the CBA in relation to the property situated at and known as C Street, Town S in the State of New South Wales being the whole of the land in folio identifier … ("the Town S property");
2.1.3.pay to the wife the sum of $115,455;
2.1.4.in the event the mortgage on the Suburb F property in favour of the Commonwealth Bank (“the Suburb F mortgage”) exceeds the sum of $416,363, pay to the Commonwealth Bank the amount of that excess.
2.2.Contemporaneously with the husband’s compliance with paragraph 2.1, the wife do all acts and things and sign all documents to:
2.2.1.discharge the Suburb F mortgage up to a balance of $416,363;
2.2.2.transfer to the husband all of her right, title and interest in:
2.2.2.1.The Town S property;
2.2.2.2.Citibank investment account …275;
2.2.2.3.Citibank investment account …090;
2.2.2.4.(Co) HSBC accounts …161 and …236;
2.2.2.5.CBA account …931;
2.2.2.6.Hong Kong accounts;
2.2.2.7.Artworks;
2.2.2.8.Farm machinery at the Town S property.
2.3.Contemporaneously with the husband's compliance with paragraph 2.1, the wife do all acts and things and transfer to the husband all her right, title and interest in:
2.3.1.V1 Pty Limited (ABN …);
2.3.2.V2 Pty Limited (ABN …);
2.3.3.V3 Pty Limited (ABN …);
2.3.4.W Pty Limited (ABN …);
2.3.5.N Pty Limited (ABN …); and
2.3.6.N Pty Limited as trustee for N Trust (ABN …),
(collectively “W Companies”).
2.4.Contemporaneously with the wife’s compliance with paragraph 2.3, the husband indemnify the wife in relation to any debt of either or both the parties connected to the W Companies.
Within three (3) months from the date of these orders (and subject to the wife’s compliance with paragraph 2.2 and 2.3 but only if the husband has complied with paragraph 2.1):
3.1.the husband is to vacate the Suburb F property and leave the same in good order and condition including ensuring that all taps, cisterns, ovens, stoves, lights, dishwasher, curtains, blinds, fixtures and fittings are in good order and condition;
3.2.the husband must deliver to the wife's solicitors the keys, remote controls, and all spare keys for the Suburb F property (in relation to all doors, gates and letter box) as well as the alarm code for the said home (if an alarm is connected);
3.3.after 1:00pm on the day that the husband had complied with paragraph 3.1, the wife shall be at liberty to collect the keys and remote controls and the alarm code for the Suburb F property for the purposes of inspecting the home to ensure that it is in good order and condition.
Forthwith the wife be entitled to the monies in the controlled monies account with the Commonwealth Bank of Australia (CBA) being account number …546, being an account held in the name of Ms George, and to this end it is requested that the CBA give effect to this order with the wife to be the sole signatory on the account for this purpose.
In the event that the husband fails, omits or neglects to comply with any of his obligations in paragraphs 2.1.2, 2.1.3 and 2.1.4 hereof then forthwith from the date of the husband’s non-compliance, the husband is to do all acts and things and sign all documents necessary to list for sale the property situated at and known as B Street, Suburb M in the State of New South Wales being the whole of the land in folio identifier … (“the Suburb M property”) for the best price reasonable obtainable in the following manner:
5.1.list the Suburb M property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days with such agent as the President of the Real Estate Institute of New South Wales for the time being shall appoint ("the Agent"), the costs of and incidental to such appointment to be borne by the husband as and when same fall due.
5.2.the sale price, at which the Suburb M property shall be listed, shall be mutually agreed upon by the parties or in the absence of agreement reached within fourteen (14) days shall be the price nominated as the fair market value thereof by Mr A or his nominee (Mr A’s fees to be paid by the husband).
5.3.the husband co-operate in every way including without limiting the generality of the forgoing:
5.3.1.making the key available to the agent;
5.3.2.allowing the inspection of the Suburb M property at all reasonable times requested by the agent;
5.3.3.doing or saying nothing to hinder or prevent a sale being effected;
5.3.4.ensuring the Suburb M property is in neat and clean condition at the time of the inspection by the agent and prospective purchases;
5.3.5.signing all documents requested by the agent in relation to the listing for sale of the Suburb M property except a contract or agreement for sale which has not been authorised by the parties’ solicitors;
5.3.6.execute a contract for sale in the form prepared by the solicitors having the contract of the sale at a price agreed upon by the parties or in the absence of any agreement at or above the price nominated by the agent;
5.4.the husband shall instruct such solicitor as agreed upon by the parties to have the conduct of sale on behalf of the husband or in the absence of agreement reached within fourteen (14) days shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales ("the solicitor"), the costs of and incidental to such appointment to be borne by the husband as and when the same fall due.
5.5.neither party may confer with the agent without consent of the other party;
5.6.the wife shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the Suburb M property.
5.7.in the event that paragraph 5 comes into effect, then on settlement of the sale of the Suburb M property the proceeds of sale are to be disbursed in the following manner and priority:
5.7.1.all costs and expenses of sale including legal costs and disbursements, agents' commissions, value of fees and auction expenses (including payment of any such expenses as has been paid by either or both of the parties);
5.7.2.the amounts required to pay all Municipal and water rates adjustments with respect to the Suburb M property;
5.7.3.the amounts required to fulfil the husband’s obligations under paragraphs 2.1.2, 2.1.3 and 2.1.4 and paragraph 20;
5.7.4.the balance (if any) then remaining to the husband.
In the event that the husband is ready, willing and able to comply with his obligations under paragraph 2.1 but the wife fails to comply with paragraphs 2.2 and 2.3 in the period of three (3) months from the date of these orders, then within a further period of three (3) months:
6.1.the husband is to pay the wife the sum of $999,092;
6.2.discharge any liability the wife has in respect of the Suburb F mortgage;
6.3.discharge any liability the wife has in respect of the Town S property.
Contemporaneously with the husband complying with his obligations under paragraph 6, the wife is to do all acts and things and sign all documents to:
7.1.transfer all of her right, title and interest in the Suburb F property to the husband;
7.2.comply with paragraphs 2.2.2 and 2.3
and the husband is to indemnify the wife in relation to any debt of either or both the parties connected with the W Companies.
In the event that the wife fails to comply with paragraph 2.2 within the time provided and the husband fails to comply with paragraph 6 in the time provided, then both parties will do all things and sign all necessary documents to list the Suburb F property for sale by private treaty for the best price reasonably obtainable upon the following conditions:
8.1.with such agent as the parties may agree to appoint and in default of agreement as to agent, within fourteen (14) days such agent as the President of the Real Estate Institute of New South Wales for the time being shall appoint (“the agent”), the costs of and incidental to such appointment to be borne by the parties equally;
8.2.in the event that there is a disagreement in relation to sale price the parties will do all things necessary and pay all fees required to instruct Mr A or his nominee to nominate the price at which the property shall be offered for sale from time to time;
8.3.the parties co-operate in every way including without limiting the generality of the forgoing:
8.3.1.making the key available to the agent;
8.3.2.allowing the inspection of the Suburb F property at all reasonable times requested by the agent;
8.3.3.doing or saying nothing to hinder or prevent a sale being effected;
8.3.4.ensuring the Suburb F property is in neat and clean condition at the time of the inspection by the agent and prospective purchases;
8.3.5.signing all documents requested by the agent in relation to the listing for sale of the Suburb F property except a contract or agreement for sale which has not been authorised by the parties’ solicitors;
8.3.6.execute a contract for sale in the form prepared by the solicitors having the contract of the sale at a price agreed upon by the parties or in the absence of any agreement at or above the price nominated by the agent.
8.4.The parties shall instruct such solicitor as agreed upon by the parties to have the conduct of sale on behalf of the husband or in the absence of agreement reached within fourteen (14) days shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales ("the solicitor"), the costs of and incidental to such appointment to be borne by the husband as and when the same fall due;
8.5.Neither party may confer with the agent without consent of the other party;
8.6.The wife shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the Suburb F property.
8.7.In the event that paragraph 8 comes into effect, then on settlement of the sale of the Suburb F property the proceeds of sale are to be divided in the following manner and priority:
8.7.1.all costs and expenses of sale including legal costs and disbursements, agents' commissions, value of fees and auction expenses (including payment of any such expenses as has been paid by either or both of the parties);
8.7.2.the amounts required to pay all Municipal and water rates adjustments with respect to the Suburb F property;
8.7.3.the amounts required to pay the Suburb F mortgage up to a balance of $416,363;
8.7.4.the balance then remaining to the wife.
8.8.On or before the settlement of the sale of the Suburb F property the husband shall:
8.8.1.pay any amount in addition to the sum of $416,363 required to discharge the Suburb F mortgage;
8.8.2.discharge the mortgage to the CBA in relation to the Town S property;
8.8.3.pay to the wife the sum of $115,455.
8.9.In the event that the husband fails to comply with paragraph 8.8, the provisions of paragraph 5 shall apply.
8.10.Contemporaneously with the husband’s obligations under paragraph 8.8 being satisfied, the wife will do all acts and things and sign all documents as required of her by paragraphs 2.2.2 and 2.3 (and the husband will indemnify the wife in relation to any debt of either or both the parties connected to the W Companies).
Within three (3) months the husband give to the wife the following items which were shipped from the wife's parents in the UK to the wife:
9.1.12 soup bowls and saucers;
9.2.2 dinner plates;
9.3.2 jugs, half pint size;
9.4.salt and pepper;
9.5.6 dessert bowls;
9.6.gravy boat and saucer;
9.7.Waterford crystal 7½" vase;
9.8.canteen of cutlery set which includes 6 knives, 6 forks, 6 dessert spoons, 6 soup spoons, 6 fish knives, fish forks, dessert spoons, soup spoons, fish forks, bone handled knives, EPNS spoons and forks, carving knife;
9.9.box of files and papers on education, sensory geometry, box of 6 photo albums and 2 boxes of photos and box containing folder on music education, 10 books on education, Syrian inlaid jewellery box, radio alarms and 2 band tax papers.
The husband give to the wife the following items situated in the Suburb F property:
10.1.one half children's books purchased by the wife;
10.2.lawnmower, whipper snipper, hedge cutter;
10.3.music books;
10.4.kids farm sets and animal sets;
10.5.pewter water jug;
10.6.books on Hong Kong by friend in O Group, Ms P;
10.7.CD cabinet.
The husband give to the wife the following items from the Town S property which items the husband must make available for collection by the wife or her agents within three (3) months from the date of these orders:
11.1.the wife's clothing;
11.2.family tent;
11.3.one half of the Christmas Decorations.
Within fourteen (14) days of the date of these orders the husband deliver to the wife any photograph that is of the wife, the wife’s family or the wife’s friends.
Within fourteen (14) days the husband deliver to the wife all family photo albums and negatives and all photos that he has of the children and the wife return all of those photo albums, negatives and photographs to the husband after a further period of fourteen (14) days. During the period of time the wife is in possession of the photo albums, negatives and photographs, the wife is at liberty to reproduce them as she so desires.
The wife shall be responsible to pay any tax arising from interest earned upon the controlled monies account.
Other than as is specifically provided for in these orders the parties are solely entitled to the exclusion of the other to all other asset, superannuation interests, property and chattels of whatsoever nature and kind in the name or possession of each of the parties respectively as at the date of the making of these orders and each party indemnify the other in respect of any liability associated with any such asset or any other liability in the name of that party.
In default of either of the parties from doing all acts and things and executing all such documents as are necessary to give effect to these orders within fourteen (14) days of an obligation to do so as is set under these orders, and on the Registrar being satisfied of such failure or neglect or default by way of an affidavit evidence only, then a Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to s 106A of the Act to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders and the party in default shall pay to the other party to this Application that party’s costs and disbursements on an indemnity basis.
Liberty otherwise granted to the parties to seek implementation of the order for property settlement upon twenty one (21) days notice.
Pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) there be a departure from the current child support assessment so that in addition to the current assessment (or any future child support assessments issued in respect of the children), the husband pay by way of non-periodic child support, 75 per cent the following until each of the children complete their Higher School Certificate:
18.1.the children’s school fees and all incidental expenses that can be placed on the school’s account in relation to the children’s, L and D’s attendance at School Q (and E's school fees and all incidentals once he commences at School Q from Year 5) and the child, H, attendance at School I or such other school the children may attend from time to time as agreed between the parties of similar standing as the schools referred to herein;
18.2.the children’s text books, uniforms (including winter uniforms, summer uniforms and sport uniforms) in relation to each of the children’s attendance at their respective schools;
18.3.all extracurriculum activities costs in relation to the children;
18.4.the children’s mobile telephone accounts;
18.5.all orthodontic expenses in relation to the orthodontic treatment that the children undertake;
18.6.all medical, dental, optical gap payments in relation to each of the children;
18.7.maintain the children in the Family Medibank Private Health cover with top extra cover.
The wife’s application for spouse maintenance is dismissed.
As between the husband and wife, the husband pay 75 per cent and the wife pay 25 per cent of costs payable to the W Companies pursuant to order 3 made 2 August 2013 and the costs order made this day against the wife in favour of the W Companies.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 7612 of 2011

Ms George

Applicant

And

Mr George

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties were married for 16 years. There are four children of the marriage. This case mainly involved whether any, and if so what, orders should be made to divide the parties’ property. The wife also sought a child support departure order for non-periodic payments and a five year spousal maintenance order.
In relation to the alteration of property, it was an agreed fact in this case that from the date of cohabitation to the date of separation, the contributions made by both parties, including those made on behalf of either party by relatives and others, were equal. Thus, the main consideration in this case concerns the treatment of initial contributions by the husband, post separation contributions made by each party, and any adjustment to be made as a result of considerations under s 79(4)(d) – (g) of the Family Law Act 1975 (Cth) (“the Act”).
The proceedings initially also included disputes relating to parenting matters. Those issues were resolved when consent orders were made on 27 November 2013. Those orders were in similar terms to interim orders that had been in place since 6 August 2012 in which D, who at the date of the hearing was aged 13 and E, who at the date of the hearing was aged 9, live with their father from Wednesday afternoon to Monday morning each second week during school term and half of the school holidays. They are with their mother the rest of the time. There was a notation included in the orders that the two elder children who ordinarily live with their mother, L, who at the date of the hearing was aged 17 and H who at the date of the hearing was aged 15, would both be encouraged by their parents to spend time with the other parent subject to their commitments.

APPLICATIONS

The formal orders sought by the wife are set out in her case outline document dated 26 November 2013 which is replicated in Schedule 1.
The orders sought by the husband are set out in Schedule 2.
Both parties seek to retain the property at T Street, Suburb F (“the Suburb F property”).
The wife wishes the husband to take her shares in W Pty Ltd. The husband seeks an order that the shares be sold and that he receive 60 per cent of the net proceeds of that sale, or in the alternative, the shares be divided evenly between the parties.
Although the wife’s formal application was that she receive the property at C Street, Town S (“the Town S property”), the final hearing proceeded on the basis that the Town S property would remain an asset of the husband (see the distribution proposed by the wife in Exhibit 41).
Both parties propose that the property at B Street, Suburb M (“the Suburb M property”) remain an asset of the husband.

DOCUMENTS RELIED UPON

The documents relied upon by each of the parties are set out in Schedule 3.

CHRONOLOGY

I note that any contention about events which occurred during the years of the parties’ cohabitation are of limited significance in light of the parties’ concession that contributions made during this time were equal.
The husband was born in 1961 and is currently aged 53 years old.
The wife was born on 22 November 1968 and is currently aged 46 years old.
In August 1994 (according to the wife)/December 1994 (according to the husband), the parties commenced to cohabit in China. In December 1994 the parties moved to Indonesia. At this time the husband was employed by Company U in a sales role and the wife was employed in the education field.
At the time of cohabitation the husband owned two properties: the Suburb M property, which was purchased in 1984 for $52,000, and X Street, Suburb Y (“the Suburb Y property”), which was purchased in 1988 for $141,000 with the assistance of borrowing from a financial institution.
In December 1994, the husband’s employment led the parties to relocate to Indonesia. The wife was unable to work in Indonesia as she did not have a visa to do so.
In July 1995 the parties were married in the United Kingdom.
In March 1996 the parties again relocated to Hong Kong where the husband obtained employment as a consultant with Company AA.
In July 1996 the parties’ first child L was born and is currently aged 18 years old.
In July 1997 the parties purchased the Suburb F property. The property was purchased in the husband’s sole name. The purchase price was funded by way of $50,000 from savings and $420,000 by mortgage.
In April 1998 the parties’ second child H was born and is currently aged 16 years old.
In about 1999 – 2000, the parties were involved in the launch of W Pty Ltd, a company specialising in communication systems. The parties were allocated 50,000 shares each. The husband is a director. The husband does not earn a wage from the company but does advise occasionally on market developments for about 2-3 hours each quarter. The value of these shares has been provided by a single expert, whose valuation has not been challenged.
In March 2000 the parties’ third child D was born and is currently aged 14 years old.
In July 2000, the parties purchased the property at BB Street, Hong Kong (“the Hong Kong property”) for HK$6.14 million, funded as HK$2,000,000 from savings, HK$600,000 from a loan and HK$4,000,000 from their mortgage.
In January 2001, the husband commenced employment with Company CC working as an analyst while the wife commenced part time employment at School DD.
In October 2001 the husband’s employment with Company CC was terminated.
In January 2002, the wife commenced full time employment at School DD.
In 2002 the husband set up his own company, Company EE, in which the wife and the wife’s father were appointed directors. In that period of time the husband consulted mainly to “Company AA” in the United States and “Company FF” in Hong Kong.
In 2003 the wife ceased her employment at the school.
In August 2004 the parties’ fourth child E was born and is currently aged 10 years old.
In December 2004 the family decided to relocate to Sydney and they moved into the Suburb F property which they always intended would become the matrimonial home.
In October 2005, the husband sold the Suburb Y property for approximately $495,000.
Around September/October 2005, the parties purchased the Town S property for $900,000. This property has an agreed current value of $750,000. Funding for the purchase comprised of $495,000 from the sale proceeds of the Suburb Y property and $410,000 from a Commonwealth Bank mortgage.
In March 2006 the husband commenced employment with G Company as a senior executive.
In February 2010 the wife commenced a bachelor’s degree at the university.
The parties separated under the one roof in January 2011.
In April 2011 the parties sold the Hong Kong apartment for HK$14.7 million. A 10 per cent deposit was paid by the purchasers into the parties’ joint bank account in Hong Kong with HSBC.
On the 24 June 2011 the wife and children moved out of the former matrimonial home in Suburb F and moved two streets away into rental accommodation in the same suburb. The husband remained residing at the matrimonial home.
Shortly after the wife left the matrimonial property, a number of events occurred that led to the husband being charged on 1 July 2011 with assault occasioning actual bodily harm to the wife. In mid-July 2011 an interim Apprehended Violence Order (“AVO”) was made in the Local Court against the husband for the protection of the wife. The matter proceeded to the Suburb M Local Court where in August 2012 the Magistrate found the husband not guilty of assault. The wife relies upon the circumstances of her leaving the Suburb F property in relation to the issue as to who would have the first option to retain that property. Those circumstances were not however the subject of any testing nor referred to in any detail during submissions by the wife.
On 29 June 2011 the husband placed into his own name and control the 10 per cent deposit from the sale of the Hong Kong apartment by way of two withdrawals: HK$524,800 and HK$945,200. The husband indicated through his solicitor that he does not intend to use that money.
In July 2011 the husband cancelled the wife’s credit cards. The wife was unable to pay for items and expenses for herself and the children as she had ordinarily been able to do by the use of those cards.
On 15 December 2012, the wife filed an urgent application and an application for final orders in the Family Court.
On 17 January 2012, interim consent orders were made that provided for the net proceeds of the sale of the Hong Kong apartment to be deposited into a controlled monies account. The wife received $125,000 with the categorisation of such sum to be determined by the trial judge. The amount of $50,000 was also provided to the wife’s solicitors to be used for the wife’s legal costs and disbursements. By later orders made on 1 June 2012 the wife received $90,000 to cover her future legal costs and the husband received $100,000, the characterisation of which was to be determined by the trial judge. It was also determined that the wife was to receive the interest accruing on the controlled monies account as interim spousal maintenance and that the children’s school fees were to come from that account. The orders of 1 July 2012 also provided that the husband was to meet the mortgage repayments and other expenses such as outgoings and Council rates associated with Town S).
In 2012 and 2013, the wife claims that she had problems receiving money from the controlled monies account. It is understood that this is partly because the signatories on the account included the parties’ lawyers. The husband’s lawyer, Mr Long, ceased acting for the husband in September 2013. The wife consequently filed an Application in a Case on 15 November 2013, returnable on the trial date, seeking that Mr Long be removed from being a signatory on the account and that she be appointed as the sole signatory. By the time of trial the husband was again represented by Mr Long. During discussion in court it was agreed to leave the current signatories to the account on the basis that the wife was to receive the interest accruing on the account and that both parties could withdraw $20,000 from the account to assist with legal fees.
On 21 May 2012, the child H, then aged 14, left the wife’s care and went to live with the husband.
In July 2012 the husband, without consulting the wife, sold his Company PP shares for approximately $250,000.
On 5 October 2012, H returned to live with her mother.
In November 2012, directions were made for single expert valuers to be appointed to value real property at Town S, Suburb F and Suburb M.

THE HUSBAND’S APPLICATION TO ASK THE SINGLE EXPERT QUESTIONS OUT OF TIME

Throughout 2012 and 2013 the parties had issues with agreeing to a single expert to value the parties’ interest in W Pty Ltd and with that expert receiving the documents which were necessary to complete a valuation. HH Accountants were appointed to carry out a valuation, originally by Mr JJ. On 27 February 2013, orders were made that Ms KK from HH Accountants was to attend the offices of W Pty Ltd to view and obtain documents required in order for her to complete her single expert report.
In May 2013 the parties were advised that documents remained outstanding for Ms KK to complete her valuation report of W Pty Ltd.
On 13 November 2013, Ms KK filed her completed single expert report. The valuation was prepared at the date of the latest financial statements, being 30 June 2012. The report notes that certain information was not received and that such information may have provided a different outcome to the report. The wife sought to rely on the report. The husband initially indicated he wished to dispute the opinions expressed in the report.
The balance sheet indicated that the husband asserts that the shares in W Pty Ltd were worth $300,000 whereas the single expert had valued those shares at $491,336 (the husband’s shares being worth $273,842 and the wife’s shares being worth $217,494).
An oral application was made by the husband for an extension of time pursuant to rule 15.65(1)(b) Family Law Rules 2004 (Cth) by a period of 14 days to ask Ms KK questions in relation to her expert report in relation to the valuation of W Pty Ltd dated 9 August 2013. That application was refused and I now provide the reasons for doing so.
This application was made very late on the penultimate day of the hearing and the following matters are of relevance to the application.
The order for the preparation of this report was originally made by a Deputy Registrar on 9 February 2012.
The wife’s case outline document records that an expert (Mr JJ) provided a preliminary view on 22 November 2012 and requested further documents.
The chronology also records that there appeared to be an argument over instructions in January and February 2013.
When the matter came before me on 27 February 2013, I noted that I had been told that the single expert valuation would be completed in approximately eight weeks. An order was made that the husband do all acts and things to instruct his solicitors to sign the joint letter of instruction to the single expert, instructing the single expert to continue the valuation of W Pty Ltd and its subsidiaries. I made a notation that the single expert be at liberty to attend at a time and date appointed the office of W Pty Ltd at Suburb LL to inspect and receive documents the subject of a subpoena that had been issued as agreed between W Pty Ltd and the single expert. Further directions were made about what would happen if there was a dispute in respect of documents. Relevantly order 2.5(d) allowed for any shadow expert retained by either party to attend such meetings. Any shadow expert was to sign a confidentiality agreement which had been drafted.
The wife’s case outline document records that the single expert asked for further documents on 3 May.
More generally, other directions had been made requiring the parties to prepare the matter for trial. The matter had originally come before Justice Johnston for the first day of a hearing on 26 November 2012. The matter was allocated final hearing dates of five days commencing 24 June 2013 and directions were made on that day for the obtaining of expert evidence other than the forensic accounting evidence which is the subject of this application.
When the matter came before me on 27 February 2013, because of the lack of preparation, I vacated the scheduled hearing dates and rescheduled them for 5 August 2013. When the matter came back before me on 11 April 2013 an application was jointly made by the parties for additional time for filing material. I declined that application and adjourned the matter for further mention on 6 May 2013.
On 6 May 2013 the husband had not filed his affidavits and I noted that I was told that he was not close to doing so. I made a further direction that all evidence be filed and served by 26 July 2013 and tentatively set the matter down for hearing commencing 26 November 2013.
On 2 August 2013, the husband had still not complied with the direction to file his evidence and I made the following order:
By 4pm 2 September 2013 the husband file and serve all evidence upon which he seeks to rely subject to some exceptional circumstance happening. He should not expect that I would grant him any further indulgence. If no evidence has been filed by 2 September it is highly likely the matter will proceed without the court having the benefit of that evidence.
The husband did not comply with that order. I note in passing that counsel for the husband during this hearing appeared for the husband on 27 February 2013, 4 April 2013 and 2 August 2013 and the solicitor instructing at the final hearing appeared for the husband on 2 May 2013.
The single expert’s report was received on or about 9 August 2013.
On the first day of the final stage of the hearing, counsel for the husband indicated that he wished to ask the single expert questions. It was agreed that arrangements would be made for the single expert to give evidence on Monday 2 December 2013. On 2 December 2013 I was told that arrangements had been made with the single expert to give evidence by electronic means at 2.00 pm but that that was not acceptable to counsel for the husband because he wished to show the single expert at least one document. That document was an earlier report conducted by MM Accountants in 2007 for the purpose of obtaining a share value for the first and only share sale of W Pty Ltd. Exhibit 29 demonstrates that that report had been already sent to the single expert on 5 June 2012. At that stage, counsel for the husband indicated the purposes of showing that document to the single expert would be to challenge the discount rate of 40 per cent that the single expert had used for the purposes of her valuation. During that discussion I indicated (that apart from showing the document to the expert) I would not allow the expert to be asked any questions about what was in that document in circumstances where it was not in evidence and that it was highly unlikely that any leave would be granted for that report to be part of the evidence.
Counsel for the husband subsequently declined the opportunity to ask Ms KK any questions in cross-examination by electronic means. Given that that opportunity was declined, I concluded that Ms KK’s evidence had been finalised.
Counsel for the husband in making this application, relied on paragraph 401 and the first sentence of paragraph 404 of the husband’s affidavit sworn 25 November 2013. It was agreed that the husband could rely upon this affidavit in the final hearing, notwithstanding his previous non-compliance with orders. The effect of those two paragraphs is that the husband said that because of his “financial situation” and because of “numerous frustrations and concerns with the lack of progress”, he discontinued his relationship with his legal representatives and has had no contact with them “since August 2013”. The date in August when that contact ceased is not specified. Counsel for the husband in oral submissions, asked me to infer that it was at a time between 2 August 2013 and 9 August 2013 when the report was released. The evidence is inconclusive about that and it is more than likely that Mr Long was still acting for the husband when the report was received. The husband’s evidence is that he reengaged his solicitors on Friday 22 November 2013 having renewed conversations with them two days before that.
When asked on 2 December 2013, counsel for the husband was unable to indicate what issues or topics arising from the single expert report the husband wished to clarify if an extension of time to ask questions of the single expert were granted. Counsel for the husband was unable to provide that detail apart from saying that it might relate to questions about the discount rate and it might also relate to questions about the capitalisation rate used in the valuation. Counsel for the husband submitted that the husband had the right to seek further forensic advice in formulating the questions to the single expert. It is possible that questions to the single expert would not be the end of the matter and there would be further applications made in respect of adducing other evidence in relation to the valuation of W Pty Ltd.
The husband’s amended response filed 18 January 2013 sought an order that the shares the wife holds in W Pty Ltd be transferred to himself. At the commencement of the final stage of the hearing, the court was told that the husband had changed his position and now sought orders that the shares be sold or in the alternative, he transfer a sufficient number of his shares to the wife so that their shareholding in W Pty Ltd would be equal. Although I was not given the memorandum of articles of association of the relevant company or companies, it seemed agreed that that sale would have to be to internal directors and it is unlikely that the wife would have any control over that process at all, whereas the husband would have a far more substantial control in determining with his long term fellow directors, what an appropriate price might be.

As counsel for the wife pointed out, the wife had closed her case. The single expert’s affidavit had been read and an opportunity for the cross-examination of the single expert had been passed up by the husband.
Detriment to the wife can not only be measured in financial terms. The wife had the right to have the evidence finalised.
The husband had been given more than ample opportunity to deal with the issues that caused him concern. Counsel for the husband conceded that he had failed to comply with orders in respect of filing of material on a number of occasions. He has failed to give a satisfactory explanation as to why, after 9 August 2013, he did not make the application which he now presses. Given the opportunities he has had, there was no lack of procedural fairness in refusing his application. There was disadvantage to the wife if I did not.
For those reasons, I dismissed his application for an extension of time to ask the single forensic expert further questions.

APPROACH

In this matter my task is to:
75.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
75.2.Determine whether it is just and equitable to make an order altering those interests and if so;
75.2.1.Identify relevant contributions and assess them;
75.2.2.Consider relevant matters referred to in Section 79(4)(d) – (g) of the Act;
75.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

By the end of the hearing the most recent iteration of the balance sheet was contained in Exhibit 41. The parties agreed that superannuation interests should be added onto the balance sheet as an asset. The parties also suggested that notwithstanding the obiter in Bevan & Bevan (2013) FLC 93-545, they preferred that controversies involving financial benefits received by the parties post separation be initially dealt with mathematically on the balance sheet. Given that that was the approach of both parties, I am prepared to adopt it.
In these reasons I have renumbered some of the items in Exhibit 41 so that superannuation interests are included with other assets, and items which initially contained a capital letter in their numbering now simply receive a number in numerical sequence.
So far as I understand it, the ownership of items 2 and 3 on Exhibit 41 are incorrectly stated. Suburb M is in the sole name of the husband and is not jointly owned. Suburb F is also in the sole name of the husband and not registered in the name of the wife. I have also assumed that the liability on the Town S property is a joint liability rather than being in the sole name of the wife.
I set out Exhibit 41 in the table below with the alterations referred to in the previous paragraph. Where values are not agreed they appear in bold as determined by me. The reasons for each determination made are set out under item numbers following the table.

ASSETS
Item no.	Title	Description	Wife	Husband	Agreed/ Determined	Value
1	J	Town S property	$750,000.00	$750,000.00	Agreed	$750,000.00
2	H	Suburb M property	$430,000.00	$430,000.00	Agreed	$430,000.00
3	H	Suburb F	$1,300,000.00	$1,300,000.00	Agreed	$1,300,000.00
4	H	Shares in W Pty Ltd	$273,842.00	$273,842.00	Agreed	$273,842.00
5	W	Shares in W Pty Ltd	$217,494.00	$217,494.00	Agreed	$217,494.00
6	W	Controlled monies account	$248,967.00	$248,967.00	Agreed	$248,967.00
7	W	Household contents	$10,000.00	$10,000.00	Agreed	$10,000.00
8	J	Shares in Company EE	$0.00	$0.00	Agreed	$0.00
9	W	CBA accounts …505 & …992	$26,799.00	$26,799.00	Agreed	$26,799.00
10	W	HSBC Hong Kong a/c …321	$1,883.00	$1,883.00	Agreed	$1,883.00
11	W	US share portfolio	$40,173.00	$40,173.00	Agreed	$40,173.00
12	H	US Citibank savings a/c	$650.00	$650.00	Agreed	$650.00
13	H	Citibank cheque a/c	$0.00	$0.00	Agreed	$0.00
14	H	Citibank Hong Kong cheque a/c	$0.00	$0.00	Agreed	$0.00
15	H	Citibank Hong Kong savings a/c	$0.00	$0.00	Agreed	$0.00
16	H	CBA account …298	$8,571.00	$4,000.00	Determined	$8,571.00
17	H	CBA (SYD) netbank saver	$0.00	$0.00	Agreed	$0.00
18	H	HSBC (HK) savings a/c	$0.00	$0.00	Agreed	$0.00
19	W	HSBC accounts	$4,258.00	$4,258.00	Agreed	$4,258.00
20	W	Solicitors trust a/c	$0.00	$0.00	Agreed	$0.00
21	J	Citibank investment a/c …275	$403.00	$403.00	Agreed	$403.00
22	J	Citibank investment a/c …090	$13,171.00	$13,171.00	Agreed	$13,171.00
23	W	UK premium bonds	$43,515.00	$43,515.00	Agreed	$43,515.00
24	J	(Co) HSBC a/cs …161 & …236	$2,550.00	$2,550.00	Agreed	$2,550.00
25	J	CBA a/c …931	$178.00	$178.00	Agreed	$178.00
26	J	Hong Kong a/cs	$1,351.00	$1,351.00	Agreed	$1,351.00
27	H	HSBC (HK) current a/c	$0.00	$0.00	Agreed	$0.00
28	H	HSBC (HK) foreign currency a/c	$0.00	$0.00	Agreed	$0.00
29	H	36 G Company shares @ $188	$6,768.00	$6,768.00	Agreed	$6,768.00
30	W	2008 Citroen	$18,000.00	$18,000.00	Agreed	$18,000.00
31	H	2006 Mitsubishi	$15,300.00	$15,300.00	Agreed	$15,300.00
32	H	2010 Honda motor bike	$7,200.00	$7,200.00	Agreed	$7,200.00
33	J	Household contents at Town S	$10,000.00	$10,000.00	Agreed	$10,000.00
34	J	Art works	$7,000.00	$7,000.00	Agreed	$7,000.00
35	W	Household furniture	$10,000.00	$10,000.00	Agreed	$10,000.00
36	H	Household contents with husband	$10,000.00	$10,000.00	Agreed	$10,000.00
37	J	Farm machinery at Town S	$15,000.00	$5,000.00	Determined	$5,000.00
38	W	Legal fees paid by wife	$375,025.00	$375,025.00	Agreed	$375,025.00
39	H	Legal fees paid by husband to date	$593,000.00	$537,224.00	Determined	$537,224
40	H	Balance of 10% deposit on sale of Hong Kong unit	$92,000.00	$0.00	Determined	$0.00
41	H	Balance of draw down on Suburb F mortgage post separation	$20,000.00	$0.00	Determined	$0.00
42	H	Orders 27.2.13 re Town S mortgage	$28,400.00	$0.00	Determined	$0.00
43	H	Orders re payment of school fees	$41,300.00	$0.00	Determined	$0.00
44	H	Sale proceeds of Company PP shares	$54,000.00	$0.00	Determined	$0.00
45	H	Sale proceeds of Company PP shares asserted to be held as trustee for father and brother	$103,040.00	$0.00	Determined	$0.00
46	W	Interim orders 17.1.12 & 1.6.12 wife's favour granting $275,000 to meet living expenses	$0.00	$0.00	Agreed	$0.00
47	W	other monies received by wife	$0.00	$0.00	Agreed	$0.00
48	W	Other monies received by wife pursuant to orders 2.12.13	$20,000.00	Determined	$20,000.00
49	H	Monies paid to husband for his share of single expert	$16,500.00	$16,500.00	Agreed	$16,500.00
50	H	EHKD725,00 in HSBC as at 17.1.12	$0.00	$0.00	$0.00
51	H	CBA rollover fund	$56,463.00	$56,463.00	Agreed	$56,463.00
52	W	MPF preserved a/c (HK)	$7,140.00	$7,140.00	Agreed	$7,140.00
53	H	MPF preserved a/c (HK)	$5,847.00	$0.00	Determined	$0.00
54	H	G Company Super	$112,653.00	$112,653.00	Agreed	$112,653.00
Total assets			$4,588,078.00
LIABILITIES
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
55	J	CBA mortgage – Town S property	$270,744.00	$270,744.00	Agreed	$270,744.00
56	J	Reimbursement due to wife from controlled monies a/c	$3,910.00	$0.00	Determined	$0.00
57	J	Outstanding school fees	$0.00	$0.00	Agreed	$0.00
58	H	Suburb F mortgage	$416,363.00	$416,363.00	Agreed	$416,363.00
59	H	CBA Diamond Awards Card …	$0.00	$27,000.00	Determined	$24,897.00
60	H	CBA low fee mastercard	$0.00	$0.00	Agreed	$0.00
61	W	HECS debt	$23,354.00	$23,354.00	Agreed	$23,354.00
62	W	Tax on controlled money a/c interest	$8,902.00	$0.00	Determined	$8,902.00
63	W	Cost order against wife 2.8.13 in favour of W Pty Ltd	$22,000.00	n/k	Determined	$0.00
64	H	Potential income tax for years 2007 to date	$0.00	$91,245.00	Determined	$20,038.00
65	H	Debt to Mr NN George	$0.00	$32,000.00	Determined	$0.00
66	H	Debt to Mr OO George	$92,000.00	$92,000.00	Agreed	$92,000.00
Total liabilities			$856,298.00
Total net assets			$3,731,780.00

Disputed items

Items 4 & 5

The wife asserts her share in W Pty Ltd is $217,494 and that the husband’s share is $273,842. The husband originally asserted in his financial statement sworn 25 November 2013 that the value of his shares were $137,500.
There was originally a dispute in the trial as to the value of W Pty Ltd. As set out above, the expert report completed by Ms KK was not accepted by the husband. The husband chose not to cross-examine Ms KK, and did not seek to call any other expert in respect to the value of the shares. The only evidence before the court as to the value of W Pty Ltd is Ms KK’s report. The husband at the end of the hearing conceded the wife’s figures on the balance sheet.

Item 16

This dispute related to the husband’s interest in CBA account …298. At the commencement of the hearing on 27 November 2013 the husband informed the court that the balance in this account was $8,571 (see Exhibit 13 and the husband’s financial statement sworn 27 November 2013). At the recommencement of the part heard matter on 15 January 2014, the husband gave oral evidence that that account had reduced by an amount of $4,000 but the husband did not give evidence about why the balance in that account had reduced. Accordingly, I will treat the balance in the account as it existed in his financial statement in November 2013 and therefore the determined figure for item 16 will be $8,571.

Item 37

The wife asserted in Exhibit 41 that the farm machinery at the Town S property had a value of $15,000. The husband’s assertion was that it had a value of $5,000. The wife’s assertion of $15,000 is contained in her financial statement (at item 43). It is the mutual position of both the parties that the husband will retain the farm machinery. The wife conceded there was no expert evidence of the value of the machinery. I am left with the concession by the husband as to his estimate of the value of the farm machinery. The wife in the end conceded that that item be determined to be $5,000.

Item 39

This item concerns legal fees paid by the husband. There were two parts to the evidence given by the husband that were not entirely consistent.
The first part related to evidence by the husband about direct payments that he had made on legal fees. Exhibit 14 is the husband’s cost disclosure letter dated 27 November 2013. It indicates that the husband had paid $271,355.50 to his former lawyers and $192,287 to his current lawyers. In addition to what is contained in that letter of 27 November 2013, the husband gave oral evidence that in respect of legal costs paid after 27 November, he had borrowed a further amount from his brother of $92,000 which was paid to his lawyers and he had also provided an amount of $20,000 which had been released to him from the controlled monies account in December 2013 to his lawyers. The total of those four amounts is in the sum of $575,000.
The other tranche of evidence given by the husband about the payment of legal fees are estimates that he made in the witness box in respect of monies deducted for legal fees from particular sources. He gave the following evidence about monies paid for legal fees:
86.1.$95,000 from the amount of $187,000 which was the 10 per cent deposit on the sale of the Hong Kong unit.
86.2.$45,000 from a distribution of $100,000 that he had received from controlled monies.
86.3.The full amount of $200,000 being further release of monies from the controlled monies account.
86.4.$40,000 from a draw down of $60,000 from a facility.
86.5.$20,000 from the December 2013 release of funds from the controlled monies account.
86.6.$92,000 from his brother.
86.7.$100,000 out of the sale of the Company PP shares totalling $154,000.
The total of those seven payments was $592,000.
I accept the husband’s submission that the second tranche of evidence in relation to paid legal fees were estimates that the husband gave in the witness box without the benefit of having documents before him and that the more reliable evidence is contained in Exhibit 14, being a letter prepared by his lawyer dated 27 November 2013. I consequently find that the husband has paid legal fees in the sum of $575,642.
The next question concerning item 39 relates to an amount of $38,418.30 which was part of the $271,000 paid to the husband’s former lawyers for Local Court proceedings. It is not a matter of controversy that after the separation the husband was charged with assault occasioning actual bodily harm against the wife (and there were also AVO proceedings). Although the prosecution established a prima facie case, the husband successfully defended the assault charge and he was acquitted.
Although the argument was not fully developed, I understood the husband’s submission to be that the $38,418 should not form part of any consideration in these proceedings as they were legal fees relating to other proceedings and the husband was vindicated in the expenditure of those funds by virtue of the acquittal which he obtained in the Local Court. I am attracted to that submission and the amount that I will record for item 39 is the sum of $537,224 ($575,642 - $38,418).

Items 40, 41 and 44

In the previous discussion about item 39, I have referred to amounts of money that the husband received after the separation from various sources that were not paid in respect of legal fees. These three items relate to balance of funds received by the husband once the payment of legal fees had been taken into account. I pause to refer to what I have already noted, that is, there is a discrepancy of some $17,000 ($592,000 - $575,000 between what the husband said he paid in legal fees out of the seven amounts of money to which I have referred in the discussion under item 39, and what I have found he actually paid). There was however no submission that that additional $17,000 should be added onto the balance sheet against the husband.
Item 40 is the sum of $92,000 which represents the amount the husband had available to him from the 10 per cent deposit on the sale of the Hong Kong unit after he paid legal fees ($187,000 - $95,000).
Item 41 is the sum of $20,000 which the husband had available to him after he paid $40,000 out of the draw down of $60,000 from a facility.
Item 44 is an amount of $54,000 which the husband had available to him after he paid $100,000 in legal fees out of the sale of Company PP shares for $154,000.
The three items claimed by the wife total $166,000 ($92,000 + $20,000 + $54,000).
The husband’s position is that these monies should not be added back against him on the balance sheet.
The wife did establish that during the 27 month period from 31 July 2011 (a date shortly after the physical separation) and 30 September 2013, the husband received by way of income from personal exertion, after tax was withheld and payment was made to the Child Support Agency, a total amount of $249,676 (see Exhibit 32). That is an average monthly income of $9,247 ($249,676 ÷ 27).
The husband responded in two ways. The first was to point to evidence about his shortfall in expenditure over income during this period and secondly, to point to monies that the wife received during the post separation period that the husband has not sought to bring to account.
In relation to the shortfall, the husband’s financial statement sworn 17 January 2012 (Exhibit 30) shows on its face that the husband’s total average weekly income was $4,457 per week and that his total personal expenditure was $6,928 per week. That is, there was a shortfall of $2,471 per week. The husband conceded that item 20 in his personal expenditure was an error, being a payment for superannuation in the sum of $379. That payment was made directly by his employer to a superannuation fund. That reduced the shortfall to $2,092 per week. If the expenses were extrapolated over a 27 month period, the total would be $244,575 ($2,092 per week x 27 x 4.33). That shortfall more than covers the amounts in items 40, 41 and 44.
The amount is not that high however, because as counsel for the wife pointed out, by June 2012 (and until September 2013, a period of 16 months) some of the payments recorded in the husband’s financial statement of 17 January 2012 were being paid from the controlled monies account and in particular, a significant proportion of an amount of $739 per week in respect of school fees for the children and the payment of the mortgage to the Commonwealth Bank for the Town S property in the sum of $727 per week.
Although it was not developed during submissions, in the event that the amount for school fees and the Town S mortgage were eliminated as considerations of ongoing commitments by the husband from 1 June 2012 onwards (and for simplicity of the calculation, I will take the whole of the school fees, acknowledging the husband’s evidence that he still continued to pay some school fees), a calculation could be done that would indicate that the shortfall that has previously been calculated of $244,575 would be reduced by an amount of $101,564 (being ($739 + $727) x 16 months x 4.33). This would lead to a calculation on the husband’s case that his shortfall during the period was $143,000 ($244,575 - $101,564). That is to be compared with the total of the items claimed by the wife against the husband under these three items of $166,000.
Those calculations might lead to an amount of $23,000 being added back against the husband were it not for the second part of the husband’s argument which relates to funds received by the wife which have not been taken into account on the balance sheet. It was claimed by the husband that the wife has received amounts after separation totalling almost $800,000. Of those amounts, an amount of $375,000 is added onto the balance sheet against the wife at item 38 for paid legal fees. That leaves an amount of $425,000 which the husband has not sought to be brought to account against the wife.
It follows from the above discussion that it is not appropriate to add any amounts back against the husband for items 40, 41 and 44.

Items 42 and 43

Orders were made on 1 June 2012 that certain monies be paid out of the controlled monies account, including payment of school fees and costs of school uniforms, cost of school sports uniform, cost of school books and L's excursion to South Asia in September 2012 and for such monies paid to be characterised ultimately by the Trial Judge.
Up until June 2012 the husband has been paying monies in respect of the regular repayments of the Town S mortgage and private school fees. Item 42 is a calculation by the wife of the amount paid out of the controlled monies account in relation to the Town S mortgage ($28,400) since June 2012 and item 43 is a calculation of the amount paid out of the controlled monies account in relation to school fees ($41,300) since June 2012.
The wife was asked questions during cross-examination about the financial circumstances of the parties at the time of the separation. The wife acknowledged that a spreadsheet containing figures for the prior twelve months indicated a shortfall of income over expenditure as at the date of separation. That shortfall was exacerbated by the additional expense of the wife renting after the separation and the establishment of two households.

The husband points to an agreement between the parties that is evidenced in Exhibit 21, which the wife agrees she signed but not on the date that the document is dated (namely the day after separation being 26 June 2011). In that document the wife gives instructions, along with the husband, to their lawyer in Hong Kong that upon the completion of the sale of the Hong Kong unit, the sale proceeds would be used to pay off the mortgage held in the joint names of the parties with the Commonwealth Bank on the Town S property. The wife subsequently withdrew these instructions and did not ultimately consent for the funds of the Hong Kong apartment to be used for the purposes of discharging the mortgage on the Town S property.
The husband argues that nothing should be added back because of shortfall in the husband’s income over his expenditure.
Counsel for the wife criticised the figures in the husband’s most recent financial statement which show a greater shortfall of income over expenditure than his January 2012 financial statement. Counsel for the wife highlighted item 30 in the husband’s November 2013 financial statement where the husband claims that he had credit card payments on a weekly basis to Mastercard and Visa totalling $2,000 per week. I accept counsel for the wife’s submission that there is a double counting of some of the expenditure set out in Part N of that financial statement. Counsel for the wife also pointed to an incorrect figure for tax (it should be $1449 not $1570) and the error in item 20, already mentioned, namely an expense of $422 per week for superannuation where that was an additional amount paid directly by the husband’s employer to the superannuation fund and was not an expense to the husband. Those corrections amount to $2,543. That still however leaves a shortfall on the financial statement of over $1,000 ($7,916 - $4,336 - $2,543).
The husband however relied upon a more simplified version of his financial position which was set out in Exhibit 43 which contains a calculation in respect of his gross monthly income and his fixed monthly expenditure, indicating a shortfall of $1,086. As part of the calculation in Exhibit 43, the husband takes the total of his Part N discretionary expenditure in the sum of $2,141 per week and converts that to a figure of $9,277 per month ($2,141 x 4.33). The husband was asked no questions about that expenditure. Although Part N clearly involves some expenditure in relation to the children, it is not completed in a way that would allow me to tease out what the husband’s expenses are and what the children’s expenses are. An example of an amount that looks more than one would expect is $640, being a weekly bill for food.
I also have regard to the discussion about the funds the wife received after the separation, which are not the subject of any adjustment.
I am not satisfied that it is appropriate to add anything back against the husband in respect of the monies that have been paid out of the controlled monies account since 1 June 2012 for servicing the mortgage on the Town S property or paying school fees.

Item 45

Item 45 on the balance sheet relates to monies that the husband asserts he received from the sale of Company PP shares, which he says he held as trustee for his father and his brother. The amount involved is $103,040. It is not a matter of controversy that these Company PP shares were held wholly in the husband’s name.
The wife was of the belief that the husband had the whole of the interest in this tranche of Company PP shares. She said that the husband had not at any time when they were together, mentioned that he held shares for his father and brother. She said that shortly after the marriage she asked whether or not he owed any monies to his family and he told her he did not.
The husband originally attempted to set out the position in relation to shares that he held in trust for his brother and his father at paragraph 234 of his affidavit sworn 25 November 2013. The husband was given leave to give oral evidence in relation to matters that were struck out of that paragraph. What remained of that paragraph was annexure Y which demonstrated that on 29 April 1994 the husband purchased in his name 884 Company PP shares at a purchase price of $7.81. The husband gave oral evidence, which was not successfully challenged during cross-examination, that at the time of the acquisition of this tranche of Company PP shares, he had conversations, particularly with his father, about acquiring and holding shares on their behalf. His father was to receive 40 per cent, his brother was to receive 30 per cent and the husband was to retain 30 per cent of the shares. The husband was working for Company PP at the time of the acquisition of these shares. He said he spoke to his father who had not bought shares before. There was a discounted offering to employees. His father asked if he could buy at discount through him and wanted to buy some for his brother as a wedding gift.
Paragraph 235 of the husband’s November 2013 affidavit indicates that this transfer of Company PP shares was sold in August 2012 for $147,200 and that he received 30 per cent of that amount, being an amount of $44,160 from the sale of that tranche of shares. He annexes to his affidavit (annexure Z) documents which he says are two Commonwealth Bank withdrawal confirmations that relate to the transfer of the proceeds to accounts of his brother and his father. Whilst those annexed documents do not on their face obviously corroborate the husband’s statement, he was not challenged about what he asserted was the meaning and effect of those annexures.
I accept the husband’s sworn evidence that he held this tranche of Company PP shares on trust for his father and brother in the proportions asserted by him and accordingly no amount will be recorded against the husband for this item on the balance sheet.

Item 48

The husband asserts that the $20,000 that the wife received in December 2013 pursuant to an indication I made during the first part of the final hearing should be added back against the wife. Counsel for the wife made submissions from the bar table that, given these monies were spent on living expenses, they should not be counted against the wife. No evidence was called to indicate the purpose to which that money was used by the wife. The $20,000 which the husband received has been added back as part of his legal fees. Absent any evidence by the wife as to how she used the funds, there is no justification for not bringing that $20,000 into account against the wife.

Item 49

In final submissions, this became an agreed figure of $16,500.

Item 53

There was some controversy about whether or not the husband continued to have a superannuation interest in Hong Kong (this interest was noted in his financial statement of 17 January 2012 but does not appear in his most recent financial statement). The wife did not press her contention that the husband had any interest in a superannuation account in Hong Kong. Accordingly that item will be determined as nil.

Item 56 (formerly item 50 in exhibit 41)

This item was described as “Reimbursement due to wife from controlled monies a/c”. The wife claims that monies are owed to her from joint funds in the sum of $3,910. During the hearing counsel for the wife explained that the wife had funded a trip for L for which she sought reimbursement. My attention was not drawn to any evidence about this expenditure. The wife did not highlight this item (by the use of yellow colouring) in Exhibit 41 as she had with other disputed items. This claim by the wife attracted no submission by counsel for the wife and no comment by counsel for the husband. Accordingly I intend to mark that item as nil.

Item 59

The husband claims an existing credit card debt in the sum of $27,000.
I have discussed above the submissions about Exhibit 43 (the calculated $1,086 per month shortfall in income over expenditure which the husband submits he has).
Given the amount that the wife has received post separation in respect of living expenses which have not been brought to account on the balance sheet, I am prepared in the circumstances of this case to accept the husband’s claimed credit card debt as a liability which is to be placed on the balance sheet.
However, the quantum of the credit card debt on the husband’s November 2013 financial statement was not $27,000 but rather $24,897. I am prepared to allow credit cards in accordance with his sworn financial statement.

Item 62

The wife claims that she will be responsible for paying tax upon monies that she has received being a sum equivalent to the interest from the controlled monies account. The wife asserts that that tax will be in the sum of $8,902. The wife referred to the supplementary tender bundle at tabs 8 and 9. These are Notices of Assessment from the Australian Taxation Office to the wife for the years ended 30 June 2012 and 30 June 2013. The wife is liable to pay $481 for the 2012 tax year and $8,420 for the 2013 tax year. Both these notices are dated November 2013 and I infer that the tax payments are probably currently unpaid but I do not know if that is so. The husband’s position is that the orders providing that the wife receive the interest from the controlled monies account implicitly imposed upon the wife an obligation to pay tax on that income. The difficulty with that submission is that the order is an order designed to attend to the support of the wife. In those circumstances, both have responsibility for the payment of the tax on the interest on the controlled monies account as indicated on exhibit 14 and in order to achieve that, the liability will be acknowledged on the balance sheet as a liability for which the wife has a responsibility to pay. The wife shall be otherwise responsible for any future tax incurred upon the interest in the controlled monies account.

Item 63

The parties between them own just over nine percent of the shares in W Companies (there are six different companies).
This item deals with the liability the wife has to pay W Companies; amounts of money both pursuant to a cost order made by myself on 2 August 2013 in respect of proceedings relating to a subpoena, and more generally in relation to compliance costs associated with providing information and documents for the purposes of the valuation of W Pty Ltd. The amount involved is detailed in a letter by Bartier Perry dated 1 August 2013 to the wife’s lawyers (part of Exhibit 38). Details of the costs of the companies for which Bartier Perry represented are set out as follows:
Our client’s costs in that regard are as follows:
· Legal costs including those relating to:
-Corresponding with you regarding the subpoenas immediately after service, including preparing to file a notice of opposition, in the amount of approximately $6,600 (incl. GST)
-The negotiation of the terms of the agreement, and the ongoing compliance with the agreement in the amount of approximately $2,759.43 (incl. GST)
-Your client’s application and supporting affidavit, and preparation for court hearing on 2 August 2013 in the amount of approximately $4,720 (incl. GST)
-Counsel fees in relation to the application and supporting affidavit in the amount of $660 (incl. GST)
· Our client’s costs of complying with the subpoenas in the amount of $7,850 as follows:
-[Mr QQ], consultant, 2 days @ $1,800/day
-[Mr RR], accountant, 4 days and 2 hours @ $1,000/day
In light of the above, our client’s costs occasioned by you client’s subpoenas and application are in the amount of $22,589.43.
The position of the wife leading to the court hearing on 2 August 2013 was that she had received communication from the single expert that the valuation could be completed making various assumptions without the provision of the full suite of documents that had been requested. The wife took the position that in those circumstances she would agree to an adjournment of the application relating to the subpoena listed on 2 August 2013 to a date after she had available to her the single expert report, at which time she would make a decision as to whether or not to press for some or all of the documents in the subpoenas. On 2 August 2013 the third party opposed any adjournment application. The adjournment application was refused. The third party was successful in having the subpoenas struck out. A costs order was made against the wife in favour of the third party in relation to those proceedings. The wife consequently has a liability to the third party under the costs order on a party/party basis and additional compliance costs.
I shall not add any amount to the balance sheet for this item. There will be a separate order relating to how the parties will be required to pay these costs.

Item 64

The husband wishes his potential liability for tax to be placed upon the balance sheet. He has not lodged tax returns for some time and relies upon advice from his accountant, Mr SS. A letter from Mr SS of 24 July 2012 was tendered in evidence and became Exhibit 31. In that document Mr SS refers to having prepared some draft returns using some estimates and concluded that for the 2007-2011 years the husband would be liable for income tax in the sum of $23,609.35. This however did not take into account capital gains tax in relation to the disposition of the Hong Kong property nor the possible disallowance of deductions claimed both in relation to interest paid and the loan for the farm (Town S) and the running costs of the farm. If those contingencies were taken into account, Mr SS was of the opinion that the tax liability may be as high as $57,692.
All of this advice is highly contingent upon the provision of further information by the husband. Mr SS indicates that he would require the following documents:
131.1.Rental statements or bank statements detailing rent received and expenses for the Hong Kong property;
131.2.Citibank loan statements detailing interest paid on the Hong Kong property;
131.3.Valuation of the Hong Kong property as at the date the husband returned to Australia;
131.4.Commonwealth Bank loan statements detailing interest paid in respect of the farm.
Counsel for the wife submits that I could not be confident that the husband would ever lodge a tax return. That however does not make the liability go away. Given the uncertainty about the quantum, the appropriate approach is to take this potential tax liability into account when dealing with s 79(4)(d)-(g) matters.
There is more certainty about the calculation by Mr SS in relation to the capital gains tax liability of the husband in respect of the sale of the Company PP shares. His calculation of tax on the sale of all shares is $33,552. However, I have accepted the husband did not own 70 per cent of the second tranche of shares. I accordingly accept the calculation by counsel for the wife on page 4 of Exhibit 41 of tax payable in the sum of $20,038.

Item 65

This item relates to a claim by the husband that he owes his father $32,000. Those debts are said to relate to firstly an amount of $6,000 lent to the husband in about 1988 upon the acquisition of the Suburb Y property and the balance of $26,000 lent to the husband by his parents in about 1997 when the parties acquired the Suburb F and Town S properties.
Although the evidence is scanty, I accept the husband’s assertion that these amounts were received by him. I am unable to conclude that the husband’s father would ask that his son repay these monies.
The second amount of $26,000 was an amount paid to the husband during the marriage and is subsumed into the husband’s concession that during the marriage contributions made by and on behalf of the parties from the date of cohabitation to the date of separation (excluding the husband’s initial contributions) were equal.
It was demonstrated conclusively that at various points of time the husband had more than ample funds to repay these asserted liabilities but did not do so. I find that it is highly unlikely that they will ever be repaid and consequently will not add a debt of $32,000 to the balance sheet in relation to monies owed by the husband to his father.

Item 66

There was a concession that given that the full amount of the husband’s legal fees had been added to the balance sheet, then the part of those legal fees that were sourced from borrowings from his brother should be added as a liability.

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

The parties have separated and their partnership has ended after a marriage of over 16 years with four children. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. As the balance sheet set out above demonstrates, the assets and liabilities remaining with each party are $518,909 held jointly, $2,221,873 held by the husband and $990,998 held by the wife.
Both parties have sought an order for property settlement and I find that in all the circumstances, it is just and equitable to make an order altering property (including adjusting liabilities).

CONTRIBUTIONS

Initial Contributions

The husband asserts that at the commencement of cohabitation he brought into the relationship significant assets, some of which the parties have continued to hold without substantial further contribution being made to their conservation or improvement.
In Pierce and Pierce (1999) FLC 92-844, the Full Court said at page 85,881:
In our opinion it is not so much a question of erosion of contributions but a question of what weight is to be attached, in all the circumstances, to the initial contributions. 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, in this case of the husband, regard must be had to the use made by the parties of that contribution.
In Williams and Williams [2007] FamCA 313 the Full Court said:
We think that there is a force in the proposition that a reference to the value of an item as at the date of the 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 towards 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 significant 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 realized 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.
The statement in Williams, about giving recognition to the value of introduced assets at the date of hearing, has to be read, particularly in a long marriage, in light of the statement by Bereton J at paragraph 66 of Kardos v Sarbutt (2006) 34 Fam LR 550:
…in a long marriage, ongoing income contributions and contributions as a homemaker and parent, if they have not resulted in the acquisition of assets sufficient to recognise that, may warrant the ‘erosion’ of initial contributions so that all contributions can be satisfied to some extent, though not in full, out of the available property.
The wife conceded that she had no significant assets at the commencement of the relationship and only nominal savings.
The initial contributions made by the husband are disputed by the wife. It is the wife’s contention that the husband’s initial contributions do not exceed $100,000. The husband’s evidence is that his initial contributions amounted to substantially more than that.

Spousal maintenance

The wife seeks an order that the husband pay to her by way of spousal maintenance the sum of $1,000 per week for a period of five years from the date of the orders. It is anticipated that the wife will obtain paid employment at a rate of somewhere between $35 - $45,000 per year. I take into account the capital adjustment the wife has received by way of property orders. The wife in her most recent financial statement indicates that her discretionary weekly expenditure on herself is in the sum of $1,006 per week. She was not tested in relation to that expenditure. In addition, the wife is paying rent in the sum of $922 per week (some of which is referrable to the children). If the wife takes the option of taking the Suburb F property, she will need to refinance the mortgage on that home. The wife spends some small amounts on term life insurance, car insurance and registration. All in all, the wife’s reasonable weekly expenditure would be about $1,500 per week as claimed by her. The shortfall between her expenditure and her anticipated income cannot be met other than by way of drawing on capital or borrowings against a future increase in her income. Whilst the wife has established a need in the short term, that need can be satisfied from her asset base (or borrowing against that base). The wife has not established that she will be unable to adequately support herself. I find it is not proper to make a periodic spousal maintenance order in the wife’s favour. The wife’s application for spousal maintenance will be dismissed.

THE LIABILITY IN RESPECT OF THE COSTS TO THE W COMPANIES

As between the parties, there are competing positions as to who should bear the responsibility for the costs of the W Companies. The wife points to a history set out at paragraphs 199 through to paragraph 219 of her affidavit filed 7 May 2013 (and Exhibits MG57 to MG74) of attempts made primarily by the single expert to obtain documents from W Pty Ltd and the subsidiary companies.
At all times the husband was a director of the W Companies and is a long time close associate of the other directors of the W Companies. The husband conceded in oral evidence that it was probable that had he requested information from those controlling the subsidiary companies it would have been provided to him. He said that he did that in part, but when in his view the requests for information became onerous and aggressive, on the advice of family and friends he stepped back and let the wife and the single expert deal directly with the other directors. Counsel for the husband pointed to suggestions by the husband in his evidence that his mental status had suffered, particularly as a result of the proceedings. Counsel for the husband says that the husband cannot be seen as the driver of all that happened at court on 2 August 2013 and it was the husband’s submission that the whole of costs claimed by the third party should be visited upon the wife, particularly as the primary reason that the subpoenas were struck out was the breadth of the terms in which the subpoenas had been issued.
The decision about who should pay the costs of the W Companies turns primarily on comparing the conduct of the parties. The husband’s lack of willingness to be involved in the discovery of documents by the W Companies is a significant reason for the costs orders which have been made against the wife. Whilst the husband should bear the substantial responsibility for the costs that the wife incurred with W Pty Ltd, the breadth of the subpoenas issued by the wife and the wife’s pursuit of information beyond what the single expert indicated was absolutely necessary to provide the valuation upon which the parties ultimately relied, means that the wife should, as between the husband and herself, share the responsibility to pay some of the costs ordered against her.
I find that the husband and wife should pay, as between themselves, any costs the wife has been or will be ordered to pay to the W Companies, as to 75 per cent by the husband and 25 per cent by the wife.

I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 27 January 2015.

Associate:

Date: 27.1.2015

SCHEDULE 1

Orders 1 to 9 related to children’s issues which are no longer relevant

That within thirty (30) from that date of these Orders:
(a)The husband do all acts on things and sign all documents necessary to transfer to the wife all of his right, title and interest in the parties former matrimonial home situated at and known as [T Street, Suburb F] in the State of New South Wales being the whole of the land in folio identifier … ("the [Suburb F] home") subject to the secured mortgage having a balance owing of not more than $430,000; and
(b)The husband do all acts and things and sign all documents to transfer to the wife all of his right, title and interest in the property situated at and known as [C Street, Town S] in the State of New South Wales being the whole of the land in folio identifier … ("the [Town S] property") free from encumbrance.
That contemporaneously with the husband's compliance with Order 1(a) [sic] hereof the wife:
(a)do all acts and things and refinance the mortgage secured over the [Suburb F] home in favour of the Commonwealth Bank up to a balance of $430,000 in the wife's sole name; and
(b)do all acts and things and transfer to the husband all her right, title and interest in the [W] Pty Limited shares.
That within twenty eight (28) days from the date of these Orders and by no later than 12 noon on that day:
(a)The husband is to vacate the [Suburb F] home and leave the same in good Order and condition including ensuring that all taps, cisterns, ovens, stoves, lights, dishwasher, curtains, blinds, fixtures and fittings are in good order and condition;
(b)The husband must deliver to the wife's solicitors the keys, remote controls, and all spare keys for the [Suburb F] home (in relation to all doors, gates and letter box) as well as the alarm code for the said home (if an alarm is connected);
(c)That after 1:00pm on the day that the husband had complied with Order 3(b) the wife shall be at liberty to collect the keys and remote controls and the alarm code for the [Suburb F] home for the purposes of inspecting the home to ensure that it is in good order and condition.
That pending the husband's compliance with Orders 1, 2 and 3 hereof:
(a)The husband be restrained by injunction from dealing with, transferring, encumbering, further encumbering or in any way dealing with the properties situated at and know as:
(i)[T Street, Suburb F] in the State of New South Wales being the whole of the land in folio identifier …;
(ii)[C Street, Town S] in the State of New South Wales being the whole of the land in folio identifier …; and
(iii)[B Street, Suburb M] in the State of New South Wales being the whole of the land in folio identifier …;
(b)Pay as and when fall due all mortgage repayments in relation to the [Suburb F] home and the [Town S] property as well as all outgoings including any outstanding liabilities on the said properties, including but not limited to water rates, council rates, land tax, electricity, telephone, gas, internet, Foxtel and all other outgoings; and
(c)Pay the Loan/mortgage balance on the mortgage secured against the [Suburb F] home above $430,000.
That forthwith the wife be entitled to the monies in the controlled monies account with the Commonwealth Bank of Australia (CBA) being account number …546 being an account held in the name of [Ms George] and to this end it is requested that the CBA give effect to this Order with the wife to be the sole signatory on the account for this purpose.
That in the event that the husband fails, omits or neglects to comply with any of his obligations in Orders 1, 2 ,3 and 4 [sic] hereof then forthwith the husband is to do all acts and things and sign all documents necessary to list for sale the property situated at and known as [B Street, Suburb M] in the State of New South Wales being the whole of the land in folio identifier …(“The [Suburb M] Property”) for the best price reasonable obtainable in the following manner:
(a)List the [Suburb M] property for sale by private treaty with such agent as the parties may agree to appoint and in default of agreement as to agent within fourteen (14) days with such agent as the President of the Real Estate Institute of New South Wales shall appoint ("the Agent") the costs of and incidental to such appointment to be borne by the husband as and when same fall due.
(b)The sale price which the [Suburb M] property shall be listed shall be mutually agreed upon by the parties or in the absence of agreement reached within fourteen (14) days of the date of these Orders shall be the price nominated as the fair market value thereof by the agent retained to manage the property.
(c)The Husband co-operate in every way including without limiting the generality of the forgoing:
(i)Making the key available to the agent;
(ii)Allowing the inspection of the [Suburb M] property at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring the [Suburb M] property is in neat and clean condition at the time of the inspection by the agent and prospective purchases;
(v)Signing all documents requested by the agent in relation to the listing for sale of the [Suburb M] property except a contract or agreement for sale which has not been authorised by the parties solicitors;
(vi)execute a contract for sale in the form prepared by the solicitors having the contract of the sale at a price agreed upon by the parties or in the absence of any agreement at or above the price nominated by the agent;
(d)The husband shall instruct such solicitor as agreed upon by the parties to have to the conduct of sale on behalf of the husband or in the absence of agreement reached within fourteen (14) days of the date of the husband's default in Order 6 hereof shall instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales ("the solicitor") the costs of an incidental to such appointment to be borne by the husband as and when the same fall due.
(e)Neither party may confer on any agent without consent of the other party and right, and any sole or exclusive agency in respect of the [Suburb M] property or to any commission; and
(f)The wife shall be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the [Suburb M] property.
That in the event that Order 6 comes into effect, then on settlement of the sale of the [Suburb M] property the proceeds of sale are to be divided in the following manner and priority:
(a)All costs and expenses of sale including legal costs and disbursements, agents' commissions, value of fees and auction expenses (including payment of any such expenses as has been paid by either or both of the parties);
(b)The amounts required to pay all Municipal and water rates adjustments with respect to the [Suburb M] property;
(c)The amounts required to discharge the mortgage on the [Suburb F] home above $430,000;
(d)The amounts required to discharge the mortgage on the [Town S] property; and
(e)The balance then remaining to the husband.
That at the time the husband vacates the [Suburb F] home, the husband must leave in the said home all items which were shipped from the wife's parents in the UK to the wife including but not limited to the following:
(a)box containing:
(i)3 blankets;
(ii)teddy bear;
(iii)old clothes;
(b)box containing table cloth and 12 napkins from …, Italy;
(c)chopping board;
(d)brown trunk containing:
(i)12 soup bowls and saucers;
(ii)2 dinner plates;
(iii)2 jugs, half pint size;
(iv)salt and pepper;
(v)6 dessert bowls;
(vi)gravy boat and saucer;
(vii)crystal sugar shaker;
(viii)crystal vase;
(ix)crystal decanter;
(e)… case containing dinner service serving plate, dinner service serving dish and six dinner plates;
(f)box of letters;
(g)Waterford crystal 7½" vase;
(h)6" Royal Doulton china bowl;
(i)blue trunk containing quilted double king bed cover, sweatshirts, 4 Chinese stitched cushion covers, Chinese tea set for three, 2 single sheets, double bed sheet and valance;
(j)grey trunk containing 12 teacups, 12 saucers, 12 tea plates, 6 dessert bowls, 1 teapot, 2 soup bowls and saucers, 6 dessert bowls, 1 teapot, 2 soup bowls and saucers, 6 dessert plates, 12 coffee cups and saucers, 2 serving dishes with lids;
(k)brown trunk containing railway track, 6 chopsticks, Chinese storage box – camera, 2 hats, blue and white porcelain jug and bowl, backpack 9" x 3", China vase, ladle and large soup terrain, large Darlington crystal vase, crystal cream jug, anti creamer, Italian vase from … and jackset barometer;
(l)2 silver hair brushes, 2 silver hand brushes, 1 silver hand mirror, silver cruet set/teapot;
(m)canteen of cutlery set which includes 6 knives, 6 forks, 6 dessert spoons, 6 soup spoons, 6 fish knives, fish forks, dessert spoons, soup spoons, fish forks, bone handled knives, EPNS spoons and forks, carving knife;
(n)carved wooden rhino, carved wooden recorder, marble horse and chariot, 3 brass horses, one with saddle, tin of letters, old notebook, cast iron scales, railway sleeper box from Zimbabwe, picture of Border terrier, old leather writing case, paintings, oak coffer;
(o)brown suitcase and contents;
(p)Oak dough box inherited by the wife from her great aunt.
(q)box of files and papers on education, sensory geometry, box of 6 photo albums and 2 boxes of photos and box containing folder on music education, 10 books on …/education, Syrian inlaid jewellery box, radio alarms and 2 band tax papers.
That the wife be entitled to the following items situated in the [Suburb F] home which the husband must leave in the [Suburb F] home at the time he vacates the home:
(a)piano and stool;
(b)Indian farmer's dining table;
(c)4 oak dining chairs;
(d)All family photo albums and negatives;
(e)all other photos depicting the wife and/or the children;
(f)children's books purchased by the wife;
(g)3 Indian bookcases;
(h)Royal Doulton tea china;
(i)Royal Doulton tea pot;
(j)2 African paintings;
(k)Ornaments in display cabinet;
(l)children's memento books;
(m)children's boxes of mementos;
(n)all books on architecture;
(o)Chinese side cabinet in living room;
(p)lawnmower, whipper snipper, hedge cutter;
(q)music books;
(r)kids farm sets and animal sets;
(s)outdoor table and chairs;
(t)blue Chinese vase;
(u)pewter water jug;
(v)video cassettes belonging to the wife;
(w)corner display cabinet;
(x)four poster bed;
(y)side tables;
(z)dishwasher;
(aa)Chinese cabinet in bedroom;
(bb)children's books;
(cc)books on Hong Kong by friend in [O Group] [Ms P];
(dd)CD cabinet;
(ee)Burgandy coloured glass rosary beads from [Ms WW]; and
(ff)All documents, personal items or chattels which belong to or personal to the wife.
That the wife be entitled to the following items from [Town S] property which items the husband must make available for collection by the wife or her agents within 14 days from the date of these Orders:
(a)the wife's clothing;
(b)wooden divider;
(c)Shanghai Tang table cloth set;
(d)desk in the upstairs room;
(e)armchair and footstool;
(f)day bed;
(g)Indian birdcage;
(h)camping gear;
(i)family tent;
(j)wardrobe in the children's bedroom;
(k)Japanese wall hanging;
(l)deep freezer;
(m)Large stainless steel refrigerator
(n)Christmas Decorations
(o)Any further documents, personal items or chattels belonging personally to the wife
That other than as is specifically provided for in these Orders the parties are solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these Orders.
That in default of either of the Parties from doing all acts and things and executing all such documents as are necessary to give effect to these Orders within 14 days of an obligation to do so as is set under these orders, and on the Registrar being satisfied of such failure or neglect or default by way of an affidavit evidence only, then a Registrar of the Family Court of Australia at Sydney is hereby appointed pursuant to S.106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders and the party in default shall pay to the other party to this Application that party’s costs and disbursements on an indemnity basis.

Spousal Maintenance

That the husband pay to the wife by way of spouse maintenance the sum of $1,000 per week for a period of 5 years from the date of these Orders.

Department from Child Support

That pursuant to s.117(2)(b)(ii) or s.123/124 of the Child Support (Assessment) Act 1989 there be a departure from the current child support assessment so that in addition to the current assessment (or any future child support assessments issued in respect of the children), the husband pay by way of non-periodic child support the following until each of the children complete their HSC:
(a)The children’s school fees and all incidental expenses that can be placed on the school’s account in relation to the children’s, [L] and [D’s] attendance at [School Q] (and [E’s] school fees and all incidentals once he commences at [School Q] from Year 5) and the child, [H], attendance at [School I] or such other school the children may attend from time to time as agreed between the parties of similar standing as the schools referred to herein;
(b)The children’s text books, uniforms (including winter uniforms, summer uniforms and sport uniforms) in relation to each of the children’s attendance at their respective schools.
(c)All extra curriculum activities costs in relation to the children;
(d)The children’s mobile telephone accounts;
(e)All orthodontic expenses in relation to the orthodontic treatment that the children undertakes;
(f)all medical, dental, optical gap payments in relation to each of the children;
(g)Maintain the children in the Family Medibank Private Health cover with top extra cover.

Costs

That the husband pay the wife’s costs of and incidental to these proceedings.

SCHEDULE 2

That within 28 days the wife shall do all acts and things and sign all documents necessary to transfer to the husband all of her right title and interest in the property known as and situate at [C Street, Town S] being the whole of the property contained in Certificate of Title Folio Identifier … ("the [Town S] property").
Simultaneously with Order 2 above the parties shall do all acts and things and sign all documents necessary to discharge the mortgage secured on the [Town S] Property, being mortgage number … .
That within 28 days the husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his interest in the property known as and situate at [B Street, Suburb M] being the whole of the property contained in Certificate of Title Folio Identifier … ("the [Suburb M] property").

In the alternative to Order 3, at the election of the wife, the parties shall do all acts and things and sign all documents necessary to cause the [Suburb M] property to be sold by private treaty at earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of New South Wales or his nominee and that the proceeds of the said sale be disbursed as follows:
(a)in payment of all legal costs and disbursements, commissions, costs of valuations, and expenses of sale;
(b)in payment and adjustment of all outstanding council and water rates and other utilities; and
(c)the net balance to be paid to the wife.
That in the event that clause 4 applies but that the [Suburb M] property fails to be sold by private treaty within a period of three (3) months hereof at a listing price of $430,000, then each party take all necessary steps and execute all necessary documents to cause the said property to be sold by auction at the earliest possible date at a reserve to be agreed upon between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or his nominee and that the proceeds of the said sale be disbursed in accordance with Order 4(a) to (c) above.
That until the sale of the [Suburb M] property both parties meet the costs of the regular instalments in respect of the mortgage, council rates and water rates in respect of the property as and when they fall due as presently occurs.
That within 28 days the parties shall do all acts and things and sign all documents, including but not limited to giving instructions, necessary to cause the sale of all of sell parties shares in [W Pty Ltd] ("the shares") at the best price reasonably obtainable and in particular:
(a)Shall engage a broker for the purposes of the sale as agreed or in default of agreement a suitably qualified broker one which the husband shall provide a list of three named brokers within a period of 14 days and the wife shall select one such broker for the purposes of the sale and in the event that the wife shall fail, refuse or neglect to make a selection within a further 14 days the husband shall select such broker for the purposes of conducting the sale pursuant to these orders (herein after referred to as "the broker")
(b)The broker shall be appointed to offer for sale and negotiate the sale of the shares at no less than $8.669 per share for a period of 3 months unless there is otherwise written agreement between the parties.
(c)At the expiration of the period of 3 months, if the shares remain unsold, the parties shall jointly instruct the broker to offer for sale and negotiate the sale of the shares at the best price reasonably obtainable until all of the shares are sold.
(d)In the event that the broker requires any payment to be made as a consequence of the appointment to sell the shares, each party shall pay such costs in equal proportions.
(e)That upon the sale of the shares, the proceeds shall be paid in the following manner and priority:
(i)In payment to the broker of the costs associated with his/her appointment and the negotiation and conduct of the sale;
(ii)In payment to each of the parties of any monies paid pursuant to order 7(d) above;
(iii)In payment of the balance then remaining to the parties in the following proportions;
A. To the husband 60%
B. To the wife 40%
That in the event that the court declines to make order 7 above, the husband and wife do all such acts and things necessary including but not limited to executing documents to cause the shares to be transferred to them individually such that as a consequence of the transfers the parties hold:
A. As to the husband, 38,339 shares
B. As to the wife 38,338 shares
That within 28 days the parties shall do all acts and things and sign all necessary to transfer to the Husband all of the Wife's shares in the [XX] entity and all contact details for any bank or similar accounts associated with that entity.
That within 28 days the parties shall do all acts and things and sign all documents necessary to transfer into the Husband's sole name the family's safety deposit box and the wife to provide the key.
That within 14 days the parties shall do all acts and things and sign all documents necessary to cause the balance of the funds held in Commonwealth Bank controlled monies account number …546 to be paid to the wife.
That within 42 days, the husband pay to the wife the sum of $83,000 and;
(a)In the event that he shall fail, refuse or neglect to pay such sum by the due date, he shall cause the sale of the [Town S] property at the best price reasonably obtainable with the net proceeds of sale paid as follows:
(i)       In payment of the normal legal and sale costs of the property
(ii)      In payment of the mortgage secured on the property
(iii)In payment of the wife an amount that would result in the wife receiving no greater than 45% of the net assets.
That within 14 days the parties do all acts and things and sign all documents necessary to pay to the husband the balance of the following accounts and thereafter close such accounts:
(a)Commonwealth Bank Complete Access (joint) account number …931;
(b)HSBC Hong Kong Advance Current (joint) account number …001;
(c)HSBC Hong Kong Advance Savings (joint) account number …833;
(d)         Citibank Cash Management (joint) account number …090;
(e)         Citibank Investment account (joint) account number …275;
(f)         HSBC Day to Day UK (joint) account number …161;
(g)         HSBC High Interest Savings (joint) account number …236;
(h)Citibank Hong Kong Checking (joint) account number …799; and
(i)Citibank Hong Kong Savings (joint) account number …211.
The husband shall be declared solely entitled to the exclusion of the wife to the following:
(a)The property known as and situate at [T Street, Suburb F] being the whole of the land contained in Certificate of Title Folio Identifier … ("the [Suburb F] property”).
(b)The accumulated balance of all of his superannuation funds, including but not limited to his interests with [Company PP] and [G Company];
(c) The Mitsubishi … motor vehicle registration number …;
(d)The Honda … motorbike registration number …;
(e)The husband's [G Company] shares;
(f)The husband's [W] Pty Ltd shares;
(g)The two dogs currently in his possession, namely [YY] and [ZZ];
(h)All of the farm machinery currently located at the [Town S] property;
(i)All other items of furniture and personalty presently in his possession and control, including but not limited to, money, paintings, jewellery, entitlements, proceeds of bank accounts, personal effects and all current contents of the [Suburb F] and [Town S] properties.
The wife shall be declared solely entitled to the exclusion of the husband to the following:
(a)The accumulated balance of all of her superannuation funds, including but not   limited to her interests with Allied Dunbar and MPF:
(b)         The family's Citroen … motor vehicle:
(c)         The wife's premium bonds in the United Kingdom;
(d)All other items of furniture and personalty presently in her possession and control, including but not limited to, money, paintings, jewellery, entitlements, and personal effects.
That except as provided herein, the husband and wife each be entitled solely, to the exclusion of the other, to such pension benefits, and other entitlements including but not limited to annuity entitlements, as at the date of these Orders and to which they are or might become entitled to their own right.
That unless otherwise specified in these Orders and without limiting these Orders:
(a)Each party be responsible for their own debts in their own names or in the name of any entity in which they have an interest including but not limited to credit cards; and
(b)Each party be solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
That all life insurance policies are the sole property of the beneficiary named therein and each party may maintain or discontinue their policies at their own personal cost or benefit.
That within 28 days both parties shall do all acts and things necessary to close the [Company EE] entity and any and/or all bank accounts or similar accounts associated with that entity, not limited to the [K Sports] Club debenture, and that any value or liabilities remaining in that entity shall be distributed equally between each of the parties.
That within 28 days both parties shall do all acts and things necessary to transfer and close all funds held in bank or similar accounts in Australia or outside the Commonwealth of Australia, whether solely or jointly the four children's names or on their behalf (including but not limited to the premium bonds held for them), into Commonwealth Bank Accounts in Australia that the husband has established on the four children's behalf.
That the parties shall do all acts and things and sign all documents necessary to give effect to these Orders.
That in the event either party refuses or neglects to sign any deed or instrument to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 to sign such document on behalf of such party to give effect to the operation of the deed or instrument.
That the wife pay the husband's costs of and incidental to these proceedings.

SCHEDULE 3

Wife

The applicant wife relies on the following:

Amended Initiating Application filed 10 December 2012
Wife’s affidavit sworn 2 August 2013
Wife’s affidavit sworn 7 May 2013
Wife’s affidavit sworn 6 August 2012
Wife’s affidavit sworn 31 May 2012
Wife’s affidavit sworn 11 May 2012
Wife’s affidavit sworn 13 December 2011
Affidavit of Mr VV Garner sworn 31 July 2013
Wife’s financial statement filed 7 May 2013

Husband

The respondent husband sought leave during the hearing to rely on an affidavit and financial statement. These documents were filed in court on 25 November 2013 and sworn the same day. The husband did not rely on any document he had previously filed.
The husband also sought leave for an extension of time to ask Ms KK written questions. That leave was refused for reasons set out above.
The parties also relied on the following expert evidence:
a.Expert report by Ms KK filed 13 November 2013
b.Expert report by Mr UU dated 22 March 2013
c.Expert report by Mr A dated 14 May 2013

[2015] FamCA 29

27 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Costs