Gillard & Gillard

[2016] FamCA 841

FAMILY COURT OF AUSTRALIA

GILLARD & GILLARD AND ANOR [2016] FamCA 841

FAMILY LAW – PROPERTY – Where the wife asserts that the husband has received and will receive royalties for intellectual property he held in relation to processing – Where the husband has not provided full and frank disclosure in relation to his involvement with a company using similar processing method – Where the wife’s sister contributed monies throughout the course of the marriage – Where those debts are probably now unenforceable and are dealt with as a s 79(4)(d)-(g) consideration –Where the wife claims pursuant to the principles in Kennon that her contributions were made significantly more arduous due to family violence – Where a 10 per cent adjustment is made in the wife’s favour based upon contributions with a further 7.5 per cent adjustment made in favour of the wife referable to her contributions being made significantly more arduous having regard to the history of the husband’s violence and abusive conduct during the marriage to both the wife and the children – Where the assets are to be divided as to 67.5 per cent to the wife and 32.5 per cent to the husband based on contributions – Where a further 5 per cent adjustment is made for s 79(4)(d)-(g) matters including the husband not being truthful about his involvement with the activities and processes carried out by a company – Where the assets are divided as to 72.5 per cent to the wife and 27.5 per cent to the husband.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Limitation Act 1969 (NSW)

Biltoft & Biltoft (1995) FLC 92-614
Gosper & Gosper (1987) FLC 91-818
Ismail v Elfar [2011] FamCA 716
Kennon & Kennon (1997) FLC 92-757
Kessey & Kessey (1994) FLC 92-495
Minterly & Minterly (2013) FamCA 418
Whelan v Whelan [2010] FamCA 530
X & X (2000) FLC 93-017

APPLICANT: Ms Gillard

RESPONDENT: Mr Gillard

2^nd RESPONDENT: K Pty Ltd ACN...

FILE NUMBER: SYC 396 of 2012

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 15-17 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Murphy

SOLICITOR FOR THE APPLICANT: Ziman & Ziman

SOLICITOR FOR THE RESPONDENT: Cooper Family Law

Orders

1. Pursuant to s 79 of the Family Law Act 1975 (Cth) a property settlement order is made in accordance with the terms at paragraphs 2 – 8 below.

2. That within a period of three months the wife pay to the husband the sum of $385,550.

3. Contemporaneously with the payment referred to in paragraph 2, forthwith upon the making of these orders the wife shall be declared to have the sole right title and interest in the property situated at and known as L Street, Suburb M (“the Suburb M property”).

4. Contemporaneously with the payment referred to in paragraph 2, the husband provide to the wife a withdrawal of the caveat he has lodged upon the title of the Suburb M property.

5. Contemporaneously with the payment referred to in paragraph 2 the wife shall indemnify the husband for all or any liability of the parties’ to Ms N.

6. Contemporaneously with the payment referred to in paragraph 2 the husband do all acts and things and sign all documents necessary to cause Gillard Pty Ltd to transfer to the wife full ownership of the 4WD motor vehicle which is in the wife’s possession.

7. In the event that the wife fails to make the payment referred to in paragraph 2 then:

   7.1.Both parties do all things and sign all necessary documents to cause the Suburb M property to be sold by private treaty at a price to be agreed between the parties and failing agreement to be determined by a nominee of the President for the time being The Australian Valuers Institute and the proceeds of sale be divided as follows:

   7.1.1.Payment of agents fees and commissions and legal costs of the sale;

   7.1.2.72.46 per cent to the wife;

   7.1.3.27.54 per cent to the husband.

   7.2.In the event that the parties are unable to agree on an agent and a solicitor/conveyancer the wife shall nominate three agents and three solicitors/conveyancers and the husband shall select an agent and a solicitor/conveyancer within 7 days of receiving the wife’s lists.

8. The parties shall retain to their exclusive possession and ownership all assets standing in their name or in their possession as at the date of these orders and each of the parties will indemnify the other against any debts standing in their name at the date of these orders.

9. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act1975 (Cth) to execute such documents on behalf of such party.

10. Each party has liberty on 14 days’ notice to make an application in relation to the implementation 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 Gillard & Gillard and Anor 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 396 of 2012

Ms Gillard

Applicant

And

Mr Gillard

Respondent

And

K Pty Ltd ACN...

2^nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Both the husband and wife seek a property settlement order. The husband and wife were married for 37 years and have three adult children. The wife continues to live with two of the children in the former matrimonial home at L Street, Suburb M (“the Suburb M property”) the value of which has been agreed at $1.4 million.

2. The issues that attracted significant attention during the hearing related to the husband’s involvement in the mining industry, receipt and possible future entitlement to royalties for intellectual property that he once held; monies provided by the wife’s sister throughout the course of marriage; debts to the wife’s family members; the husband’s use of  monies and superannuation funds received after separation and the wife’s claim arising from principles expressed in Kennon & Kennon (1997) FLC 92-757.

3. Outstanding issues involving the 2^nd respondent, K Pty Ltd were settled by a consent order being made on the first day of the hearing.

APPLICATIONS

1. The orders that the wife seeks are set out in Schedule 1. The wife seeks to be declared the sole owner of the Suburb M property and to have transferred to her the motor vehicle in her possession. Otherwise the wife seeks a declaration that both parties retain any other asset and liability in their current control and possession.

2. The wife seeks that result by arguing for a particular configuration of the asset pool and then a 60/40 division in her favour of the asset pool based upon contributions made with a further 10 per cent uplift arising from the wife’s Kennon claim. The wife further seeks an additional 10 per cent adjustment based upon s 79(4)(d)-(g) factors. The wife argues that, based on her version of the balance sheet, that would entitle her to a 100 per cent interest in the Suburb M property.

3. The orders that the husband seeks are set out in Schedule 2. He seeks a sale of the Suburb M property and for the balance of the proceeds of sale to be divided evenly between the parties. It’s the husband’s submission that after 37 years of marriage, contributions should be assessed as equal and that there is no basis to make any adjustment for s 79(4)(d)-(g) matters, although during final submissions the lawyer for the husband conceded that the husband may well be the subject of a finding that he had failed to make a full and frank disclosure.

DOCUMENTS RELIED UPON

1. The documents relied upon by each party are set out in the wife’s outline of case document (Exhibit 6).

SHORT HISTORY

1. The husband was born in 1949 and is 66 years of age.

2. The wife was born in 1951 and is 64 years of age.

3. The parties commenced cohabitation and were married in 1974.

4. The parties’ first child, Ms O, was born in 1980 and is 36 years of age.

5. The parties’ second child, Mr P, was born in 1983 and is 33 years of age.

6. The parties’ third child, Ms Q, was born in 1988 and is 28 years of age.

7. The parties finally separated on 27 September 2010. They were divorced on 31 December 2011.

CREDIT

Husband

1. In an affidavit on 17 July 2015 (part of Exhibit 33) the husband swore that G Pty Ltd (“G”), E Pty Ltd and F Pty Ltd had nothing to do with him, that he was not receiving any benefit from the operation of those companies and that “I am not a contracting part of the Companies”.

2. During cross examination, the husband was given an opportunity to change this evidence and responded by saying that he was a friend of people involved in G and had sometimes assisted them with advice on various occasions.

3. In an affidavit of Ms H (the woman whom the wife claims is the husband’s de facto partner and who did not give evidence before me) filed by the husband on 24 December 2014 in interlocutory proceedings, Ms H claims that she was the sole owner of “the E process”. She says that her two sons Mr R and Mr S are shareholders of G and that she is an employee and CEO of G. She states that G is the vehicle which holds the commercialisation rights of “the E process”. She asserts in that affidavit that the husband “has no interest in my companies or [G Pty Ltd]”.

4. In an affidavit filed by the husband in July 2015, Mr S (Ms H’s son and who also did not give evidence before me) states that he is a director of G and that the husband is “not a contracting party of [G Pty Ltd]” and “In short, the Respondent Husband has nothing whatsoever to do with [G Pty Ltd]”.

5. The evidence that the husband filed to the effect that he had nothing to do with G was untrue. The wife produced a number of documents which connected the husband to G. The husband was asked about a Power Point presentation that he had given in May 2015 (commencing at page 27 of the annexures to the wife’s affidavit filed 30 November 2015). The husband conceded that he was spruiking the advantages of the E process on behalf of G. Annexed to the same affidavit by the wife commencing at page 62 is a report from Company T which contains information relating to E processing results. At page 16 of that report (page 78 of the annexure) the report says that these results are based on information compiled by the husband who has “sufficient experience which is relevant to the [E process] to qualify as a Competent Person” to speak about these topics. The report describes the husband as a consultant with G. A number of other documents of a similar nature have been tendered.

6. The husband later conceded in cross examination that he had earnt money from G as a consultant and otherwise gave evidence which would indicate that he had not been truthful in an affidavit that he’d provided to the court in interlocutory proceedings filed in July 2015 and had filed evidence from Ms H and Mr T in December 2014 which was disingenuous.

7. This leads me to be cautious about any other evidence that the husband might give where that evidence contradicts that of the wife or is not otherwise supported by objective evidence or is inherently likely.

Wife

1. The wife suffers from anxiety and depression. I bear that in mind when assessing her demeanour. At times during her oral evidence the wife became flustered and on occasions didn’t focus on the questions she was being asked.

2. Various claims made by the wife in her case have not been adequately supported by admissible evidence.

3. In respect of some of her claims the wife clearly relied upon her daughter Ms Q to produce spreadsheets and summaries and to tell her the results of that analysis.

4. Given the emotional nature of some of the wife’s presentation I approach some of her evidence with some caution.

Ms Q and Mr P Gillard

1. The second and third child of the parties both gave evidence in the wife’s case. They are both currently residing with the wife in the Suburb M property. Both gave evidence in a straight forward manner. Notwithstanding that each of them clearly enthusiastically support their mother’s cause, I did not form the view that either of them were being untruthful in what they had recollected had happened during the time that the husband and wife lived together with them as a family.

DETAILED CHRONOLOGY

1. The husband was born in 1949 and is currently 66 years of age.

2. The wife was born in 1951 and is currently 64 years of age.

3. Prior the parties’ marriage the wife worked as a secretary and the husband worked for BHP.

4. The parties commenced cohabitation and were married in 1974.

5. In March 1974 the wife contracted genital herpes from the husband.

6. After the parties’ marriage they moved to Brisbane where the husband commenced employment with Company U before working as a manager in V Town, Queensland. The wife commenced working in administration before working in a business called, V Town Admin Service which was established by the husband and/or the wife. At this time the wife also worked for the local newspapers in V Town, ran the office for a building society in V Town and sold handicrafts.

7. In November 1975 the parties returned to Sydney where they resided with the wife’s mother for a period of some months. The husband applied for a Masters in Business Administration which he studied part time for four years.

8. In 1976 the wife attended TAFE to learn various craft skills. She worked in direct selling and in January 1976 she commenced working in administration with GIO. At this time the husband worked for the Bank of NSW.

9. In February 1976 the parties purchased a house at W Street, Suburb X (“the Suburb X property”) for about $30,000.

10. In February 1977 the husband obtained employment with Company Y.  

11. In July 1977 the husband commenced employment at Company Z. From about this time the wife says that the husband began to drink heavily and show signs of physical aggression.

12. In about 1978 the parties’ sold the Suburb X property for $50,000. At this time, the husband commenced employment at Company AA.

13. In 1979 the parties purchased a block of land at BB Street, Suburb CC, and built a house there (“the Suburb CC property”). They moved into the house in May 1980.

14. From March 1980 the husband worked for Company DD.

15. The parties’ first child, Ms O, was born in 1980. At this time, the wife ceased employment to care for Ms O full time.

16. The parties’ second child, Mr P, was born in 1983.

17. On 5 March 1984 the husband purchased a New Zealand business in which he sold retail and purchased for suppliers. When the wife told the husband she did not think purchasing this business was a good idea, he grabbed her by the neck, pushed her against a wall, hit her in the face and threatened to kill her if she cancelled the cheque for payment of the business. However, the husband subsequently closed the business, becoming unemployed in May 1984.

18. In about 1984 the parties moved to EE Street, Suburb FF (“the Suburb FF property”) and rented out the Suburb CC property. On the day the parties moved into the Suburb FF property the husband followed the wife into the house after Mr P had been crying and punched the wife in the chest and arms before grabbing Mr P and throwing him across the room. The husband then continued to punch the wife and threw her to the ground and kicked her. The husband subsequently moved into his parents’ home for one year. The parties subsequently separated for a period of about a year before reconciling in September 1985.

19. In late September 1985 the husband received a job offer from Company GG in Asia. The wife and children moved to Asia to join the husband about one month later.

20. In 1986, while living in Asia, Mr P locked himself in a bedroom and did not know how to unlock the door. The husband screamed at Mr P through the door and banged on the door. The husband used an axe to smash a panel of the wooden door. He then opened the door and picked up the piece of wood and hit Mr P with it.

21. In December 1986 the parties moved back to Australia. When the parties returned to Australia they sold goods and furniture the wife acquired in the Asia from a house they rented in Suburb HH.

22. In mid-1987 the parties sold the Suburb CC property and bought a house in II Street, Suburb JJ (“the Suburb JJ property”). The husband says this occurred in 1989. In December 1987 the husband moved to back to Asia to commence working with Company KK.

23. In early 1988 the wife moved to Asia with the children to join the husband.

24. The parties’ third child, Ms Q, was born in 1988 in Australia.

25. In 1989, whilst in Asia, the husband says that he witnessed the wife chasing their driver with a machete. The wife says that on this occasion, the driver had impregnated another one of their maids. She told the driver to leave and he went out and started banging the dashboard of her car with a screwdriver and she chased him around the car asking him to give her the screwdriver before the husband came home. She says there was no machete involved.

26. The parties moved back to Australia in December 1990. When they returned they resided with the husband’s mother for about a month before renting a house at LL Street, Suburb MM. A few months after returning to Sydney, the wife was admitted to the Tropical Diseases Unit in NN Hospital where she was advised that she had contracted sexually transmitted diseases.

27. The husband says the parties separated for a few months in 1991.

28. In 1991 the parties sold the Suburb JJ property. They received about $45,000 net profit.

29. In July 1991 the husband commenced employment with Company OO where he worked until September 1994. After ceasing his employment at Company OO, the husband procured rights to use a South African company, Company PP’s, mining process.

30. In 1992 the parties purchased a property at QQ Street, Suburb M for $365,000 (“the QQ Street, Suburb M property”).

31. In 1992, when Ms Q started school, the wife commenced working in retail sales.

32. In June 1994 the parties sold QQ Street, Suburb M property and purchased the property at L Street, Suburb M (“the Suburb M property”).

33. In November 1994 the wife was working at Woolworths. During the time of her employment with Woolworths the husband physically abused the wife.

34. In 1995 the husband established D Pty Ltd (“D”).

35. In 1996 the wife received a compensation payout of $65,000 due to injuries she suffered in a car accident.

36. In 1996 the husband worked for RR Pty Limited (RR) who invested money into the Company PP technique. However, RR subsequently sued the husband for $1 million. The matter was settled but Mr C who represented the parties, became involved in all of the parties dealings for a percentage in their interests. At first this was 20 per cent in 1998 and later was 30 per cent in 2002.

37. In late 1996 the husband says that the wife was furious and when the husband’s mother sent the children Christmas cards with about $100 inside. The wife drove to the husband’s mother’s house with the children and returned the cards which the children had written on. I accept the wife’s evidence that she was unaware of the offensive writing that Mr P, who was about 13 at the time, had placed upon the card. When the husband drew it to the wife’s attention the wife caused Mr P to apologise to the paternal grandmother.

38. From about 1997 to 2004 the husband was the Managing Director of SS Pty Ltd (“SS”). During this time, the husband commenced an association with TT using the Company PP method of extraction. The wife also worked for TT in a variety of roles for which she was paid a salary. The parties negotiated with Aboriginal elders to enter into a joint venture with UU Pty Ltd to operate a business. This was eventually successful and the parties were able to sign a business agreement for lands for the husband to use. In September 1997 a Joint Venture Agreement was signed.

1. In 1999 the husband says that when the wife’s mother was dying in hospital, she took exception to the doctor’s advice and lifted him up and had him by the scruff of his neck against the wall. The wife denies that she did this but says that she did have a heated argument with a doctor.

2. In January 2001 the wife was diagnosed with lymphoma cancer but continued working for TT. However, at the end of 2002 the wife signed paperwork to remove her from D and she ceased being a director in about January 2003.

3. In late 2003 the parties were driving home after going out to dinner. The wife asked the husband who the blonde woman was that one of their friends had seen him with. The husband pushed and slapped the wife and yelled at her and told her to get out. The wife got out of the car but as she started to walk home the husband told her to get back in the car but showed her his fist and told her not to say anything else.

4. In 2004 the husband received a precious stone collection from his sister valued at $35,000. At around the same time, he received an inheritance from his mother of about $40,000.

5. On 11 August 2004 TT entered into a joint venture with D to undertake projects in the UU Region. In 2004 a deed was created assigned the husband’s interests to VV Pty Ltd (“VV”).

6. From about 2005 to 2011 the husband was employed by WW Pty Ltd (“WW”). From this time he travelled to Brisbane at least a week every month. The husband sold the Company PP method to WW.

7. In 2005 the wife says she learned that the husband had been having an affair with a mother of Ms Q’s friends. She confronted the husband and he denied it. The husband then pushed the wife and Ms Q. Mr P later arrived home to find the husband had attached a hose pipe to the end of the exhaust pipe of a car and was attempting to commit suicide.

8. In late March 2005 the wife found documents showing the husband had stayed at a motel with another person. She confronted him about it and says the husband began pushing and shoving her and grabbed her by the neck threatening to kill her. The wife screamed for Mr P but the husband had locked the door. Mr P hammered on the door and the husband opened it. The wife says Mr P grabbed the husband and dragged him into the kitchen and later escorted him from the house. The parties then separated for about four months. During this time the husband moved to Brisbane. The parties reconciled in May 2005.

9. On 15 December 2005 the wife was advised she had six months to live. The parties travelled to North America for a month in January 2006. The wife said there were three trips to North America the husband said four (three further trips in 2006). From February 2006 to September 2007 the wife lived in Brisbane before returning to Sydney to commence chemotherapy which she continued until January 2008.

10. In 2007 the wife says the husband tried to poison her.

11. In about 2008 the wife received insurance money of about $171,000 due to storm damage to the Suburb M property.

12. On 18 August 2008 the wife redeemed her superannuation entitlement with Colonial First State. She says the husband amalgamated the total sum of $41,853.52 into their family super account. The wife says the joint superannuation fund was controlled by XX Pty Ltd as the corporate trustee of the Gillard Superannuation Fund. The husband says the wife was never made a member of the Gillard Superannuation Fund or made director, shareholder or trustee of XX Pty Ltd. He says the wife made no contributions to the Gillard Superannuation Fund.

13. In 2010 the wife found papers in the husband’s apartment in Brisbane for a mortgage for the purchase of a house in Suburb YY in the name of Ms ZZ.

14. In about June 2010 the husband entered into an agreement with WW assigning his interests and intellectual property in VV. On 23 June 2010 the husband received shares in WW to a value of $525,000.

15. The parties separated on 27 September 2010. They were divorced on 31 December 2011.

16. On 9 November 2010 the wife obtained an Apprehended Domestic Violence Order against the husband after being harassed and intimidated by the husband.

17. From 27 January 2011 the wife received spousal maintenance. In 2012 the spousal maintenance ceased and the wife commenced receiving Newstart allowance on 15 March 2012 for a couple of months before she started to receive a disability pension.

18. In early 2011 Ms Q obtained an AVO against the husband in the Brisbane Magistrates Court. She attemped to extend the AVO in 2013 but was unsuccessful. 

19. On 7 September 2011 the husband ceased working in his position with WW and in 2012 WW went into voluntary administration..

20. On 25 January 2012 the wife commenced proceedings.

APPROACH

1. In this matter my task is to:

   85.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;

   85.2.Determine whether it is just and equitable to make an order altering those interests and if so;

   85.2.1.Identify relevant contributions and assess them;

   85.2.2.Consider relevant matters referred to in s 79(4)(d) – (g) of the Family Law Act 1975 (Cth) (“the Act”);

   85.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

ASSETS AND LIABILITIES

1. The parties produced a joint balance sheet at the commencement of the hearing (Exhibit 2).

2. The major asset of the parties is the Suburb M property which has an agreed value of $1.4 million.

3. It is agreed that the wife’s 4WD motor vehicle is worth $2,000.

4. The wife had originally asserted that there was intellectual property owned by the husband which should be placed upon the balance sheet at a value of $1.5 million. Notwithstanding the opportunities the wife was given to call expert evidence as to the value of any intellectual property, she did not do so and did not press her contention that the value of any intellectual property should be placed on the balance sheet.

5. The background to the wife’s original claim was that the husband caused D to enter into a Deed which assigned to VV certain rights said to be intellectual property. They were:

   90.1.Patents and copyrights;

   90.2.Rights with respect to those patents and copyrights;

   90.3.Information, material and technology developed or acquired by the husband or his companies with respect to the process.

6. The wife had resigned from D in January 2003 but said that she had been pressured by the husband and Mr C to do so. The wife’s oral evidence was inconsistent with what she had written in the last sentence of paragraph 84 of her affidavit filed 28 April 2016. In that affidavit she indicated that there were two reasons why she resigned. The first one was because she was “so unwell” and the second was she believed her share of the royalties would be secure in the hands of the husband and Mr C.

7. When faced with the proposition that the royalty stream did not commence until 2004 she abandoned the assertion that her resignation from D was connected with the royalty stream. She also said that she wasn’t so unwell at that time that she couldn’t continue to work on a part time basis for the company.

8. In 2010 the husband assigned his interest in VV to WW. That transaction included the transfer of VV’s right with respect to the intellectual property. The husband acquired $525,000 worth of WW shares as a result of the transaction.

9. By force of the 2004 deed, the husband is precluded from advancing for his own specific benefit, or the benefit of others, the intellectual property transferred to WW in 2010. It should be noted however that the husband by way of the 2010 transaction became the major shareholder in WW.

10. It was agreed that WW was now in the hands of an administrator and that money owed to creditors was significantly more than its assets.

11. Exhibit 11 are orders made by Justice Aldridge on 14 October 2014. Those orders by consent and a notation provide that the husband was to assign to the wife all documents to cause Company EC to effect a transfer of 50 per cent of its interest in rights pursuant to the SS Joint Venture Settlement Deed dated 11 August 2004. The notation says “The Court notes that the parties agree to seek no further variation to each parties’ interest in the [SS] Joint Venture Deed royalty payments at any future date”. Since October 2014 the wife has seemingly resiled from the position recorded in the notation. In oral evidence she said that was because by the time that transfer came to her the value of the royalty stream was gone.

12. What the husband has retained is the technical knowledge that he gathered throughout the course of the marriage. There is still a live issue as to the husband’s interest in G. It is the husband’s case that Ms H holds intellectual property relating to a process which is known as “E processing”. It is not a matter of contest that the husband is still perfectly entitled to discuss with anybody his personal knowledge in relation to “E processing”. The husband’s involvement in this activity is discussed above in respect of the husband’s credit and will be further discussed when dealing with s 79(4)(d)-(g) matters below.

13. Notwithstanding the husband’s assertion in his outline of submissions that he disavowed the allegation that he was earning income from his knowledge in this area, that position was abandoned by his lawyer in final submissions.

ADDBACKS/POST SEPARATION INCOME

1. The wife seeks to add onto the balance sheet the amount of superannuation funds spent by the husband and royalties received and spent by the husband since separation. The original figures placed on the balance sheet by the wife (Exhibit 2) for each of these asserted addbacks was $850,000 and $618,000 respectively.

2. The wife did not lead evidence to support the amounts which she originally asserted.

3. The husband conceded that he received $127,865 by way of withdrawal from his superannuation fund that is consistent with the bank statements of the fund tendered in evidence. He further conceded that he received $442,974 from income from Company UU (colloquially called “royalties”) and that he received a payout from WW upon his termination in the sum of $129,217.

4. In relation to $100,000 of the $127,865 of superannuation monies an exchange of correspondence between the lawyers for the parties set out what the husband said he did with those monies. In a letter dated 7 June 2012 the lawyer for the husband stated that of the $100,000 drawn from the Gillard Superannuation Fund:

   102.1.$47,700 was paid to XX Pty Ltd (as repayment for his use of funds from WW) which monies were used for:

   102.1.1.$13,044 on 14 February 2012 to the Australian Taxation Office for tax due on behalf of XX Pty Ltd;

   102.1.2.$5,073.48 on 17 February 2012 to Company EC to repay a loan owed by XX Pty Ltd;

   102.1.3.$13,639.17 on 17 February 2012 to the husband which have been spent on his living expenses;

   102.1.4.$16,000 on 17 February 2012 as an intercompany loan to Company EC to supplement Company EC’s tax liability for the financial year to June 2011 being $35,500; 

   102.2.$25,259.76 was paid to the husband for debts on his ANZ Visa;

   102.3.$12,623.93 was paid to the husband for debts on his ANZ Mastercard;

   102.4.$3,659.10 was paid to the husband for debts on his American Express Card;

   102.5.$5,817.14 was paid to the husband for debts on his Suncorp Visa;

   102.6.$3,691.30 was paid to the Australia Taxation Office; and

   102.7.$1,280 was paid to the husband for his rental payments.

5. The lawyer for the husband referred to a notation made by the court on 10 November 2015 where Mr Zimin appearing for the wife asserted that the husband had removed assets to a possible value of $1.7 million from the Gillard Superannuation Fund.

6. Item 7 on the current balance sheet indicates that the wife now asserts that the husband may have removed an amount of $850,000 from the Gillard Superannuation Fund.

7. The financial statements of the Gillard Superannuation Fund are in part annexed to the husband’s affidavit of 19 January 2016 but are more expansively contained in Exhibit 12 for the 2008, 2009 and 2010 financial years. Those financial statements have been prepared by CV Accountants, a firm of accountants who apparently specialise in auditing self-managed superannuation funds. Those financial statements indicate that the assets in the fund as at the end of financial year 2007 were $99,933; in 2008 were $162,180; in 2009 were $221,239; in 2010 were $190,497.

8. The wife was dismissive of the providence of these financial statements saying that CV Accountants were part of a group of professionals over which the husband had influence. On the face of Exhibit 12 it appears that the financial statements have been used to prepare tax returns for the superannuation fund for each year. Apart from the wife’s suspicions, there is no evidence which would cause me to doubt the efficacy of the financial statements contained in Exhibit 12.

9. At the date of separation the balance in the superannuation fund was about $190,497. There is nothing on those financial statements that would indicate that there was ever anything like $850,000 which was the figure the wife originally asserted was in the superannuation fund.

10. In the husband’s affidavit filed 5 January 2015 at [33]-[54] the husband details how the royalties Company EC received from UU in the financial years 2010 to 2014 have been disposed. In total, the husband says he received $633,912 ($685,968 not excluding income tax). In 2010 he says he received $244,599.96; in 2011 $134,621.90 ($96,729.80 minus income tax); in 2012 $157,320.92 ($144,822.31 minus income tax); in 2013 $145,416.18 ($144,351.18 minus income tax); and $3,449.05 in 2014.

11. With respect to the other monies from royalties and termination payments, the husband asserts that he used those monies as follows:

    109.1.Payment of tax;

    109.2.Payments to the wife;

    109.3.Payments of rent;

    109.4.Payments directed to seeking further employment;

    109.5.Payment of living expenses.

12. The husband asserted that the funds received after separation averaged out to an amount of about $115,000 each year.

13. In relation to the assertion that the husband paid rent from these monies whilst the wife lived in the former matrimonial home, tax returns were tendered to indicate that the husband received rental subsidies from his employer until about October 2010.

14. The husband gave some oral evidence that he at a particular point in time had been living in a caravan.

15. There is also evidence that the husband has paid amounts of money to Ms H since separation. Tab 19 of the annexures to the wife’s affidavit filed 17 September 2015 is an extract of the husband’s bank statement with ANZ which lists payments made by the husband. A number of significant payments were identified by the husband in cross examination as actual probable payments to Ms H. They include 10 May 2011 $6,000; 16 May 2011 $10,000; 29 May 2011 $17,000; 30 May 2011 $35,000; 18 June 2011 $5,000; 7 July 2011 $5,000; 4 August 2011 $5,000; 2 November 2011 $5,000; 16 February 2012 $15,031.31 (a total of $103,000). The husband agreed that he had transferred money to Ms H but was unsure how much he would have transferred. The husband also agreed that he had transferred 10,000 frequent flier points to Ms H on 30 January 2012. Ms H has also paid rent for the husband. I will later take into account the unsatisfactory nature of the evidence about the personal and financial relationship between the husband and Ms H.

16. I am not able on the information that I have to reach a finding that there should be an amount added back onto the balance sheet referable to capital that the husband had available to him at the date of separation which he has subsequently used for something other than normal living expenses. The evidence does not enable me to quantify any such sum. I do not intend to add anything back onto the balance sheet relating to the husband’s use after the separation of monies he withdrew from the self-managed superannuation fund or monies that he received by way of royalties or termination payments but will take into account that he has had the use of those funds when considering post separation contributions.

17. The wife produced a document which on its face she said indicated that the husband had on termination received an amount for long service leave in the sum of about $25,000. That document actually shows a debit in relation to long service leave entitlement rather than a credit. The husband denied that he’d ever received any such payment and I accept that he did not.

WIFE’S LIABILITY TO REPAY LOANS

1. The wife seeks that two liabilities be added to the balance sheet as debts for which she is responsible. The first is a debt to her sister, Ms N (“Ms N”), in the sum of $452,000 and the second is debts to other family members in the sum of $500,000.

Borrowings from Ms N

1. In her financial statement dated 25 January 2012 the wife says that her debt to Ms N was in the sum of $381,173. A short time later in a letter dated 7 March 2012 written by her lawyers to the husband’s lawyers a claim is made that the debt to Ms N is actually $2,992,423.

2. In the financial statement that she relies upon at the hearing sworn 20 August 2014 the wife estimates that her debt to Ms N is $500,000. The amount that the wife places on the balance sheet (Exhibit 2) has the debt to Ms N in the sum of $452,000.

3. I put aside as being totally out of line the assertions in the document dated 7 March 2012 of an outstanding debt to Ms N in the sum of $2,992,423. Although the other three amounts are different they are within a tolerable range of a possible quantum outstanding debts to Ms N which might be able to be supported.

4. The evidence that the wife relies upon are contained in pages 20 to 30 of the annexures to the wife’s affidavit of 28 April 2016. Those annexures include documents, some of which have been prepared by the husband, which acknowledge the debt between the parties and the wife’s sister from time to time.

5. A document dated 1 November 1982 indicates that Ms N lent the parties an amount of $10,000 together with a further amount of $2,000.

6. A document dated 10 August 1987 indicates that as at that date there was an amount of $40,000 that had been received from Ms N for the purposes of the acquisition of the Suburb JJ property. The next document dated 19 April 1991 refers to a figure of $45,000 being received to assist to pay off the bank loan on the Suburb JJ property. It was put to the wife that that is the same amount as the amount in the document of August 1987 but I’m not prepared to accept that is so given the wording of those two documents.

7. The third document is dated 3 May 1991 and refers to the amount of $45,000 to assist to pay off the bank loan on the Suburb JJ property. This seemingly is the same $45,000 amount (although the wife denied it was) as the amount referred to in the April 1991 document. There is an addendum to that document dated 13 May 1991 to indicate an amount of $5,000 had been paid off from the amount now outstanding in respect of that advance was $40,000.

8. What is unclear to me is whether or not the original amount of $40,000 borrowed by the parties in 1987 had been repaid by the time the further borrowing of $45,000 in 1991 was transacted. I am prepared to accept that it was not.

9. The next document is a document dated 28 February 1992 recording and acknowledging that a sum of $40,000 plus interest was owing at that time and that that debt was to be secured behind the rights of the banks on the recently acquired 39 QQ Street, Suburb M property. So far as I’m aware there was no formal mortgage documentation or caveat lodged on the QQ Street, Suburb M property to secure that debt. It is a reasonable inference that that debt of $40,000 was the same debt as the one referred to in the May 1991 document.

10. The next document at page 27 of the wife’s affidavit is a document signed by the husband relating to monies received from Ms N of $30,165 on 25 May 1992 which was paid into a visa account. That seems to be a new advance after the acknowledgment of the debt of $40,000 in February 1992.

1. On page 28 of the wife’s affidavit there is a document which would tend to indicate an amount of $45,000 that was made by way of a repayment (I accept to a financial institution) on behalf of the parties on 16 November 1994. The wife’s evidence is that that money came from Ms N to pay down a debt that the parties had to the Advance Bank. The wife gave oral evidence that the Advance Bank were placing pressure upon them to pay the mortgage or they would sell the residence they were living in. There is apart from that document no other evidence that the source of this repayment by the parties was a borrowing from Ms N.

2. On 11 August 1992 or 1993 (the year is unclear on the document) the husband in his handwriting and on his letterhead which is addressed to the QQ Street, Suburb M property states that he and the wife have borrowed a sum of $90,000 from Ms N.

3. Again there is another document signed by the husband which does not bear a date which indicates that he acknowledges that he and the wife owe Ms N $100,000 plus interest and that the security for that borrowing sitting behind the rights of the banks is the Suburb M property.

4. The total of the loans that I refer to above are in the sum of $362,165 ($12,000 + $40,000 + $45,000 + $30,165 + $45,000 + $90,000 + $100,000).

5. The husband would assert that some of these amounts are double counted but he really has no idea. He conceded that monies had been paid between Ms N and the wife (and back again) without the husband being fully cognisant of the amount of money involved.

6. The other documents which the wife’s counsel said were relevant to Ms N’s loan are documents contained at tabs 11 and 12 of the wife’s tender bundle. At tab 11 there is a summary sheet of financial records which add to $104,740. These payments do not contain any of the payments referred to above. Under tab 11 there is a large expenditure on private school fees at LP School (making up the bulk of that $100,000 amount). Under tab 12 there are a group of payments adding to $251,241 being payments on credit cards between January 1987 and May 2005.

7. The problem with both of the documents in those tabs is that although they’re both entitled “Loans from [Ms N]” I didn’t allow that title on the summary sheet and the wife has not actually given evidence about what the documents under tabs 11 and 12 in the tender bundle mean.

8. Ms N provided an affidavit that was sworn on 15 July 2016 which made reference to an affidavit of 14 April 2012. Ms N is 74 years of age and lives in a nursing home. She is legally blind and gave evidence through an interpreter. Ms N underwent open heart surgery at NS Hospital in April 2014 and gave evidence that that operation had affected her memory. Ms N was asked questions about what she’d said in her affidavit of 2012 and in particular how she would have come by the amount of money that the wife says she lent to the parties. In her first affidavit Ms N gave evidence about her working in paid employment since 1959 into the late 1980’s and that she only spent money on reasonable living expenses and saved the balance of her monies. She also says that she received monies from a Ms AB and from a Mr BC. Ms N gave oral evidence that she did not believe that the statement in her first affidavit that Ms AB provided her with monies of approximately $20,000 or $30,000 per year between 1961 and 2005 was correct. She said that she wasn’t given that much money by Ms AB.

9. In her first affidavit Ms N also said that Mr BC loved her very much and between 1972 and 1998 he gave her $150,000 per year. She was asked in cross examination whether or not she had in fact got that level of funding from Mr BC (it would have totalled $3,900,000 ($150,000 by 26). Ms N in oral evidence said that she didn’t receive that much. She also said that her evidence that Mr BC would give her approximately $50,000 on her birthdays was incorrect and maybe she’d get about $2,000.

10. Ms N gave evidence that she had given monies to the parties for prospective business ventures, repayments of debt, renovations, school fees, upkeep of the mortgage, credit cards.

11. There is no doubt that Ms N did advance monies to the parties from time to time (that much is clear from documents signed by the husband from time to time). Unfortunately however little weight can be placed upon Ms N’s evidence given the current state of her memory. 

12. The lawyer for the husband relies on Biltoft & Biltoft (1995) FLC 92-614 which provides that as a general rule, unsecured debts would normally be deducted from the value of the asset when determining the “matrimonial pool”.

13. However, debts are not normally included in the list of assets and liabilities when:

    139.1.The debt is vague and uncertain;

    139.2.The debt is unlikely to be enforced; or

    139.3.The debt is unreasonably incurred.

14. The wife has held her sister’s power of attorney since 1998. Whilst the husband’s lawyer submits that it beggars belief that significant sums such as those referred to by the wife would be borrowed from a person with a disability without strict records being kept, it seems that the husband agrees that that is exactly what happened. The vagueness and uncertainty is as to the amount of the advances not whether or not monies were advanced.

15. I am prepared to accept that an amount in the order of about $362,000 was provided as asserted by the wife and that I also accept the wife’s evidence that the wife’s sister provided significant assistance towards the educational expenses of the children at expensive private schools.

16. The question is whether or not any specific figure should be put as a liability on the balance sheet. The lawyer for the husband points to the fact that in relation to documents that evidence loans, the latest is 1993 and there is no evidence that the wife’s sister has taken any steps to recover any monies nor is there any evidence that it is likely that she would do so. Ms N’s written evidence is to the effect that the debts need not be paid back until the parties are in a position to do so. The husband’s lawyer submits, and I accept, that the debts are probably now unenforceable given s 14 of the Limitation Act 1969 (NSW).

17. Given the issue in relation to enforcement, it is not appropriate that any specific amount as a liability owed by the wife to her sister is placed upon the balance sheet as a debt.

18. I will deal with the monies advanced by Ms N in two ways.

19. Firstly, I consider the amount of $362,000 when considering contributions made to the assets of the parties. In relation to payments by the wife’s sister for school fees and for other expenses, I will deal with that as a s 79(4)(d) – (g) consideration.

Borrowings from family members

1. At [96] of the wife’s affidavit of 28 April 2016 the wife says that she borrowed money from her children and from Ms N to meet her living and legal expenses after the separation. She says her legal expenses are over $500,000.

2. The wife was asked in cross examination to provide further particulars for the outstanding debt of $500,000 to her family members but she was unable to do so (saying Ms Q does everything and she was relying on Ms Q’s work).  

3. Exhibit 15 is with wife’s notice as to costs. The document sets out the source of some of the amounts of legal fees incurred by the wife:

   148.1.$140,000 paid by Ms N;

   148.2.$70,000 paid by Mr P;

   148.3.$35,000 paid by Ms Q;

   148.4.$40,000 paid by Ms O; and

   148.5.$35,000 paid by CD (I’m unaware who that is).

4. The application of normal principal would preclude adding borrowings for paid legal fees onto the balance sheet unless those paid legal fees were added as an asset of the wife. The wife has not otherwise substantiated that post separation borrowings should be added to the balance sheet as a liability.

Conclusion in relation to assets and liabilities

1. The assets and liabilities are:

   The Suburb M property             $1,400,000

   The wife’s motor vehicle                  $2,000

   $1,402,000

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

1. The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities.

2. Both parties seek a property settlement order and I find that in all the circumstances, it is just and equitable to make an order altering property (including adjusting liabilities).

CONTRIBUTIONS

1. As indicated above the wife seeks 70/30 division of the assets based on the contributions. That submission is based firstly on the assumption that a debt of $452,000 would be placed on the balance sheet as a debt she says that she owes her sister and secondly that 10 per cent of that 20 per cent adjustment in her favour would relate to her claim relying upon the principles expressed in Kennon.

2. The husband seeks an even division of the assets (excluding any debt to the wife’s sister) based on contributions.

Initial Contributions

1. Both parties agree that the parties made no initial contributions of any note.

Financial Contributions

1. The parties bought and sold a number of properties during the marriage. They firstly acquired a property in Suburb X in February 1976 for about $30,000 and sold it in 1978 for $50,000. The parties bought a block of land in Suburb CC in 1979 and built a house on it. That property was rented out in May 1984 and the parties moved to Suburb FF. In mid-1987 the parties bought a property at Suburb JJ and in 1990 the Suburb CC property was sold. The Suburb JJ property was also sold in 1991 and the parties in 1992 acquired the first property in QQ Street, Suburb M in 1992 for $365,000. That property was sold in 1994 and the current matrimonial home at Suburb M was purchased.

2. The husband worked full time for the majority of the marriage although there were some periods when he was unemployed. Whilst the exact details are not a matter of any great weight as best I can make it the husband’s employment history was as follows. In 1975 the husband worked for in V Town for Company U; in 1976 for three months for the Bank of NSW; in 1977 for two months with Company Y; from July 1977 to December 1977 for Company Z; in 1978 for 18 months for Company AA; from March 1980 to May 1984 for Company DD Australia. In March 1984 the husband purchased a business in New Zealand but was not in paid employment from May 1984 until late 1985. In late 1985 until December 1986 the husband was employed in Asia. From December 1987 the husband was employed by Company KK in Asia until December 1990. The husband was then unemployed. The husband says this was for six months. The wife says it was for 18 months. It is not necessary to make a finding about that. The wife originally said the husband commenced employment at Company OO in July 1992 but in cross examination made the concession that it was July 1991. The husband worked at Company OO until September 1994. The wife says the husband was substantially unemployed from 1994 to 1997 although in 1996 he was briefly involved with RR (which subsequently led to litigation between RR and the husband). The husband says that he was out of work for six months. From about 1997 or 1998 to 2004 the husband worked as the managing director of SS and earned approximately $120,000 a year and set up D. D was involved in a joint venture with TT and UU Pty Ltd.  

3. From 2005 (the wife says 2004) to 2011 (the wife says December 2012) the husband worked as the managing director of WW Ltd and earnt between $300,000 and $400,000 per year. The husband says that he ceased employment in 2011 (the wife asserts that he continues to be engaged in income earning activity through G).

4. The wife was engaged in various employment throughout the marriage. The wife was working at the time of the marriage in 1974 in administration; she set up a business; she worked several jobs, including procuring and advertising, running an office, selling craftwork at night. In 1976 she went to TAFE and did direct selling, worked for the GIO in administration in 1976 until 1979. The wife assisted the husband in DE Town. The wife then worked at the Corporate Affairs Commission until 1980 prior to Ms O’s birth in May 1980. In 1992 the wife returned to part time work retail. Between 1998 and 2000 the wife worked during school hours for TT.

5. The wife’s not been in paid employment since 2001.

6. The wife received a $65,000 compensation payment in relation to a motor vehicle accident.

7. In 1997 the husband claims he received $130,000 from the winding up of Gillards Pty Ltd, a company that was set up by his parents. The husband was challenged about this claim. The husband has no corroborative evidence to support his assertion that these monies were received and I am not prepared to accept his uncorroborated evidence about this.

8. The husband says he received a precious stone collection from his sister. That stone collection has not been valued and does not appear as an asset on the balance sheet.

9. The husband received an inheritance of $40,000 from the estate of his mother in 2004.

10. As set out above, between November 1982 and sometime into the middle of the 1990’s, the wife’s sister advanced to the parties by way of “loans”, amounts totalling approximately $362,000 which have been identified and which I have indicated earlier I will take into account when assessing contributions.

11. The lawyer for the husband argues that given the wife asserts that monies were “lent” to the parties jointly by her sister, the principles set out in Kessey & Kessey (1994) FLC 92-495, apply because it was the wife’s evidence that her sister provided those funds to the parties jointly.

12. In her affidavit filed 28 April 2016, the wife states:

    167.1.“[The husband] and I commenced to request money…” – paragraph 20;

    167.2.“we continued to borrow money…” – paragraph 32;

    167.3.“[Ms N] lent us money…” – paragraph 32;

    167.4.“[The husband] and I regularly borrowed money…” – paragraph 50;

    167.5.“we borrowed money…” – paragraph 58;

    167.6.“I saw [Ms N] give [the husband] $10,000…” – paragraph 73

    167.7.“[Ms N] paid $45,000 to [the husband] and I…” – paragraph 74

13. Ms N’s affidavit filed 20 April 2012 also states:

    168.1.“I started lending money to the Applicant and the Respondent…” –paragraph 15;

    168.2.“The Applicant and the Respondent initially requested money…” – paragraph 16;

    168.3.“The applicant and the respondent asked me for money…” – paragraph 17;

14. The husband also relies on the fact that the wife’s sister’s affidavit seems to refer to a joint loan at paragraph 21 that was used for particular purposes and a further loan to the wife only when the husband stopped paying spousal maintenance (paragraph 23).

15. The passage that the lawyer for the husband relies upon from Kessey provides:

    [W]here there is no evidence of any intention by a parent-donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the fact of the parent-child relationship, especially in circumstances where that has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent. In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.

16. The lawyer for the husband argues that because the evidence is that monies were requested jointly by the husband and wife and were lent to the husband and wife jointly, then it means that those loans, which can no longer be enforced, were meant by the wife’s sister to be joint contributions made on behalf of both of the parties. Kessey extended the statement made by Fogarty J in Gosper & Gosper (1987) FLC 91-818 which related to gifts or benefactions by a relative of one of the parties to one or both of the parties to all cases where there has been an advance of money from a relative of one of the parties to one or both of the parties. The principle however in Kessey is explicitly said not to apply to circumstances where the advance can be categorised as a loan or is some other recognised commercial transaction.

17. In this case there is no doubt that the wife’s sister intended to advance both parties monies upon the basis that those monies would be repaid.

18. The husband himself concedes that he had no real idea as to what was happening between his wife and Ms N in relation to monies flowing from one to the other from time to time. It is clear in this case that whatever transactions were taking place were taking place because of the relationship that existed between the wife and her sister.

19. Monies which were advanced which Ms N originally intended to be repaid jointly can probably be no longer legally enforced by the Ms N given the effluxion of time. There is no evidence that the wife’s sister intended when advancing the monies, for that situation to arise.

20. I find that the amounts that have been identified totalling $362,000 were direct financial contributions made by the wife’s sister on behalf of the wife.

Non-Financial Contributions

1. The wife contributed to the renovations of all the properties and I accept the wife’s evidence which is set out in some detail in relation to the work she did in relation to the properties at Suburb X, Suburb CC, Suburb JJ and both Suburb M properties. The former matrimonial home was damaged by storm in 2008 and the wife arranged for the repair of that property and the parties received insurance payout of $170,000 in relation to the damage done to the property.

2. The wife supported the husband when he studied a Masters in Business Administration and supported his various business ventures including involving herself in activities of a public relations nature with clients of the husband’s business enterprises. The wife was actively involved in assisting the husband in setting up D including doing part time work for the joint venture.

3. Despite being diagnosed with cancer in January 2001 the wife continued to do some part time work although she ceased to be a director of D in January 2003 due to her illness.

Homemaker and Parent

1. The wife was the primary carer of the children and removed herself from the workforce while they were young. The husband participated (although the wife is critical of the quality of his participation) in sporting and extra-curricular activities of the children to a limited degree.

2. The husband claims that at the commencement of the marriage the parties shared household chores in a traditional manner with the wife maintaining the interior of the home and the husband completing the outdoor maintenance. The wife says he only mowed the lawn after she contracted cancer. I prefer her version about that.

3. When the parties lived in Asia they had helpers to assist with household chores and the care of the children.

4. At times when the husband was absent for work in Asia the wife looked after domestic affairs at home.

5. From 2001 the husband says he was responsible for the majority of all household chores including cooking. During 2005 and 2006 when the wife was battling cancer, the husband was responsible for all household chores including cooking and cleaning. The husband also cared for the wife and took her to cancer treatments. In the husband’s affidavit filed 5 January 2015 he states, “I also cared for [the wife] hand feeding her, cleaning up her vomit and organising and taking her to her cancer treatments.” In oral evidence the wife denied that this was the case saying that she had only vomited on one occasion where the husband had cleaned up after her. I accept the wife’s evidence that this only happened on one occasion.

Post Separation Contributions

1. As already discussed, the wife asserts that the husband has had the use of income, assets and resources since the separation and has failed to properly account for his use of them. In particular the wife points to his sale of intellectual property to WW Pty Ltd, the monies paid to him on termination from WW Pty Ltd in September 2011, the royalty payments received from UU Joint Venture and paid inter alia to EC Ltd and the monies drawn by the husband from his superannuation fund. Exhibit 32 is the husband’s 2013 financial year tax return which indicates that he had received $33,900 from EC Ltd. In oral evidence the husband said that they were royalties received by EC Ltd from the UU Scheme paid as income to him.

1. As also already recorded, the husband concedes that he received the following amounts:

   185.1.$127,865 by way of withdrawal from his superannuation fund;

   185.2.$442,974 by way of income from the now defunct UU operation (colloquially called during these proceedings “royalties”); and

   185.3.$129,217 payout from WW from his termination.

   I have also noted that the husband asserts that he used the monies to pay tax, spousal maintenance to the wife, his own rent and living expenses being otherwise unemployed.

2. The husband submits that on an annualised basis the amount that he received on average was $115,000 per year.

3. The difficulty I have with that submission is that I am unable to be confident about the husband’s evidence in relation to his true level of remuneration. There is a reasonable chance that monies have flowed into G, a company controlled by the husband’s good friend Ms H as a result of the personal exertion of the husband since separation.

4. The wife has made payments of the outgoings on the Suburb M property since separation although she hasn’t particularised how much they have been. The wife says she’s borrowed monies from other persons for that purpose without providing specific details. I accept the husband’s submission that any payments that the wife has made towards maintaining the Suburb M property since separation have been more than offset by the benefit that she has received from the occupancy of that home since separation.

Kennon Claim

Applicable Principles

1. I repeat the discussion of applicable principles in Minterly & Minterly (2013) FamCA 418 at [68] - [73]:

   68.    The Full Court in Kennon & Kennon (1997) FLC 92-757 said the following:

   Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, to put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.

   69.    In Spagnardi & Spagnardi [2003] FamCA 905 the Full Court referred to the above passage in Kennon and emphasised the words “which is demonstrated” saying:

   The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.

   70.    The Full Court in Kennon went on to say that considerations of this nature only apply in a relatively narrow band of cases and that it was not directed at conduct which does not have that effect and, of necessity, it usually did not encompass conduct proximate to the breakdown of the marriage basically because there would be insufficient time for any impact to be relevant to contributions.

   71.    In Spagnardi, the Full Court approved a statement by the trial judge, when the trial judge had commented on the difficulty in that case which arose from the wife’s material, because although it gave evidence about specific acts of violence, it did not expressly refer to the impact of the violence on her contributions. The trial judge went on to say:

   It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions.

   72.    The Full Court in Spagnardi also commented upon the reference to “exceptional cases” and “the relatively narrow band of cases”. The Full Court in Spagnardi adopted the trial judge’s comments that:

   …the references to ‘exceptional cases’ and ‘narrow band of cases’ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are ‘significant adverse impact’ and ‘discernable impact’. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.

   73.    The Full Court in Spagnardi at [47] said:

   An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:

   ·The incidence of domestic violence;

   ·The effect of domestic violence; and

   ·Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to "contribute" as defined by section 79(4).

2. The wife says her contributions were made significantly more arduous as a result of a course of conduct by the husband that the wife and the children were subjected to over a number of years beginning in 1977. That behaviour by the husband was asserted by the wife to be destructive and controlling and was mostly induced by the consumption of alcohol. The behaviour included smashing glasses, assaulting the wife on two occasions in 1984 the second of which led to the parties separating for a year between November 1984 and November 1985, assaulting the wife and Mr P in late 1986 in Asia, assaulting the wife in 1994 when she was working for Woolworths, pushing and shoving the children, assaulting the wife in 2003, assaulting the wife and Ms Q in 2005 when Ms Q was about 16 years of age, with a further assault alleged in March 2005.

3. In 2007 the wife formed the belief that the husband was poisoning her by, on occasions, adding drain cleaner to juices that he prepared for her.

4. The wife obtained an AVO on 9 November 2010 against the husband.

5. Dr EF is the wife’s treating psychiatrist. Dr EF commenced to provide therapy to the wife in 2004 (which is about three years after the wife was diagnosed with lymphoma). The wife regularly attended upon Dr EF until October 2005 when the wife commenced treatment for lymphoma and he did not see her again until the end of 2008. The wife commenced therapy with him again in October 2008 and attended regularly until October 2011. Between June 2012 and July 2014 she attended Dr EF periodically.

6. Dr EF has diagnosed the wife as having depression and anxiety and his psychological treatment for those conditions was supportive psychotherapy.

7. Dr EF provided therapy to Ms Q on four occasions in 2005 and on five occasions in 2012 and 2013. Ms Q Gillard gave a history to Dr EF similar to the history provided in her evidence before me about her recollections of serious difficulties caused by her father’s behaviour at home over the years that she was living in the household. The history she gave to Dr EF was, Dr EF said, consistent with the history given by the wife and involved cruel and inconsiderate behaviour of her father over the years including irrational and abnormal behaviour. Dr EF formed the view that Ms Q had been adversely affected by her father throughout her childhood and early adult life causing her depression and anxiety and affecting her education at school (and at university). Dr EF was of the view that Ms Q is likely to remain affected for many years and will need further counselling and psychological therapy/supportive psychotherapy. I infer the adverse impact that the husband’s behaviour had on Ms Q throughout her childhood and early adult life, made the wife’s role as Ms Q’s parent significantly more arduous.

8. Apart from providing treatment to Ms Q, Dr EF has also spoken to the other two children. Dr EF formed the view based on the history that he was given that the wife’s depression and anxiety have multiple causes. Dr EF conceded that the wife’s serious illness is one cause. He however said that the depression and anxiety in her adult life started after her marriage to the husband in 1974. Whilst in his report of 8 October 2014 Dr EF talked about the wife’s depression and anxiety being entirely due to the husband’s abnormal behaviour generally and his abnormal behaviour towards the wife directly, in cross examination he conceded that there was more than one cause for the wife’s anxiety and depression including her diagnosis of a serious illness. He however maintained his view that the severity of the wife’s psychological problems had its aetiology in the experience she had in the family dynamics. The history that the wife gave Dr EF over multiple interviews was consistent with the evidence that she’s given in this case namely that she’s experienced difficulties over 37 years due to the husband’s behaviour including assaults and the husband infecting her with sexually transmitted diseases.

9. In addition as part of the dynamic Dr EF reported a history given by the wife of the husband being cruel to the three children.

10. In a supplementary letter dated 18 March 2016 Dr EF recorded that the wife had also told him over the time that he had seen her of possible evidence of poisoning by her former husband. When cross examined about this Dr EF said that he had seen a document from NS Hospital which was a comprehensive investigation of the wife’s symptomology. That document contained a toxicology report which indicated that the wife may have poisonous substances in her blood. The wife believes the husband at a point in time did attempt to poison her. In her affidavit filed 22 March 2016 the wife says that on one occasion Ms Q prepared and administered her medication for her. The wife asked her to add the calcium to her drink and Ms Q said there was no calcium. Ms Q then found the bottle that the wife had seen the husband using, which he had claimed was calcium, but it was a bottle of CLR drain cleaner. The husband denied putting the CLR in the wife’s juices saying this was a product in his laundry that he never used. I am unable to place any weight on the wife’s belief that the husband had attempted to poison her.

11. The lawyer for the husband asked Dr EF whether or not he’d been asked to express an opinion about the impact of the husband’s behaviour upon the wife and what she told him about her capacity to work or otherwise function as a parent. Dr EF indicated that he was only asked to provide a report in relation to his treatment.

12. The two younger children recall seeing their father’s violence towards their mother and experiencing violence towards themselves. Mr P remembers an incident in Asia in 1986 when he was three years of age. Mr P was cross examined by the husband’s lawyer, presumably upon instructions, about whether or not he really could have a memory of the incident at that time. He said that he had his own memory of it. That evidence was corroborated by the husband in cross examination confirming that an incident very similar to the one described by Mr P had taken place. The husband expressed regret at beating Mr P with a lump of wood on that occasion. Mr P also remembers being hit by the husband on other occasions particularly when the husband had been drinking alcohol and seeing his father yell at his mother and push her and his sisters. Mr P said that in 1993 he was hit by his father when his father was in a drunken rage. Mr P was 10 years old at the time. Mr P says his father hit him from the age of 10 through to about 16. He also remembers his father’s excessive use of alcohol and his father’s yelling at his mother. Mr P gives specific evidence about an incident in 1997 when his father was drunk and was yelling and pushing the wife and an incident in 2005 when his father’s behaviour caused him to miss exams.

13. Even in 2005 when his mother had been diagnosed with cancer, Mr P remembers his father yelling at his mother and at times during 2007 to 2010 he saw his father get drunk and yell at his mother.

14. Ms Q remembers from when she was young (in about 1991) her father constantly using alcohol and fighting with her mother. She remembers seeing her father throw things and smash glasses and push her mother and that the violence escalated in 1994. She recalls herself and her brother trying to help her mother. The husband agreed the children brought alcohol to him. She has memories of her father hitting her siblings, insulting her mother and an incident in 2005 when she saw her mother being assaulted. Ms Q’s observations also include her father smashing glasses and screaming at her mother whilst under the influence of alcohol in 2007 and this type of behaviour continuing up until 2010.

15. Ms Q lived in the same household as her father for a short time after the parties separated until Ms Q sought an AVO against the husband who had attempted to have her charged with criminal offences.

16. The husband generally denies the extent of the allegations against him. He accepts that he drank regularly but, he said, not to the extent that disabled him from being able to go to work the next day. He claimed that his drinking was in response to his wife’s unfounded allegations of him having extra marital affairs. He admits that on two occasions he smashed glasses. He admits to hitting Mr P inappropriately when he was three.

17. The husband relies on the fact that the wife was employed during the relationship, worked on renovations to property, helped the husband complete university assignments, was the primary carer of the children, moved with the husband overseas and was involved in the husband’s business dealings as all indicators of the lack of veracity in the wife’s allegations.

18. The husband also accepts that in 2005 the husband attempted to kill himself by inhaling exhaust from a car. Mr P intervened and ensured the husband did not make any further attempts or consume more alcohol.

19. The husband’s overall position is that the wife, Mr P and Ms Q have conspired to fabricate a story of family violence for the purposes of maximising the result for the wife in the property settlement order.

20. It is submitted on behalf of the husband that behaviours alleged against him might only be described as improper, inappropriate and not befitting a husband but that the court would not find that such incidents constituted family violence. It was further submitted that having observed the wife give evidence the court would conclude that she would not be submissive in any act of family violence that the husband may have attempted to perpetrate against her.

21. The husband also seeks to rely upon a statement by Dr EF in his report that the wife “also believes rightly or wrongly that [the husband] infected her with sexually transmitted viral disease that caused Lymphoma that came close to causing her death a few years ago” as evidence that the wife’s fears are delusional. The husband concedes that at the commencement of the marriage he caused the wife to contract genital herpes. I am prepared to accept that any sexually transmitted diseases that the wife has were contracted by her as a result of her sexual interaction with the husband. Dr EF was unable to say whether or not the wife’s lymphoma was connected in any way with those viruses. Accordingly I am unable to conclude one way or another as to whether or not the wife’s beliefs that her lymphoma may have been connected in some way with her viral diseases are delusional. Dr EF referred to the fact that the infliction of sexually transmitted diseases by the husband upon the wife had been part of the broader facts relating to the husband’s behaviour that had been a significant causal factor leading to the wife’s depression and anxiety.

22. It was put to the wife in cross examination that had the husband’s course of conduct during the marriage which amounted to systemic family violence being true she would not have stayed with the husband for 37 years. The wife’s answer to that was that both her mother and her priest told her she had to stay in the marriage particularly when the children were little.

23. All parties were tested in respect of the allegations made. I find that the assertions made by the wife and the two adult children should be preferred to the evidence of that of the husband except in one respect. As indicated, the wife and Ms Q formed the view that the husband had attempted to poison the wife on some occasions when he prepared juice for the wife whilst she was unwell. The allegation is very serious and the standard of proof is that referred to in s 140(2)(c) of the Evidence Act 1995 (Cth). Whilst Dr EF offers some corroborative evidence of his memory of an abnormal toxicology report which possibly showed poison in the wife’s test results, I’m unable on the evidence to conclude there is any substance to the allegation made by the wife and Ms Q (although I accept their belief that the husband had behaved in this way is a genuine one).

24. The husband submits that only incidents of violence perpetrated by the husband against the wife are relevant to the wife’s Kennon claim and that other incidents of alleged family violence against the children are not relevant. I do not accept that submission. The wife’s claim that contributions were made significantly more arduous by the husband’s systemic conduct include contributions that she made in the role of parent. Dr EF’s evidence would indicate that the children were all affected by the husband’s conduct that was directed at each of them. I am prepared to infer that the effect of the husband’s conduct on the children made the wife’s contributions as the primary carer of those children significantly more arduous.

25. The husband correctly submits that the wife in her evidence does not directly state that her contributions were made significantly more arduous by the conduct of the husband although the wife does say that she “was unable to function as a normal person”.

26. I am prepared in the context of this case to infer that the proven history of the husband’s violence, in fact, meant that the unquestionable contributions the wife made in the role of homemaker and parent, were made in circumstances where they were significantly more arduous as a result of the husband’s conduct than they would have otherwise been if he’d not behaved in the way that he did.

27. The husband argues that if that finding is made that the court nonetheless has no evidence of quantification. The husband submits that any adjustment should be in the vicinity of 2 to 5 per cent.

28. The husband seeks to rely upon two cases in support of the quantification that he proffers.

29. In Whelan v Whelan [2010] FamCA 530, the court made an adjustment of 10 per cent for a similar length marriage, but in circumstances where the husband in that case was threatening and abusive on an almost weekly basis, including regular physical violence and threats to kill. In that case, it was plain that the wife’s contributions were made more arduous, and extensively so.

30. By way of contrast, in Ismail v Elfar [2011] FamCA 716, Collier J made a 2 per cent adjustment in circumstances of a long marriage, with non-particularised acts of family violence after His Honour found that the family violence did impact the wife, it could not have done so in a vastly significant way.

31. I am required to make an assessment on the facts and circumstances of this case.

Conclusion on contributions

1. This is a marriage of 37 years and both parties made a myriad of contributions over that period of time. Three matters relating to contributions require an adjustment in the wife’s favour. The first two are the monies lent by Ms N and the monies the husband had available to him as a result of assets accumulated during the marriage which he has used since the separation. In respect of those monies I am not confident that the husband has fully accounted for those funds. Weighing those first two matters against all other contributions, I would make an adjustment in the wife’s favour of 10 per cent.

1. Further, I assess that the wife is entitled to a further 7.5 per cent adjustment in respect of the course of the husband’s conduct during the marriage which made the wife’s contributions in the role of homemaker and parent significant more arduous.

2. Overall, I consequently assess that the assets should be divided as to 67.5 per cent to the wife and 32.5 per cent to the husband based on contributions.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

1. The wife seeks a 10 per cent adjustment for s79(4)(d)-(g) matters and the husband says that no adjustment should be made.

2. The husband is 66 years of age and the wife is 64 years of age. The wife suffers from cancer which is in remission and she is on a disability pension. The wife has difficulties with long standing depression and anxiety and currently receives psychotherapy from Dr EF for those illnesses.

3. In a letter dated 30 March 2015 Dr FG, Haematologist, states that “The level of assistance that [the wife] may require in the future depends on when the lymphoma recurs. At present she doesn’t require significant assistance. However, since it is regarded as almost inevitable that the lymphoma will recur then it is likely she will at some stage require a high level of care for the duration of further treatment”.

4. In a letter dated 11 December 2014 Dr GH, General Practitioner, states that the husband is at risk of vascular disease; arthritis; other diabetic complications and other age related health risks. His previous and/or current conditions include ischaemic heart disease; psoriasis; oesophagitis; diverticulitis or diverticulosis; non-insulin dependent diabetes and morbid obesity.

5. Both parties are at retirement age.

6. Both parties receive a means tested pension.

7. The only property that the parties hold, in respect of which a definite finding can be made, is their equity in the Suburb M property.

8. The husband initially asserted that he’s been out of paid employment since 2011. This is unlikely to be the case. Whilst the husband denies that he is currently in a de facto relationship with Ms H, he agreed in cross examination that they were still very close friends. He said that there currently was not a sexual relationship between them but that there had been one up until Ms H had become hospitalised for an illness about which I know little (except for the husband saying in oral evidence that she had a chronic back injury leaving her incapacity for five to six weeks). Ms H is no longer in hospital. The husband also gave as an explanation for the lack of a current sexual relationship, him being overweight.

9. I am unable to say how much time the husband and Ms H are spending together and whether or not they are currently cohabiting. They certainly have a very close relationship and I am unable to know what the real situation is in respect of the intermingling of their financial positions due to the husband’s lack of full and frank disclosure and the failure of the husband to call Ms H as a witness in this case.

10. Ms H is the main force behind G. Her two sons are also directors of that company. The husband claimed that he had nothing to do with G but that turned out not to be true. I have already discussed when speaking about the credit of the husband, the inconsistent evidence about the husband’s involvement with G.

11. The husband claims that he has no interest in the current intellectual property that G holds which he says has been entirely developed as Ms H brain child. I have difficulty accepting the husband’s evidence about that proposition. Nobody associated with G, apart from the husband, has any history of involvement or knowledge in the relevant industries in general. Whilst it may be that Ms H has played an important part in the development of intellectual property that G currently has, on balance it is likely that the husband had a major hand in whatever that might be.

12. The husband has failed to call evidence from either Ms H or her sons. I have referred above to the evidence relating to financial transactions, particularly movement of money from the husband to Ms H post separation. In final submissions, the husband’s lawyer conceded that it was likely that a finding would be made that the husband had not made a full and frank disclosure about his involvement with Ms H and with G. I make that finding.

13. I have no confidence in the husband’s assertion that he has little earning capacity at the current time.

14. Having said that however, I bear in mind that he is 66 years of age and I accept that he has certain health problems that are not uncommon in a man of his age. His future working life will be limited by his age and those difficulties.

15. During the marriage the parties enjoyed a modest standard of living and the wife has been able to continue to live in the former matrimonial home with two of the three adult children.

16. The length of the parties’ marriage and her current age has impacted upon the wife’s capacity to earn an income.

17. I have referred above to the fact that the wife’s sister made payments towards private school fees for the children at LP School and HI School. However, the husband was unable to accept that that was the case saying that the wife handled the payments. In his affidavit filed 28 April 2016 the husband says, apart for a few months in 2004 when he was unemployed and Ms N did assist with paying the school fees, he mostly paid for the children’s private school fees out of his salary. I do not accept that evidence. I find Ms N made significant payments towards the children’s private school expenses. The wife’s sister also paid monies for other expenses. These payments are in addition to those payments I have already taken into account when discussing contributions. It is not possible to be more specific in relation to the quantum of these payments by the wife’s sister but I take into account in a general way the wife’s sister’s payments as a s 79(4)(d) – (g) consideration which favours the wife.

18. The husband submits that the wife has led no evidence about the financial relationship between herself, Mr P and Ms Q. Both adult children are in employment. Mr P is a tradesman and earns about $32 per hour resulting in an income of about $900 to $1,000 per week. Ms Q is a professional and earns about $57,000 per annum. Both of them currently pay their mother $100 per week for board which includes their mother providing meals and lunches for them. Both children expect to eventually live in independent accommodation and have their own families. Although the topic was not explored, I infer that they would do what they can to assist their mother in organising any finance that might be possible to enable her to retain the matrimonial home.

19. The wife wants to have taken into account under s 75(2)(o) the fact that the husband inflicted sexually transmitted diseases upon her. I have already referred to that history when dealing with the wife’s Kennon claim and have noted that this history was part of what Dr EF said were the broader facts relating to the husband’s behaviour that had been a significant causal factor leading to the wife’s depression and anxiety.

20. The difficulty of taking into account the infliction of sexually transmitted diseases in the absence of the wife bringing medical evidence as to the ongoing effect upon her it was highlighted by the Full Court in X & X (2000) FLC 93-017. I do not take this consideration further into account under s 75(2)(o) of the Act.

Conclusion in relation to s 79(4)(d) – (g) considerations

1. I bear in mind the result that flows from my conclusions in relation to contributions which creates a significant difference (about two thirds/one third) in the share of the matrimonial home.

2. I bear in mind the husband’s age, the realistic length of his working life and health difficulties that he has identified. Unlike the wife however, the husband does have earning capacity which he can utilise for some time to come. The husband was not full and frank in relation to his disclosure as to how he is currently exercising his earning capacity. He failed to call Ms H or the son who is in Australia. I am unable to say what level of involvement or even control the husband has in G but the reason I am unable to be certain about it arises from the fact that the husband has not been truthful about his involvement with the activities and processes carried out by that company.

3. I do not need to be particularly careful in making findings about what in fact the husband is doing in terms of generating income at the moment.

4. No other s 79(4)(d)-(g) consideration is of any weight.

5. It is appropriate that a further 5 per cent adjustment be made for s 79(4)(d) – (g) matters.

JUST AND EQUITABLE

1. As a result of the findings that have been made in relation to contributions and s 79(4)(d) – (g) considerations, the assets of the parties should be divided as to 72.5 per cent to the wife and 27.5 per cent to the husband.

2. The assets consist of the former matrimonial home and the wife’s motor vehicle. They total $1,402,000.

3. I do not have any evidence as to the wife’s ability to raise funds to retain the former matrimonial home but she may have the assistance of the two adult children who are currently living in the home and possibly any assets that Ms N still retains. I will accordingly give her an opportunity to attempt to pay the husband an amount of money so that she can retain the home (27.5 per cent of $1,402,000 is $385,550).

4. In the event that the wife is unable to pay that money to the husband within three months then the parties are both to do what they need to do to sell the property and having regard to the fact that the wife shall retain the motor vehicle the proceeds of the sale after agent’s fees, commissions and legal costs of the sale will be divided as to 72.46 per cent to the wife and 27.54 per cent to the husband.

5. The wife shall retain her motor vehicle.

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 30 September 2016.

Associate:

Date:  30 September 2016

SCHEDULE 1

1. That forthwith upon the making of these orders the Wife shall be declared the sole owner in law and equity of the property situate at and known as L Street, Suburb M (‘‘hereinafter the Suburb M property’’).

2. That within seven days of the date of these orders the Husband do all acts and things and sign all documents necessary to cause the caveat lodged upon the title of the Suburb M property to be withdrawn at the Husband’s cost and confirmation of such withdrawal shall be provided forthwith to the Wife’s solicitor.

3. The forthwith upon compliance by the Husband with order 2, the Wife shall forthwith and forever hereafter indemnify the Husband for all or any liability of the parties’ to Ms N.

4. That the Wife do all things and sign all documents to forthwith transfer 448,000 B Limited shares to K Pty. Ltd. ACN... upon the Wife being provided with transfer documents by the Husband and/or Mr C on behalf of K Pty Ltd of Australia Pty. Ltd. CAN:  ….

5. That within seven days of the date of these orders the Husband do all acts and things and sign all documents necessary to cause D Pty. Ltd. to transfer to the Wife full ownership of the 4WD in the Wife’s possession.

6. That the Wife shall otherwise be declared the sole owner in law and equity of all property in her name, possession or control and shall forthwith and forever hereafter indemnify the Husband for all or any liabilities in her name or for which she is responsible.

7. That the Husband shall otherwise be declared the sole owner in law and equity of all property in his name, possession or control and shall forthwith and forever hereafter indemnify the Wife for all or any liabilities in his name or for which he is responsible.

SCHEDULE 2

1. That the property at L Street, Suburb M (“the Property”) be sold within 90 days of the date of order as follows:

   a.That the Wife nominate three agents to conduct the sale within 7 days of the date of the orders;

   b.That the Husband select one of the panel within 7 days thereafter;

   c.That the Wife execute all appointment documents to appoint the agent within 7 days thereafter;

   d.That the Property be listed at $1,400,000;

   e.That if the Property is not sold within 45 days of the date of order, the Property be listed at $1,375,000; and

   f.That the Wife accept any offer within 10 per cent of the listing price;

2. That in the event the Property is not sold within 90 days, the parties shall seek the advice of the appointed agent to either conduct an auction of the Property, or reduce the listing price, and the Wife shall do all things and execute all document to give effect to the advice.

3. That upon the execution of a contract for sale for the Property, the Husband shall do all things and sign all documents to remove any caveat lodged over the Property.

4. That the proceeds of sale of the Property be disbursed as follows:

   a.To any reasonable agent’s fees and commissions;

   b.To any reasonable conveyancer’s fees and outlays; and

   c.Of the balance:

   i.50 per cent to the Wife; and

   ii.50 per cent to the Husband.

5. That otherwise the parties shall retain to their exclusive possession and/or ownership all assets, whether real or personal, vested or contingent, including any funds in any superannuation policy or bank accounts standing to their name, as at the date of these orders.

6. That otherwise the parties shall indemnify and keep safe the other for any debts standing to their name, or in the name of any associated entity, as at the date of these orders.

7. That the Wife pay the Husband’s costs of and incidental to this Application, including on an indemnity basis.