GIBSON & BOOTHMAN

[2016] FamCA 695

FAMILY COURT OF AUSTRALIA

GIBSON & BOOTHMAN [2016] FamCA 695

FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were married for approximately fourteen years and have two children – Where the parties were in agreement that the former matrimonial home should be sold – Where the husband made significant direct financial contributions by way of his high income and introduction of unencumbered property into the marriage  – Where the husband’s mother made substantial direct financial contributions on his behalf by way of gifts and distributions  – Where the wife assumed responsibility for the parties’ children and made non-financial contributions to the parties’ properties – Where the Court finds the parties’ contributions should be assessed at sixty per cent to the husband and forty per cent to the wife – Where the Court finds section 75(2) factors favour an adjustment of five per cent to the wife due to the disparity between the parties’ income earning capacities – Where it is appropriate to make a superannuation splitting order in favour of the wife – Orders made.

Family Law Act 1975 (Cth) ss 75(2), 79

Mallet v Mallet (1984) 156 CLR 605
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Mr Gibson

RESPONDENT: Ms Boothman

FILE NUMBER: SYC 1681 of 2014

DATE DELIVERED: 19 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 27 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: John R Quinn & Co.

Orders

1. Within twenty-eight (28) days from the date of these Orders the parties do all acts and things and sign all documents necessary to list for sale and sell the property at B Street, Suburb C ("the Suburb C property") for the best price reasonably obtainable, in the following manner except as otherwise agreed between the parties in writing:

   (a)within fourteen (14) days the parties will appoint an agent as agreed in writing, and in default of agreement as to agent within twenty-one (21) days as appointed by the President for the time being of the Real Estate Institute of NSW (or his or her nominee) (“the agent”), to list for sale and sell the home by auction, the costs of such appointment and any costs of the President for the time being of the Real Estate Institute of NSW (or his or her nominee) to be paid by the parties in equal shares as and when such become due and payable;

   (b)the reserve price for the purpose of such auction will be as agreed by the parties in writing or in the absence of agreement reached by fourteen (14) days prior to the date of the auction, as nominated as the fair market value thereof by a valuer appointed by the President for the time being of the NSW Division of the Australian Property Institute (Inc) Incorporated (or his/her nominee) (“the valuer”) and the costs of the President for the time being of the NSW Division of the Australian Property Institute (Inc) Incorporated (or his/her nominee) to be paid by the parties in equal shares when such become due and payable;

   (c)in the event the bidding at the auction does not reach the reserve price the parties or such of them as attends the auction (whether in person, by telephone, or by their nominee) is entitled to negotiate with the highest bidders or any other interested person at the auction and effect a sale of the property at such price as the parties agree upon in writing and in default of agreement by the date of the auction at a price which is not less than 5 per cent below the reserve price;

   (d)in the event that the home remains unsold the parties will do all acts and things and sign all documents necessary to immediately list the home for sale by public auction again on a date to be nominated by the agent and at such auction the reserve price will be 5 per cent lower than the previous auction or such other amount as agreed between the parties in writing;

   (e)the parties will instruct such solicitor as they agree in writing to have the conduct of the sale or, in the absence of agreement reached on or before the date fourteen (14) days from the date of these Orders the parties will instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales or his or her nominee (“the solicitor”); and

   (f)for the purposes of Order 1(e) above, the costs of the President for the time being of the Law Society of New South Wales (or his or her nominee) will be paid by the parties in equal shares when such become due and payable.

2. That upon settlement of the sale of the Suburb C property, the husband and the wife will forthwith cause the proceeds of sale be applied as follows:

   (a)to meet the costs and expenses of the sale including legal fees of the conveyance and real estate agent fees and commissions;

   (b)to discharge the NAB mortgage, account number ##...;

   (c)to distribute the balance such that the husband and the wife each receive and/or retain, taking into account the other assets held by each of them the following share of the net property:

   (i)55 per cent to the husband; and

   (ii)45 per cent to the wife.

3. That pending the settlement of the sale of the Suburb C property:

   (a)the husband has exclusive occupation; and

   (b)the husband will pay as and when such fall due the council and water rates in relation to the home.

Superannuation splitting order

1. That Orders (5) and (6) have effect from the operative time.

2. The operative time for Orders (5) and (6) is four (4) days from the date of service of a certified copy of the Orders on the trustee of Australian Super Fund.

3. In accordance with s 90MT of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of s 90ME of the Family Law Act 1975 (Cth) becomes payable by the husband from his interest in Australian Super member number …, the wife is entitled to a base amount in the sum of $248,609 (“base amount”) and there is a corresponding reduction in the entitlement the husband would be entitled to receive but for this Order.

4. Procedural fairness having been accorded in relation to the making of this Order, this Order binds the trustee of Australian Super.

5. Other than is specifically provided for in these Orders to the contrary, each party is solely entitled to all other property and superannuation whatsoever nature in his or her possession or control as at the date of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1681  of 2014

Mr Gibson

Applicant

And

Ms Boothman

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Gibson (“the husband”) and Ms Boothman (“the wife”) are engaged in litigation concerning alteration of property interests.  The proceedings were commenced by the husband’s Initiating Application filed on 21 March 2014.  By a Minute annexed to an Outline of Case Document filed on his behalf the husband sought the following orders:

   1.That within 28 days from the date of the making of these Orders the parties do all acts and things and sign all documents necessary to list for sale and sell the property at [B Street, Suburb C] ("the home") for the best price reasonably obtainable, as set out in the following manner except as otherwise agreed between the parties in writing:

   1.1The parties forthwith do all acts and things on or before the date 14 days from the date of the making of these Orders to appoint an agent as agreed between the parties in writing, and in default of agreement as to agent within 21 days from the date of the making of these Orders, with such agent as appointed by the President of the Real Estate Institute of NSW (or his or her nominee) (“the agent”), to list for sale and sell the home by auction, the costs of such appointment and any costs of the President for the time being of the Real Estate Institute of NSW (or his or her nominee) to be paid by the parties in equal shares as and when they become due and payable;

   1.2The reserve price for the purpose of such auction shall be such price as mutually agreed upon by the parties in writing or in the absence of agreement reached by 14 days prior to the date of the auction, such reserve price be as nominated as the fair market value thereof by a valuer appointed by the President for the time being of the NSW Division of the Australian Property Institute (Inc) Incorporated (or his/her nominee) (“the valuer”) and the costs of the President for the time being of the NSW Division of the Australian Property Institute (Inc) Incorporated (or his/her nominee) to be paid by the parties in equal shares when they become due and payable;

   1.3the parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):

   1.3.1allowing inspection of the home at all reasonable times requested by the agent;

   1.3.2doing or saying nothing to hinder or prevent a sale being effected;

   1.3.3signing all documents requested by the agent in relation to the listing for sale of the home except a contract or agreement for sale which has not been authorised by the parties; and

   1.3.4executing the contract for sale in the form prepared by the solicitor attending to the sale on behalf of the parties, at the sale price; and

   1.3.5neither party conferring on the agent or solicitor attending to the sale on behalf of the parties without the written consent of the other party, any right to sole or exclusive agency in respect of the home or to any commission.

   1.4in the event the bidding at the auction does not reach the reserve price the parties or such of them as attends the auction (whether in person, by telephone, or by their nominee) be entitled to negotiate with the highest bidders or any other interested person at the auction and effect a sale of the home at such price as the parties agree upon in writing and in default of agreement by the date of the auction at a price which is not less than 5 per cent below the reserve price;

   1.5in the event that the home remains unsold the parties do all acts and things and sign all documents necessary to immediately list the home for sale by public auction again on a date to be nominated by the agent and at such auction the reserve price be 5 per cent lower than the auction immediately preceding it, or such other amount as agreed between the parties in writing;

   1.6the parties shall instruct such solicitor as they agree upon in writing to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached on or before the date 14 days from the date of the making of these Orders the parties instruct such solicitor as may be appointed by the President for the time being of the Law Society of New South Wales or his or her nominee (“the solicitor”);

   1.7for the purposes of Order 1.6 above, the costs of the President for the time being of the Law Society of New South Wales (or his or her nominee) in facilitating that order the cost be paid by the parties in equal shares when they become due and payable.

   2.That upon settlement of the sale of the home, the husband and the wife forthwith cause the proceeds of sale be applied as follows:

   2.1To meet the costs and expenses of the sale including legal fees of the conveyance and real estate agent fees and commissions;

   2.2The usual adjustments as between vendor and purchaser;

   2.3To discharge the NAB mortgage, account number #...;

   2.4That the balance be divided such that the husband and the wife each receive and/or retain, taking into account the other assets held by them under the settlement and the interim property settlements, the following share of the net property:

   2.4.1    62.5 per cent to the husband;

   2.4.2    32.5 per cent to the wife.

   3.That pending the settlement of the sale of the home:

   3.1The husband has exclusive occupation of the home to the exclusion of the wife; and

   3.2The husband pay as and when they fall due the council and water rates in relation to the home.

   4.That except as any paragraph of these Orders provide to the contrary, as against the wife, the husband be solely entitled to and the wife has no interest in:

   4.1NAB iSaver account #;

   4.2NAB account #;

   4.3HSBC (UK) account #;

   4.4NIB shares;

   4.5Motor vehicle 1;

   4.6Household items, jewellery and watches as listed in Annexure “A”;

   4.7The husband’s interest (if any) as amongst the class of eligible beneficiaries of the [Mr Gibson Trust] and the [D Trust];

   4.8Property settlement paid by way of interim costs of $100,000 to the husband pursuant to Orders made 29 September 2014 by Justice Aldridge;

   4.9The balance of the husband’s entitlement in the Australian Super Fund being member number … that is not the subject of the superannuation splitting Order set out below. 

   4.10All other property and financial resources in the possession or control of the husband as at the date of the making of these Orders.

   5.That except as any paragraph of these Orders provides to the contrary, as against the husband, the wife is solely entitled to and the husband has no interest in:

   5.1Any bank account held in her sole name including but not limited to NAB account #... and NAB account #...;

   5.2The motor vehicle 2;

   5.3Household items, jewellery and watches as listed in Annexure “B”;

   5.4Household items owned before cohabitation.

   5.5Any entitlement of the wife in any superannuation fund;

   5.6Property settlement to the wife of $207,090 pursuant to Orders made by Justice Aldridge on 29 September 2014;

   5.7Property settlement paid by way of interim costs to the wife of $146,917 pursuant to Orders made by Justice Aldridge on 29 September 2014;

   5.8All other property and financial resources in the possession or control of the wife as at the date of the making of these Orders;

   5.9Any other interim property settlement paid to the wife pursuant to order of the Court. 

   6.That the funds held in the joint NAB accounts, being NAB term deposit #... and #..., be divided between the parties in the proportions set out hereunder, and each of the husband and wife forthwith do all acts and things and sign all documents necessary to give effect to a distribution of them being:

   6.1To the husband, such amount that having regard to the balance of the property received and/or retained by him under these Orders, the husband receives 70 65 per cent of the net property of the parties;

   6.2To the wife, such amount that having regard to the balance of the property received and/or retained by her under these Orders, the wife receives 30 35 per cent of the net property of the parties.

   Superannuation splitting order

   7.That Orders 8 and 9 have effect from the operative time.

   8.The operative time for Orders 8-9 is 4 days from the date of service of a certified copy of the Orders on the trustee of Australian Super Fund. 

   9.That in accordance with s90MT of the Family Law Act, whenever a splittable payment within the meaning of s90ME of the Family Law Act becomes payable by the husband from his interest in Australian Super member number 702075822, the wife is entitled to a base amount in the sum of $248,609 (“base amount”) and there is a corresponding reduction in the entitlement the husband would be entitled to receive but for this Order.

   10.That having been accorded procedural fairness in relation to the making of this Order, this Order binds the trustee of Australian Super.

   Other Orders

   11.Other than is specifically provided for in these Orders to the contrary, each party is solely entitled to the exclusion of the other to all other property (including superannuation) and financial resources of whatsoever nature and kind in the possession or control of each such party as at the date of the making of these Orders.

   12.That except as any paragraph of these Orders provides to the contrary:

   12.1The husband shall indemnify any keep indemnified the wife in respect of any and all liability in respect of any liability in the husband’s name;

   12.2The wife shall indemnify and keep indemnified the husband in respect of any and all liability in respect of any liability in the wife’s name.

   13.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the court be appointed pursuant to Section 106A of the Act to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.

2. By a Minute annexed to an Outline of Case Document filed on her behalf, the wife sought the following orders:

   1.That with exception of the matrimonial home located at and known as [B Street, Suburb C], the Wife be declared the beneficial owner of all those assets currently standing to her name, or to her credit, already released to her consistent with Orders of this Court, including her interest in superannuation.

   2.That upon a determination of the respective assets of the parties, excluding their interest in the matrimonial home, the parties do all things and acts as are necessary to cause the matrimonial home to be sold by way of public auction, and in that regard:

   (a)Provide instructions to [insert name of Real Estate Agent] (“the agent”) to list the property for sale by way of public auction and to do all things necessary to cause that to occur;

   (b)Give written instructions to John R Quinn & Co, Lawyers, for the preparation of a Contract for Sale in conjunction with Barkus Doolan, Lawyers, and to make a copy of such contract available to the parties and to the agent;

   (c)To do all things and acts as are necessary to have the property open for inspection at times suggested by the agent, and to have the property in a neat and tidy condition at all times to enable such inspections to take place;

   (d)To agree upon a reserve price seven (7) days prior to the proposed date for auction, and in the absence of agreement, instruct the President of the Real Estate Institute of NSW to appoint an agent for the purpose of determining such reserve;

   (e)To attend upon the auction and to execute a contract in the event of the property being sold under the hammer, or to otherwise remain at the auction to negotiate with the highest bidder and to sell the property for a price less than the reserve price if agreed between the parties;

   (f)To execute a Contract for Sale and to otherwise progress the sale to conclusion.

   3.Upon completion of the sale of the matrimonial home, the net proceeds of sale which should be defined as the balance remaining after payment of agent’s commission, solicitors’ fees, sale costs and discharge of any mortgage, be divided so as to provide for a division of the parties’ assets on an equal basis having regard to those assets declared to be theirs consistent with the Court’s ruling.

Background

1. The husband and the wife, who are aged 51 and 53 respectively, commenced cohabitation in June 1995.  They married in 1999 and separated under one roof in January 2013.  The wife vacated the former matrimonial home on 26 November 2014 and moved into rented accommodation with the parties’ two children.

2. The parties’ children are E, who was born in 1999, and F who was born in 2001.  Between December 2014 and March 2015 the children lived with each parent on a week-about basis.  At that point, F elected not to live with the husband.  She resumed living with the husband as well as the wife in May 2015.  E has continued with the week-about arrangement at all times since December 2014.

3. The husband is a highly skilled professional.  He holds bachelor’s degrees in science and arts, which were conferred in 1986 and 1988 respectively.  He obtained a graduate diploma in 1995 and a doctorate of philosophy in 1999.  The husband is currently undertaking a juris doctor degree, which he expects to complete at the end of 2016.  Until 13 May 2016 the husband worked at Company G for one day per week.

4. The wife is also a professional, who holds a bachelor of arts and a post graduate diploma.  She last worked, on a part-time basis, in July 2009.  Between September 2012 and November 2012 the wife worked at H Organisation on a full-time basis.

5. From December 2012 until September 2014 the wife held a part-time position at I Pty Ltd.  In February 2015 she commenced TAFE courses.  In April 2015 the wife secured part-time employment on a shift-work basis at the J Centre in Suburb K.  In October 2015 she began part-time employment at L Hospital.

6. In May 1989 the husband and a former de facto partner purchased the property M Street, Suburb N for $230,000.  On the breakdown of this relationship in approximately 1991, the husband paid a lump sum to his former partner and became the sole registered proprietor of the property.

7. Following this settlement, the husband refinanced the mortgage on the Suburb N property.  In early 1994 he paid out the mortgage debt, using funds which he obtained from a redundancy payment and an inheritance from his father.

8. At the commencement of cohabitation the husband owned the following assets:

   ·unencumbered property at M Street, Suburb N;

   ·bank savings of approximately $40,000;

   ·Motor vehicle 1;

   ·Motorcycle; and

   ·superannuation benefit of $14,993.

   The husband’s unchallenged evidence was that he had “no material liabilities” at the commencement of cohabitation.

9. When the parties began to live together the husband was studying for his doctorate degree, which he completed in 1999.  He worked for approximately two days per week and as a consultant while he completed his doctorate.

10. At the commencement of cohabitation the wife owned a car, furniture, household effects and had a modest amount of savings.  She may have had a credit card debt.  She was employed by Company DD.

11. In 1999 the husband began employment at Company O.  He remained in this position until he was retrenched during the global financial crisis in 2008.

12. Until December 1998 the wife worked at the law firm P Lawyers.  From that point the wife stayed out of the paid workforce until April 2008, when she began employment for two days per week at Q Lawyers.

13. In May 2000 the husband sold the Suburb N property for $444,000.  The sale proceeds were contributed to the purchase price of a property at R Street, Suburb S.  The parties purchased the Suburb S property as joint tenants for a price of $865,000 in May 2000.

14. In September 2005 the parties sold the Suburb S property for $1,280,000.  They injected the whole of the net sale proceeds into the purchase of the property B Street, Suburb C for a price of $2,315,000.  The balance of the purchase money came from National Australia Bank borrowings.

15. During the marriage the husband received gifts of money from his mother and distributions from an associated Trust.  He received $250,000 from his mother on 17 May 2006, which he applied to reduce the mortgage debt on the Suburb C property.  On 28 May 2007 the husband’s mother advanced to him a sum of $125,000, which was used to discharge the mortgage on the Suburb C property.  On 14 April 2008 the husband received from his mother a sum of $125,000, which he placed in interest-bearing deposits in the joint names of the parties.

16. The husband received advances in sums ranging between $4,000 to $5,500 each year from his mother and/or her corporate entities.  By reference to his income tax returns, the husband could identify payments of $5,476, $5,570, $5,503, $5,359 and $5,421 in the years 2011 to 2015.

17. In December 2008 the husband received a net redundancy payment of $303,634 from Company O.  These funds were lodged into the parties’ joint term deposit accounts.

18. Between January 2009 and September 2011 the husband was employed by Company T on a salary of $229,000 per annum, plus superannuation.  He then worked at Company U until 2013, on a salary of $280,000 per annum plus superannuation.  Early in February 2013 the husband began to work for one day per week at Company G, on an annual salary of $36,600.  At this time he commenced his juris doctor course at the University of New South Wales.

19. On 1 August 2014 the wife sold shares in David Jones Ltd for $14,656.  She contended that she used these funds to pay various credit card debts and meet living expenses.  There was no evidence to the contrary.

20. In September 2014 the husband sold Company O shares for $114,784.  He used this money and his savings to prepay V School school fees of $123,800 for 2016 and 2017.  The wife did not consent to this arrangement.

21. On 29 September 2014 orders were made which provided that each of the parties receive payments from their term deposits by way of interim property settlement and costs.  The wife received amounts of $207,090 as “interim property settlement” and $146,917 by way of “preliminary and interim costs”.  The husband received a sum of $100,000 by way of “preliminary and interim costs”.

The evidence and witnesses

1. The applicant husband relied on his affidavit of 21 April 2016 and Financial Statement of 8 April 2016.  The respondent wife relied on her affidavit of 8 April 2016 and Financial Statement of the same date.  Both parties gave relatively brief oral evidence by way of cross-examination.

2. A single expert, Mr W, prepared a report dated April 2016 in relation to “job opportunities and remuneration levels” in relation to the husband.  After certain passages were excluded from this report by consent, Mr W was not required for cross-examination.

Approach to these proceedings

1. In Stanford v Stanford (2012) 247 CLR 108 the majority of the High Court of Australia held as follows at [35]:

   It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.  Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this section.  The requirements of the two sub-sections are not to be conflated.  In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. Their Honours further observed as follows at [42]:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.  No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.

   That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.  And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end.  Hence it will be just and equitable that the court make a property settlement order.  What order, if any, should then be made is determined by applying s 79(4).

3. The parties’ relationship broke down finally in January 2013 and they have lived in separate accommodation since November 2014.  They have ceased intermingling of their finances and wish to put an end to their economic relationship.  The former matrimonial home, which is their major asset, is held in the joint names of the parties.  They each wish to sell this property but hold differing views as to the distribution between them of the net proceeds of sale.  In these circumstances, I am satisfied that it is just and equitable that there be orders for alteration of property interests between the parties.  The application of section 79 will determine what orders should be made for alteration of property interests.

4. It is first necessary to determine the assets, liabilities and financial resources of the parties.  All relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4), must be identified and weighed against each other.  The matters set out in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2), must be considered and a determination made as to what if any alteration should be made to the entitlements of the parties as earlier assessed on account of contribution.

The assets, superannuation, liabilities, financial resources

1. On the day after the conclusion of the trial, the legal representatives of the parties provided a joint balance sheet in the following terms:

ASSETS
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
1	J	B Street, Suburb C (The husband and wife agree this property is to be sold)				3,500,000	3,000,000
2	W	NAB Term Deposit (#...)				15,945	15,945
3	W	NAB Term Deposit (#...)				42,831	42,831
4	H	NAB iSaver Account (#...) @ 23 June 2016				85,772	85,965
5	H	NAB Account (#...) @ 23 June 2016				352	3,734
6	H	HSBC (UK) Account (#...) [GBP 5.51] @ 23 June 2016				11	11
7	J	NAB Account (#...)				0	0
8	W	NAB Account (#...)				171	171
9	W	NAB Account (#...)				0	NK
10	W	Macquarie Cash Management Account (#...)				403	403
11	W	CBA Netbank (#...)				0	NK
12	H	1000 NIB shares @ $4.35 @ 23 June 2016				3,840	4,350
13	H	Motor vehicle 1				10,100	10,100
14	W	Motor vehicle 2				6,300	6,300
15	H	Contents of home				27,660	27,410
16	W	Contents of home				4,245	4,595
17	W	Jewellery				3,000	3,000
18	H	Jewellery				300	300
19	H	Amount payable to the husband from the beneficiary account in his name in the Mr Gibson Trust.				38,615	38,615
20	H	Interim costs received by the husband pursuant to Order 2 of the Orders of Justice Aldridge made 29 September 2014.				100,000	100,000
21	W	Interim costs received by the wife pursuant to Order 2 of the Orders of Justice Aldridge made 29 September 2014.				146,917	146,917
22	W	Interim property settlement received by the wife pursuant to Order 1 of the Orders of Justice Aldridge made 29 September 2014				207,090	207,090
23	W	Amount payable to the wife by way of inheritance from the estate of the late Mr X Boothman				14,000	14,000
Total		$        4,207,552	$        3,711,737

OTHER MONIES
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
24	W	NAB Account (#...) (Funds held in trust for children)				1,192	The husband contends the entry should be ignored
25	W	NAB Account (#...) (Funds held in trust for children)				2,289	The husband contends the entry should be ignored
26	H	Tuition fees University				23,369	The husband contends the entry should be ignored
27	H	Prepaid legal fees to 17.10.2014 (includes mediation costs)				44,860	The husband contends the entry should be ignored
28	W	Prepaid legal fees to 17.10.2014 (includes mediation costs)				12,492	The husband contends the entry should be ignored
29	H	School fees prepaid				123,800	The husband contends the entry should be ignored
Total		$           208,002	$  0

LIABILITIES
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
30	J	NAB Mortgage (#...)				4,323	4,343
31	H	NAB Visa (#...)				316	20
32	W	NAB Visa (#...)				2,813	2,813
33	W	American Express Card (#...)				12,800	12,800
34	W	Australian Taxation Office				500	NK
35	J	Sales costs for Suburb C home @ say 2.5 per cent  Note home is to be sold
Total		$            20,752	$            19,976

SUPERANNUATION
Member		Name of Fund			Type of Interest		Wife/de facto partner's value	Husband/de facto partner's value
36	H	Australian Super (#...)			744,314	767,447
37	H	UniSuper (#...) - closed			0	0
38	W	Macquarie ADF Super Account			44,667	44,667
39	W	AMP Eligible rollover fund			4,147	4,147
40	W	BT			633	633
41	W	Kinetic Super			0	NK
42	W	Real Industry Super			0	NK
Total		$           793,761	$           816,894

FINANCIAL RESOURCES
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
43	H	Eligible discretionary beneficiary of the Mr Gibson Trust (which in turn has an interest in Z Pty Ltd )				NIL
44	H	Interest as an assignee (1 of 4) of the income stream derived from the 3,090 ordinary shares in Telstra until 2022 (previously received by Ms AA under the Deed dated 3 May 1957 of Mr BB)				Nominal
45	H	The husband is amongst the class of eligible discretionary beneficiaries of the D Trust				Nominal
Total		$                     0	$                     0

NETT TOTAL ASSETS (including Superannuation) $        5,188,563 $        4,508,655

Notes

In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:

1. Why an item should not be on the balance sheet.
2. Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
3. Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
4. Any other comment a party wishes to make in relation to the disputed item.

Item No
2, 3, 4, 5, 7	H: Internet banking print out for close of business 23 June 2016.
12	H: Share price as of close of business 23 June 2016 from ASX website printout.
16	H; Balance excludes furniture to the value of $4,900 which was purchased from money already dealt with on the Balance Sheet under the interim partial property settlements to the Wife pursuant to the Orders dated 29 September 2014.
20	H: The balance of the $100,000 received by the husband as interim costs held in the Trust Account of Barkus Doolan (as at 31 March 2016) is $52,403 at 30 May 2016.
21	W: The balance of the $146,917 received by the wife as interim costs held in the Trust Account of John R Quinn & Co is $45,682 [to be updated for the trial].
29	H: The amount initially paid for school fees by the husband covers V School school fees until E completes Year 12 (2017) and F completes Year 10 (2016).  The amount currently held in V School trust account as at 27 April 2016 is $92,848.98.  The school requires at least a full term notice for withdraw of the children from the school.  The fees in advance contract further stipulates only 90 per cent of any money is to be paid back in the case of a child ceasing enrolment.
32-33	H: Amount's to be verified with documents by the wife.
38-40	H: Superannuation balances to be updated and verified by documentation for the trial.
36	H: Australian Super website printout for close of business 23 June 2016.

The Assets

1. The parties agreed that they will sell the property B Street, Suburb C.  They agreed further that there is no necessity for a finding as to the value of this property.  By way of indication, the husband and the wife estimated its value to be $3,500,000 and $3,000,000 respectively.

2. The parties also agreed that two National Australia Bank term deposits, with balances of $15,945 and $42,831, would be transferred to the wife immediately as a component of her share of the net assets and superannuation.  Accordingly, the wife is recorded as the owner of these two term deposits in the balance sheet dated 30 June 2016.

3. Initially, the parties were in dispute in relation to the following items in the list of assets:

4.	Husband’s iSaver account …
5.	Husband’s NAB account …
9.	Wife’s NAB account …
11.	Wife’s CBA Netbank account
12.	Husband’s 1,000 NIB shares
15.	Husband’s household contents
16.	Wife’s household contents
24.	NAB account … (funds held in trust for children)  (W)
25.	NAB account … (funds held in trust for children)  (W)
26.	Tuition fees university (H)
27.	Prepaid legal fees to 17 October 2014 (includes mediation costs)  (H)
28.	Prepaid legal fees to 17 October 2014 (includes mediation costs)  (W)
29.	School fees prepaid (H)

In his final submissions, however, counsel for the wife stated that she did not seek to add back the amounts included in the above items 24, 25, 26, 27, 28 and 29.  For reasons which appear below, I agree with this submission and these items will be excluded from the final balance sheet.

1. The notes to the balance sheet indicated that the figure of $3,734 for the balance of the husband’s National Australia Bank account came from an internet printout dated 23 June 2016.  The wife’s figure of $352 was extracted from the husband’s Financial Statement of 8 April 2016.  The notes to the balance sheet indicated further that the husband obtained internet printout balances for the accounts listed as items 2, 3, 4, 5 and 7 in the list of assets.  These figures in relation to items 2, 3 and 7 apparently were accepted by the wife.

2. The husband gained no advantage by proffering a figure of $3,734 rather than $352 in respect of his National Australia Bank account.  I accept that the husband obtained an updated figure for the balance of this account and made a concession as to the larger sum.  I find that the husband’s National Australia Bank account has a balance of $3,734.

3. Similarly, the husband gained no advantage by proffering a figure of $88,965 rather than $85,772 for his NAB iSaver account. The latter figure was that contained in his Financial Statement of 8 April 2016. I obtained an updated amount, as at 23 June 2016, and conceded the greater balance of $85,965.

4. I will exclude from the list of assets a joint National Australia Bank account with a nil balance.  Similarly I see no purpose in the inclusion of the wife’s CBA account, to which she attributed a nil balance and the husband entered “NK”.

1. The husband and the wife attributed values of $4,350 and $3,840 respectively to his 1,000 NIB shares.  The wife’s figure of $3,840 came from the husband’s Financial Statement of 8 April 2016.  The notes to the balance sheet indicated that the husband obtained the figure of $4,350 from an ASX website printout as at 23 June 2016.  Again, the husband effectively updated the value in his Financial Statement and conceded a higher amount.  I find that the husband’s NIB shares have a value of $4,350.

2. The husband and the wife attributed values of $27,410 and $27,660 respectively to the contents of the former matrimonial home.  They both attributed ownership of these items to the husband.  They attributed ownership of the contents of her rented premises to the wife and they placed values respectively of $4,595 and $4,245 to these items.

3. Mr CC carried a valuation of these items and prepared a report dated 14 April 2016.  The Outline of Case documents filed on behalf of each of the parties, however, omitted the affidavit of Mr CC from the list of documents upon which they relied for the purposes of the trial.  Accordingly, I can have no regard to the evidence of Mr CC.

4. I had no submissions as to the basis of the parties’ respective assertions concerning the value of their household contents.  It seems to me that the best I can do is to treat the parties’ contentions as to the value of the items under their respective ownership as admissions against interest.  On that basis, I find that the household contents owned by the husband and the wife are respectively valued at $27,410 and $4,245.

5. I was taken to no evidence in relation to items 24 and 25 in the balance sheet, being two NAB accounts described as “funds held in trust for children”.  I am unaware of the source of these funds, nor the purpose for which the parties chose to establish these accounts.  As noted, the wife abandoned her contention that these two accounts should be included in the list of assets.

6. The wife also abandoned her contention that the husband’s paid university fees of $23,369 should be included in the list of assets.  It seems to me that the husband properly expended this money with the intention and hope of enhancing his employment prospects.

7. The wife also conceded that amounts of $44,860 and $12,492, being described as “prepaid legal fees to 17.10.14” should not be included in the list of assets.  This concession was properly made and these amounts will be excluded from the balance sheet.

8. The wife ultimately abandoned her contention that prepaid school fees of $123,800 should be included as an asset in the balance sheet.  The husband made this payment from savings and the proceeds of sale of his Company O shares in 2014.  The wife had informed the husband in an email dated 18 August 2014 that she did not consent to prepayment of the children’s school fees for two years.

9. Both of the parties’ children have attended V School since the start of their formal education and they are now in Years 11 and 9.  On that basis I infer that the parties had and maintain a common intention that their children receive private school education.  The husband’s prepayment means that E’s fees are paid in full until the end of her secondary education and those of F until she completes Year 10 in 2017.  In final submissions, it was indicated that the husband is prepared to give an undertaking that he will pay F’s school fees for Years 11 and 12.

10. The husband received no personal benefit from this prepayment and gave unchallenged evidence that the arrangement resulted in a saving to the parties of approximately $12,000.  Further, the husband gave unchallenged evidence that the parties prepaid school fees in the years 2004 to 2015 inclusive from capital.  In these circumstances, I agree that the sum of $123,800 should not be included in the list of assets.

Liabilities

1. The disputed liabilities were items 31 and 34 in the balance sheet.  The husband and the wife contended respectively that his Visa Card debt amounted to $20 and $316.  I had no evidence or submissions in relation to the husband’s Visa Card debt and no indication in the notes to the balance sheet that he had updated this figure by way of an internet printout.  The figure of $316 was that to which the husband deposed in his Financial Statement of 8 April 2016.  On that basis I find that the husband has a Visa Card debt of $316.

2. Similarly I had no evidence or submissions in relation to the alleged tax debt of the wife “$500”.  That figure was included as a liability in her Financial Statement of 8 April 2016.  It was open to the wife to obtain an ATO document which set out any current debt with precision.  In these circumstances, I am not prepared to include this item as a liability in the balance sheet.

Superannuation

1. There was no dispute as to the superannuation balances of the parties’ various funds other than the husband’s Australian Super benefit.  The husband contended that the value of this fund as at 23 June 2016 was $767,447, which came from an internet printout of that date.  The wife inserted into the balance sheet a figure of $744,314, which was the value to which the husband deposed in his Financial Statement of 8 April 2016.  Again, I accept that the husband effectively updated the figure of $744,314 in his Financial Statement and conceded a larger sum of $767,447.  I find that the husband’s Australian Super benefit has a value of $767,447.

2. I will exclude from the balance sheet the wife’s benefits with Kinetic Super and Real Industry Super, to which she attributed nil balances and the husband offered only “NK”.  I will also exclude the husband’s UniSuper benefit with an agreed nil value.

Financial resources

1. The balance sheet indicated that the husband is a discretionary beneficiary of two trusts and that he has an interest in “income stream derived from 3090 ordinary shares in Telstra until 2022 (previously received by [Ms AA] Gibson under the deed dated 3 May 1957 of [Mr BB])”.  There was no evidence in relation to these potential benefits to the husband, which I can take no further on the material made available at trial.  For convenience and simplicity, I will exclude items 43, 44 and 45 from the final balance sheet.

2. I thus find that the assets, superannuation and liabilities of the parties are as follows, noting that the initials “J”, “H” and “W” constitute determinations of ownership of or legal responsibility for assets, superannuation and liabilities by the parties jointly or the husband or the wife:

Assets		($)
1.	B Street, Suburb C (J) (parties will effect a sale of this property)
2.	NAB term deposit … (W)	15,945
3.	NAB term deposit … (W)	42,831
4.	NAB iSaver account … (H)	85,965
5.	NAB account … (H)	3,734
6.	HSBC account … (H)	11
7.	NAB account … (W)	171
8.	Macquarie Cash Management Account (W)	403
9.	1,000 NIB shares (H)	4,350
10.	Motor vehicle 1 (H)	10,100
11.	Motor vehicle 2 (W)	6,300
12.	Household contents (H)	27,410
13.	Household contents (W)	4,245
14.	Jewellery (W)	3,000
15.	Jewellery (H)	300
16.	Amount payable from Mr Gibson Trust to husband (H)	38,615
17.	Interim costs received by husband pursuant to orders of 29 September 2014 (H)	100,000
18.	Interim costs received by wife pursuant to order of 29 September 2014 (W)	146,917
19.	Interim property settlement received by wife pursuant to orders of 29 September 2014 (W)	207,090
20.	Inheritance payable to wife from the estate of the late Mr X Boothman (W)	14,000
Superannuation
21.	Australian Super (H)	767,447
22.	Macquarie ADF Super account (W)	44,667
23.	AMP Eligible Rollover (W)	4,147
24.	BT (W)	633
Liabilities		($)
25.	NAB mortgage (J)	4,343
26.	NAB Visa Card (H)	316
27.	NAB Visa Card (W)	2,813
28.	American Express (W)	12,800

Contributions

1. At the commencement of cohabitation in 1995 the husband owned the unencumbered property M Street, Suburb N.  Five years later, he sold this property for $444,000.  The parties then purchased jointly the property R Street, Suburb S for $865,000.  The whole of the net proceeds of sale of the Suburb N property were applied to the purchase of the home at Suburb S.  The proceeds of sale of the Suburb N property constituted approximately half of the purchase price of the house at Suburb S.

2. At the commencement of cohabitation the husband also had approximately $40,000 in savings, a motor vehicle 1, a motorcycle and superannuation of $14,993.  He had no significant liabilities.

3. When the parties began to live together in 1995 the wife owned a car, furniture, household effects and she had a modest amount of savings.  She may have had a credit card debt.

4. During the parties’ cohabitation the husband received gifts from his mother and distributions from her corporate entities.  Between 2006 and 2008 the husband’s mother gifted to him a total of $500,000.  A total sum of $375,000 from these funds was applied to reduce the mortgage loan which the parties took out on the purchase of the Suburb C property.  A further sum of $125,000 which was gifted to the husband by his mother was injected into the parties’ savings.

5. The husband’s mother also gifted to him annual sums in amounts ranging between $4,000 and $5,500.  The husband applied these funds to the living expenses of the family.

6. The capital contributions made by the husband and on his behalf by his mother thus amounted to approximately $944,000 in the years between 2000 and 2008.  The wife took no issue with the fact of the husband’s capital contributions from the proceeds of sale of the Suburb N property or by way of advances from his mother.

7. Between 1995 and 1999 the husband earned a taxable income in the range of $90,675 to $154,624.  Between August 1999 and December 2008 the husband held a highly paid position at Company O.  His taxable income for the years 2000 to 2009 was as follows:

FY ended 30 June	Taxable Income
2000	$189,678
2001	$403,388
2002	$357,847
2003	$376,720
2004	$433,842
2005	$556,864
2006	$748,370
2007	$634,371
2008	$836,461
2009	$741,852

The amount of $741,852 in the 2009 year included a redundancy payment in excess of $300,000.

1. After the husband was retrenched by Company O in December 2008, he obtained positions which paid lesser salaries.  His taxable income for the years 2010 to 2013 was $262,596, $382,153, $441,918 and $241,164.  After he commenced his law degree at the beginning of 2013, the husband’s income reduced substantially to $58,192, $73,638 and $47,618 in the years 2014, 2015 and 2016 respectively (Exhibit 2).  These amounts consisted of interest, dividends and income from employment.

2. The wife held full-time paid employment from the commencement of cohabitation until December 1998.  She then worked part-time until August 1999.  The wife gave unchallenged evidence that the parties made a joint decision that she should leave her full-time employment to facilitate their wish to have children.

3. From August 1999 until April 2008 the wife assumed the role of major homemaker and primary carer for the parties’ two children.  The husband asserted that he made “an equal contribution in relation to the care of the children” but, in my view, that proposition cannot withstand scrutiny.

4. On the husband’s own evidence, he “was required to make sacrifices” during the period between 2000 and his retrenchment in December 2008.  He deposed:

   37.During this period the Australian economy was in a growth phase and the financial services industry was booming.  I was paid well and I took advantage of this by working hard and taking career advancement opportunities.  I was however required to make sacrifices during this period, including occasionally working long hours, working from home in the evenings including participating in late night conference calls and undertaking international travel approximately 8 times per year ...

5. A schedule of the husband’s overseas travel (Exhibit 3) indicated that he spent considerable time away from the family.  The husband placed a cross beside the trips which he made with the wife and the family unit as a whole.  He marked  trips to Europe in 1995 and 2007.  The schedule of the husband’s overseas travel read as follows:

GIBSON TRAVAL [sic] OVERSEAS
·     30/9/1995 – 17/10/95	Europe	17 days	H X
14/11/20 STET ●  6/11/1995 – 24/11/1995	Africa	20 days	B
·     11/10/1996 – 20/10/1996	Asia	9 days	B
·     9/1/1997 – 18/1/1997	UK	9 days	H
·     9/5/1998 – 6/6/1998	Europe	28 days	H
·     16/6/2000 – 23/6/2000	USA	7 days	B
14/11/2000 – 17/11/2000	New Zealand	3 days	B
(illegible)  ●  13/2/2001 – 17/2/2001	Asia	4 days	B
·       7/10/2001 -12/10/2001	Asia	5 days	B
○         - 9/10/2003	UK
·       2/11/2003 – 6/11/2003	Asia	3 days	B
·  - 6/11/2003	Asia
·       8/8/2004 – 13/8/2004	Asia	5 days	B
·                - 3/9/2004	Asia
·       13/2/2005 – 19/2/2005	Asia	6 days	B
·          ○           - 25/2/2005	Asia
·       28/2/2005 – 11/3/2005	USA	11/12 days	B
·       24/4/2005 – 30/4/2005	Asia	6 days	B
·       3/7/2005 – 7/7/2005	Asia	3 days	B
·       14/8/2005 – 20/8/2005	Asia	6 days	B
·       10/10/2005 – 22/10/2005	UK	12 days	B
·       26/1/2006	Asia	4 days	B
·       29/1/2006 – 10/2/2006	UK	13 days	B
·       19/2/2006 – 21/2/2006	New Zealand	2 days	B
·  - 9/3/2006	Asia
·       12/3/2006	Asia	2 days	B
·  - 31/3/20096	Asia
·       4/6/2006 – 9/6/2006	Asia	5 days	B
·       11/6/2006 – 17/6/2006 UK	UK	6 days	B
·       19/6/2006 – 24/6/2006	Asia	5 days	B
·       27/8/2006 – 1/9/2006	Asia	6 days	B
·       16/10/2006 – 27/10/2006	USA	11 days	B
·  ■  1/12/2006	Asia
·       14/1/2007 – 20/1/2007	Hong Kong	7 days	B
·          ○           - 2/2/2007	Asia
·       6/2/2007 – 25/2/2007	Europe	20 days	H
·       7/3/2007 – 16/3/2007	Asia	10 days	B
·       15/4/2007 – 19/4/2007	Asia	5 days	B
·       6/5/2007 – 11/5/2007	Asia	6 days	B
·       12/6/2007 – 16/6/2007	Asia	5 days	B
·       2421/6/2007 – 28/6/2007	Asia	46/7 days	B
·       1/8/2007 – 2/8/2007	Asia	2 days	B
·       5/8/2007 – 10/8/2007	Asia	6 days	B
·       3/8/2007 -	Asia	4 days	B
·       16/9/2007 16/8/2007 – 21/9/2007	USA	6 days	B
·       11/11/2007 – 16/11/2007	Asia	6 days	B
·       6/12/2007 ■ 24/12/2007	Europe	18	B H
X Family Holiday
·       27/1/2008 – 1/2/2008	Asia	6 days	B
·       22/2/2008	Asia	3 days	B
·       24/2/2008  9/3/2008	UK	11 days ?	B
·       20/5/2008 – 23/5/2008	Asia	4 days	B
·       25/6/2008 – 26/6/2008	New Zealand	2 days	B
·       31/8/2008  3/8/2008	Asia	4 days	B
■    5/9/2008	Asia
·       21/10/2008 – 24/10/2008	Asia	4 days	B
·       20/2/2012 25/2/2012	USA	6 days	B
·       16/7/2012 – 18/7/2012	NZ	3 days	B
·	28__ days

1. Since the wife moved out of the former matrimonial home in November 2014 the parties have shared the care of E equally and F has spent more time with her mother than her father.  Both parties have contributed to the financial support of the children.

2. The wife maintained that she carried out or arranged and supervised repairs and renovations to the Suburb N and Suburb S properties.  I accept that she made such a non-financial contribution.

3. The husband made significant direct financial contributions by way of the introduction of the unencumbered Suburb N property and his relatively high level of income.  His mother made substantial direct financial contributions on his behalf.  On the other hand, the wife assumed most of the responsibility for the role of homemaker and she was the primary carer of the parties’ two children.  The wife also made a non-financial contribution by way of her role in the repairs and improvements to the Suburb N and Suburb S properties.

4. The husband contended that contributions should be assessed at 62.5 per cent and 37.5 per cent to himself and the wife respectively.  The wife maintained that contribution should be assessed at 45 per cent to her and 55 per cent to the husband.

5. It seems to me that the direct financial contributions made by the husband and on his behalf should carry significant weight.  At the same time, the High Court has made clear that “the contribution made by the wife as a homemaker and parent should be recognised ‘not in a token way but in a substantial way’”:  Mallet v Mallet (1984) 156 CLR 605 at 609. I have highlighted above the evidence in relation to the husband’s work-induced absences from the home and family. In all of the circumstances I find that contribution should be assessed at 60 per cent to the husband and 40 per cent to the wife.

Section 75(2) factors

1. The husband and the wife are aged 51 and 53 respectively and they are both in good health.  Both parties are capable of engaging in paid employment and in fact do so at the present time.  The evidence suggested, however, that the husband is likely to earn a greater income than will the wife.

2. In her affidavit of 8 April 2016 the wife recounted her unsuccessful attempts to secure employment since 2009.  I accept that she has made genuine attempts to find a position in this field but her lack of recent experience has been a countervailing factor.  As noted, the wife was obliged to settle for part time employment between December 2012 and September 2014.

3. In 2015 the wife completed two TAFE courses and has since secured limited employment.  The wife’s evidence was that she intends to undertake a course with as soon as she is able to do so, with a view to enhancing her employment prospects in that sector.

4. As set out above, the husband is highly qualified and is in the process of completing another degree.  His intention is to secure employment in the field of his expertise.

5. In his affidavit of 21 April 2016 the husband recounted his unsuccessful applications for various jobs since 2014.  On the basis of his past experience, the husband opined that his age militates against his employment prospects in that field.  The husband’s evidence was that he hopes his new qualifications will enhance his employment prospects.

6. A remuneration expert, Mr W, set out his opinions as to the difficulties with the husband’s future employment in his report of April 2016.  Mr W opined as follows:

   Conclusion

   While there are some opportunities in different segments of the market, the biggest problems associated with [Mr Gibson] are:

   §He is of an age where organisations are not taking as much risk to employ, preferring to employ more junior, less experiences [sic] personnel.

   §Due to his past senior management experience, there will be a bias by some organisations that accepting a more junior position may be seen as detrimental to the long term success of the organisation, and may therefore choose a more junior person to [Mr Gibson].

   §In Product Development and Teaching, he would need to prove his commercial skills in the former and obtain a Diploma of Education for the latter to be seen as successful in these markets.

   §His … experience is highly specialised but is now no longer being used in the marketplace.  Diversification of his … knowledge … will need to occur to ensure he has an opportunity in these various possible employment scenarios.

7. The husband’s evidence was that he has worked for one day per week only since 2013.  He has earned the income set out above for one day per week of employment in the years since 2013.  His level of income, however, has occurred in the context of the husband’s completing a demanding tertiary qualification.  His evidence was that he expects to return to full-time employment when he completes his degree.

1. Overall, I am of the view that it is unlikely that the husband will again achieve the high level of income which he received prior to his retrenchment by Company O.  On the other hand, I consider that it is more probable than not that his income-earning capacity will be greater than that of the wife once he completes his degree.  The wife’s tertiary qualifications have proved to be of no real assistance to her in securing employment in recent times.  The husband, however, has managed to earn income from employment for one day’s work per week while completing his degree of $50,166 in 2015 and $30,511 in 2016.

2. The husband submitted that there is no factor which warrants an adjustment pursuant to section 75(2).  The wife contended that there should be an adjustment of 5 per cent of the net pool in her favour.  Primarily on the basis of my assessment of the disparity in the income-earning capacities of the parties, I will accede to the submission of the wife.

Result and Outcome

1. I thus find that the net pool of assets and superannuation should be divided as to 55 per cent to the husband and 45 per cent to the wife.  An issue arises as to whether there should be splitting order in relation to the husband’s Australian Super benefit, which is valued at $767,477.  The husband sought that there be a splitting order in a base amount of $248,609 in favour of the wife.  No splitting order was proposed by the wife.

2. In her Response to Initiating Application filed on 12 May 2014, the wife sought a splitting order in a base amount of $300,000 in relation to the husband’s Australian Super benefit.  During her oral evidence the wife said “I no longer seek a splitting order” but she proffered no reason for this change in her position.

3. It seems to me that as a matter of justice and equity, the parties should share the burden of lack of immediate accessibility to this significant amount of superannuation.  They are both aged in their early fifties and are unlikely to be in a position to access any superannuation benefits for some years.  The husband’s proposed order would see his Australian Super fund divided in the ratio of about two-thirds to him and one-third to the wife.  Her Response to Initiating Application contained a proposal which would see a splitting order with a greater base amount in her favour.  For these reasons I will make a splitting order as sought by the husband.  Accordingly, the husband will retain $518,868 and the wife will take a base amount of $248,609 from this fund.

4. The result is that the husband will retain the following assets and superannuation:

($)
1.	NAB iSaver Account	85,965
2.	NAB Account	3,734
3.	HSBC Account	11
4.	1,000 NIB Shares	4,350
5.	Motor Vehicle 1	10,100
6.	Household Contents	27,410
7.	Jewellery	300
8.	Amount Payable by Mr Gibson Trust	38,615
9.	Interim Costs Paid Pursuant to Orders of 29 September 2014	100,000
10.	Australian Super	518,868
$789,353

The husband has a credit card liability of $316, which means he holds net assets and superannuation to the value of $789,037 independently of a distribution from the proceeds of sale of the Suburb C property.

1. The wife will retain or take the following assets and superannuation:

($)
1.	NAB Term Deposit 893317389	15,945
2.	NAB Term Deposit 116519920	42,831
3.	NAB Account	171
4.	Macquarie Cash Management Account	403
5.	Motor Vehicle 2	6,300
6.	Jewellery	3,000
7.	Interim Costs Paid Pursuant to Orders of 29 September 2014	146,917
8.	Interim Property Settlement Received Pursuant to Order of 29 September 2014	207,090
9.	Inheritance from Estate of Late Mr X Boothman	14,000
10.	Macquarie ADF Super	44,667
11.	AMP Eligible Rollover	4,147
12.	BT	633
$486,104

The wife has two credit card liabilities which amount to a total of $15,613.  Accordingly, the wife holds net assets and superannuation to the value of $470,491 independently of a distribution from the proceeds of sale of the Suburb C property.

1. The parties both proposed that there be orders which require them to do all things necessary to distribute the net proceeds of sale of the Suburb C property so as to effect a specified overall division of the net assets and superannuation.  The Minute submitted on behalf of the husband contained a proposed order that the parties cause a distribution of the net proceeds of sale of the Suburb C property:

   2.4.…such that the husband and the wife each receive and/or retain, taking into account the other assets held by them under the settlement and the interim property settlements, the following share of the net property:

   2.4.162.5 per cent to the husband

   2.4.232.5 per cent to the wife.

   I assume that the intention of the husband was to achieve an overall division in the ratio of 62.5 per cent to himself and 37.5 per cent to the wife.  For her part, the wife proposed orders which would achieve an overall equal division between the parties.

2. It is thus the case that I am not asked to make precise orders in relation to the distribution between the parties of the net proceeds of sale of the Suburb C property.  I will make orders in the form proposed by both the husband and the wife.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on

19 August 2016.

Associate: 

Date:  19 August 2016