Graf-Salzmann & Graf

[2015] FCWA 68

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GRAF-SALZMANN and GRAF [2015] FCWA 68

CORAM: WALTERS J

HEARD: 26, 26, 27 SEPTEMBER 2013 & 19 NOVEMBER 2013

DELIVERED : 21 AUGUST 2015

FILE NO/S: PTW 3261 of 2011

BETWEEN: MS GRAF-SALZMANN

Applicant

AND

MR GRAF
Respondent

Catchwords:

FAMILY LAW – PROPERTY – alteration of property interests under the Family Law Act 1975 (Cth) – where parties and their children relocated from Switzerland to Australia – where prior to emigration parties entered into an agreement pursuant to which their property was purportedly divided equally between them – discussion of meaning and effect of the agreement – where funds were subsequently transferred to Australia – where Company P franchises were acquired in Australia – where husband asserted that he had disposed of a business he had previously operated in Switzerland – where husband was found to have continued to operate the business per medium of his father – consideration of parties’ respective contributions before and since separation – where husband assaulted wife during an argument and broke her leg – where husband subsequently returned to Switzerland – where wife remains in Australia – where husband, fearing criminal charges arising out of the assault on wife, has no intention of returning to Australia in the foreseeable future – where husband failed or refused to attend trial in person, notwithstanding dismissal of application for orders permitting his absence

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Ms G Anderson

Solicitors:

Applicant: Self Represented Litigant

Respondent: Tan & Tan

Case(s) referred to in judgment(s):

A & A [2011] FCWA 98
B & B [2006] FamCA 883
Bevan & Bevan [2013] FamCAFC 116
Black & Kellner (1992) FLC 92-287
Bolger & Headon [2014] FamCAFC 27
Bonacci & Bonacci [2012] FamCAFC 15
Briese & Briese (1986) FLC 91-715
Briginshaw & Briginshaw (1938) 60 CLR 336
Browne & Green (1999) FLC 92-873
Chang v Su (2002) FLC 93-117
Chapman & Chapman [2014] FamCAFC 91
Chorn & Hopkins (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-596
Crandall & Crandall [2009] FamCAFC 120
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Dow-Sainter & Dow-Sainter (1980) FLC 90-890
DW v GT (2005) FLC 93-217
Elias and Elias (1977) FLC 90‑267
F & K [2003] FamCA 612
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
G & G [2006] FamCA 877
Giunti & Giunti (1986) FLC 91-759
Hayton & Bendle (2010) 43 Fam LR 602
Herridge & Handerson and Ors [2011] FamCAFC 156
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
K & K [2002] FamCA 1150
Kennon & Kennon (1997) FLC 92-757
Khademollah & Khademollah [2000] FamCA 1045
Kowaliw & Kowaliw (1981) FLC 91-092
McMahon & McMahon (1995) FLC 92-606
Mezzacappa & Mezzacappa (1987) FLC 91-853
Nelson v Nelson (1985) 132 ALR 133
Nemeth & Nemeth (1987) FLC 91-844
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
Oriolo & Oriolo (1985) FLC 91-653
OSF & OJK (2004) FLC 93-191
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Reichstein & Reichstein [2006] FamCA 1422
Rollings & Rollings [2009] FamCAFC 87
Russell v Russell (1999) FLC 92-877
S & S (2005) FLC 93-246
Saxena & Saxena (2006) FLC 93-268
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Townsend & Townsend (1995) FLC 92-569
Waters & Jurek (1995) FLC 92-635
Weir & Weir (1993) FLC 92-338
Woodcock v Woodcock (1997) FLC 92-739
Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 11

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Preamble

1These proceedings commenced with the filing of the wife's application for alteration of property interests and concluded with a hard-fought trial at which the husband was represented but not present and the wife was present but not represented.

2The husband did not appear at the trial because he now lives in Switzerland and is unwilling to return to Australia. His unwillingness in this regard has nothing to do with any financial hardship he may experience as a result of travelling to Perth for the trial; nor is he unable to obtain leave from his employers. He does not want to return to Australia because he fears he will be charged with a serious criminal offence if he does so.

3The serious criminal offence with which the husband fears he may be charged relates to a very ugly incident which occurred in June 2010, when the husband assaulted the wife and broke her leg. Not surprisingly, the assault has had a profound effect on the wife and her attitude to the husband – both generally and in relation to these property settlement proceedings.

4At all relevant times until late 2004 or early 2005, the parties lived in Switzerland. The family (comprising the parties and their two children – who were aged approximately 12 and 10 at the time) then relocated to Perth. The husband was far more enthusiastic about the move than the wife.

5The husband had been the principal in his own business for some years prior to the relocation. The business seems to have been successful, and the parties had acquired assets of substantial value. Their relationship, to that point, could fairly be described as something of a "traditional" marriage in that the husband was the primary "breadwinner" and the wife was the primary home maker and caregiver for the children. That is not to say, of course, that their roles did not overlap from time to time.

6Immediately prior to leaving for Australia, the parties entered into a financial agreement. In broad terms, the effect of the agreement was to divide their assets more or less equally between them. Problems appear to have arisen in the marriage during the period leading up to the preparation and execution of the agreement, but the parties did not separate at that time. Indeed, they did not separate until 2010 or 2011.

7After entering into the financial agreement, the parties tended to keep their assets separate, but they were not wholly successful in doing so. For example, after they arrived in Australia they purchased a home as joint tenants.

8Although the husband asserted that he divested himself of his business at the time of the financial agreement, and was no longer responsible for its conduct and management, the reality is that he remained predominantly responsible for all aspects of its functioning. He continued to generate income through the business, part of which was effectively channelled back to him (or used for the benefit of the family) through his father.

9After the family's arrival in Australia, the husband acquired a [Company P] franchise. He entered into the relevant arrangements through a company as trustee for a family trust which he controlled. The venture was ultimately unsuccessful and the significant costs associated with the purchase of the franchise were lost. In the meantime, the husband sought and obtained employment back in Switzerland, and lived there for approximately 18 months. The wife worked in the Company P franchise during that time. The children attended expensive independent schools in Perth.

10Prior to separation, the wife also acquired a Company P franchise (through a company as trustee for a family trust which she controlled). She operated the outlet for a comparatively short time. She also ran a [fashion] shop. Both of these ventures were unsuccessful.

11By the time the husband returned to Australia in April 2010, the parties' relationship was in tatters. The wife perceived that the husband had excluded her from his financial affairs, and she felt insecure and vulnerable. They argued frequently about money. It was in this context, and after the wife had taken control of some $60,000 remaining after the closure of the first Company P franchise, that the altercation occurred during which the husband broke the wife's leg.

12Although the husband was initially remorseful, and prepared to help the wife while her mobility was limited, he eventually decided to extricate himself from the relationship completely. He obtained employment in Switzerland and went back there in early 2011. He has not returned to Australia since that time.

13The wife was left to manage financially as best she could. She did so by obtaining employment and later acquiring an interest in two other Company P franchises. Again, she entered into these ventures through her family trust. She is still involved in these franchises, one of which is more successful than the other.

14The husband is now 55, and the wife is 54. They have been separated for approximately five years. They divorced in early 2013.

15The parties' children are now adults.

16The wife and the parties' children live in Perth. The wife proposes to continue to live here permanently. As indicated above, the husband lives in Switzerland and seems to have no intention of returning to Australia in the foreseeable future.

17The proceedings in this Court have been extensive and comparatively complex. By the time of the trial, the wife's claim was structured around orders that would enable her to retain the former matrimonial home in Perth. The home is encumbered by a debt originally associated with the acquisition of the first Company P franchise. The wife is prepared to take over the debt. The husband's case was that such a result would be too generous to the wife, and neither just nor equitable.

18The trial took place in September 2013. The husband was represented at trial by Ms G Anderson of Counsel. The wife was unrepresented. The trial ran for three days and was then adjourned for closing submissions.

19Closing submissions were heard in November 2013. At that time, I reserved my judgment.

General observations

20I am aware of the lengthy delay between the completion of the trial and the delivery of these Reasons. In Rollings & Rollings [2009] FamCAFC 87, the Full Court said at [67]:

The authorities … establish that if there is a delay between the conclusion of the hearing and judgment, presumably with contemporaneity of reasons, the delay is not in itself a ground of appeal and it is not … a denial of a fair trial and/or a miscarriage of justice. However the delay does mean that on appeal there has to be greater scrutiny of the findings made by the trial judge. As Giles JA said in Monie v the Commonwealth (2005) 63 NSWLR 729 at [3]: "extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge's findings or whether the trial judge's reasons are adequate".

21Similarly, the Full Court in Herridge & Handerson and Ors [2011] FamCAFC 156 said that the "real issue" may be –

… whether material findings of fact made by the trial Judge, and/or conclusions reached by him in reliance upon them, could be unsafe by virtue of the time which elapsed between the conclusion of the evidence and the delivery of judgment. That in turn is more referable to a consideration of contested findings or conclusions, and the evidence upon which they were, or could be based, or its absence. If those challenges were made out, the fact that the trial Judge's delay in delivery of judgment may have caused, or contributed to his error(s) is irrelevant. If they are not, it is difficult to see how his delay could change anything.

22Their Honours added at [22]-[23]:

If … findings of fact made by the trial Judge were not reasonably open to him, it does not matter whether that occurred because of the time his Honour took to deliver his judgment or for some other reason. That is also the case if such findings are shown to have been "unsafe"... If it is demonstrated that his Honour's discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enlivened. …

What we have said ought not be misconstrued, however. It is regrettable that judgment was not delivered more expeditiously than it was in this case. In a case where impressions of parties and witnesses clearly assumed considerable significance, a delay of eight months had the potential to diminish the clarity of the trial Judge's recollection of their evidence, and his assessment of its reliability. We shall subject the trial Judge's judgment to closer than usual scrutiny …

23I accept that the parties, let alone the Full Court, are perfectly entitled to subject these Reasons to "closer than usual scrutiny". Having said that, I would record the following:

a)The delay in the delivery of these Reasons arises from workload issues affecting the trial judge. It is not the fault of the parties or their legal advisers.

b)My recollection of the evidence has not been affected by the delay because I made full notes of all relevant evidence and submissions during the course of the trial, and because I have had the opportunity to listen to the audio recording of the evidence and submissions where clarification was required.

c)Notwithstanding the time that has passed since the completion of the hearing, neither party has applied to reopen; nor has either party applied for contested interim or interlocutory orders.

The wife was unrepresented

24Given that the wife was unrepresented, I was very conscious of the obligation upon the Court to provide a fair trial – for both parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:

a)procedural fairness was afforded to both parties;

b)the "mechanics" of the trial, and the right of the wife to cross-examine witnesses, were explained to the wife;

c)other relevant procedures were explained to the wife as they arose;

d)I explained to the wife that she had the right to object to inadmissible evidence, and explained to her – in very broad terms – the types of evidence that might be considered inadmissible;

e)where appropriate, I attempted to clarify the substance of the wife's submissions; and

f)where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines at [253]: see Guideline #9 in that paragraph.

25In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph are "no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on". His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".

26In the present case, the wife participated in the process fully. I have no doubt that she fully understood "what was going on" at all times.

Documents relied upon

27The wife relied upon the following:

a)her affidavits sworn 15 January 2013 ("WA1") and 29 May 2013 ("WA2");

b)her financial statements sworn 15 January 2013 and 19 June 2013; and

c)affidavit of [Mr H] sworn 24 June 2013.

28The wife's papers for the judge were provided to the Court on 23 September 2013.

29The husband sought to rely upon the following:

a)his affidavit and financial statement sworn 3 June 2013; and

b)affidavit of his father, [Mr Graf Snr], sworn 4 July 2013.

30As explained below, I refused to allow the husband to rely on his affidavit and his financial statement sworn 3 June 2013.

31The husband's papers for the judge were provided to the Court on 24 September 2013.

The parties' credibility

32As explained elsewhere in these Reasons, I am satisfied that the husband refused to travel to Australia for the trial and was wholly unwilling to present himself for cross-examination by the wife. In that regard, his conduct as a litigant has been reprehensible.

33During her closing address, Ms Anderson submitted that the Court should be sceptical of the wife's evidence. Among other things, she pointed to passages in WA2 in which the wife deposed to the following:

a)the husband has not lived permanently in Australia since September 2008 and she has been "the sole carer of the children" while the husband was in full time employment in Switzerland;

b)her "only asset" is Property A and that she does not have any assets in Switzerland; and

c)the husband "is currently paying $102 per month" by way of child support.

34According to Ms Anderson, the evidence revealed that the husband had returned to Australia between April 2010 and January 2011 (during which period he assisted with the care of the children), that the wife has pension entitlements in Switzerland and that the husband was in fact paying child support at the rate of $800 per month while the children were under the age of 18.

35Of course, part of the reason why the husband assisted with the care of the children between June 2010 and January 2011 was because he had broken the wife’s leg, thereby incapacitating her.

36I am not satisfied that the Court should be sceptical of the wife's evidence. I accept, however, that there were inaccuracies in her evidence and that she was prone to exaggeration from time to time – but, generally speaking, she was an impressive witness. Her responses to questions were appropriate and direct. She made concessions when it was fitting that she do so, and (by and large) she gave credit when it was due. She presented as candid and somewhat guileless. She showed emotion at times, and expressed frustration with the husband's behaviour and attitude (including his diffidence in relation to presenting himself to give evidence at the trial), but the sentiments she expressed were clearly genuine and her affect whilst expressing them was consistent with and unsurprising in the light of those sentiments.

37Overall, I am satisfied that the wife was a truthful witness.

Background, and relevant financial and litigation history

38In these Reasons, and unless otherwise indicated:

a)all statements of fact comprise findings of fact;

b)I have referred to the parties as the wife and the husband (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;

c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;

d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm");

e)references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or the "FLA";

f)references to currency are to Australian dollars (which have been referred to in preference to Swiss francs wherever the parties have referred to the Australian dollar equivalent to the Swiss franc amount); and

g)the parties agreed that, at all relevant times, one Swiss franc was roughly equivalent to one Australian dollar.

Brief chronological outline

39The husband was born in April 1960 in Germany. The wife was born in June 1961 in Switzerland. It follows that they are now in their mid-50s. They commenced living together in 1986, and married on 13 March 1987 in [D Town], Switzerland. They separated in April 2010 (according to the husband’s case) or January 2011 (according to the wife).

40They were divorced on 15 January 2013.

41There are two adult children of the marriage, [Child A] (who was born in October 1993) and [Child B] (who was born in December 1994). As at the date of the trial, Child A was living with the wife in the former matrimonial home; Child B was studying engineering at [University A], but was spending six months at [University B] (where he was living in a residential college).

42Both parties were educated in Switzerland. They lived there until the family migrated to Australia in 2005.

Switzerland – early days

43When the parties married, the husband was an [entrepreneur]. The wife was working in [an office]. Neither party had significant assets. Each had a car and savings. It is likely that the husband's car was more valuable than the wife's car and that he had more in the way of savings. Both parties' savings were used to pay for their honeymoon.

44The wife worked in paid employment until early 1993 (when she was pregnant with the parties' first child, Child A). Thereafter, she did not work in paid employment until after the parties migrated to Australia.

45The parties purchased their first home in D Town, Switzerland in or about 1997 ("the first Swiss home"). The purchase price of the first Swiss home was approximately CHF 1 million. The parties contributed approximately CHF 250,000 towards the purchase price, the vast majority of which was sourced in the husband's "pension fund" and "accumulated bonuses". The balance was borrowed and secured by a mortgage over the property.

46In the following year (1998), the parties sold the first Swiss home and purchased a new home, also in D Town ("the second Swiss home"). The first Swiss home was sold for CHF 1.25 million. The purchase price of the second Swiss home was CHF 1.5 million. Apart from the capital gain on the first property, approximately $50,000 from the husband's "new pension fund" seems to have been contributed to the purchase of the second Swiss home.

Company A is established

47In mid-1998, the husband left the firm at which he had been employed as an entrepreneur and commenced his own business through a corporate entity known as [Company A]. Company A was "engaged in the physical trading of [wood] with emphasis on [paper products]": see WA2, annexure 2.

48It is not in dispute that Company A was the husband's alter ego. He had complete control over it: see, for example, WA2, annexure 4.

49The husband started Company A with a loan of CHF 200,000 from his father. The loan had been repaid by the time the parties moved to Australia in 2005.

50At first Company A was a trading company. It later turned into a form of a broker, or intermediary between other traders.

51I shall refer to the fate of Company A later in these Reasons.

Initial plans to migrate to Australia

52It seems clear that the parties began making plans to migrate to Australia in mid to late 2003, if not earlier. In a draft statement of assets and liabilities provided to the parties' Australian migration agent in September 2003, the husband recorded that he (or perhaps the parties) had net assets of CHF 1,616,150. The statement records that the value of the "business" (presumably, Company A) was CHF 250,000: see WA2, annexure 1.

53At about the same time, the husband advised the migration agent that he intended to run "two different businesses" in Perth: he would continue with Company A and would buy "at least one Company P restaurant": see WA2, annexure 3.

54According to the wife, a "provisional business visa" was granted on 2 April 2004 and the parties and the children "entered Western Australia" [in] September 2004. The wife added that, after the grant of the provisional business visa in April 2004, the husband decided to buy a Company P franchise. He did so "in order to receive permanent residency after two years": see WA2 at [41].

55During her evidence, the wife confirmed that, initially, she did not want to leave Switzerland to live in Australia. The husband was the driving force behind the move. At one stage, he told the wife that if she was not prepared to relocate to Australia he would take the children and go without her.

Division of assets in Switzerland

56Clearly, problems had developed in the marriage. According to the wife, these problems had their genesis in the husband's determination to relocate the family to Australia. The wife did not want to leave Switzerland, and she did not want to sell the second Swiss home.

57The wife said, and I accept, that she had little knowledge of business and financial matters at that time. Further, she had no real understanding of the parties' financial circumstances. Relevantly, she knew nothing about the value of Company A.

58In or about November 2004, a decision was made to divide the parties' assets, and an agreement was prepared to that effect ("the 2004 agreement").

59The wife described the circumstances surrounding the preparation and execution of the 2004 agreement in WA2:

32.Prior to the sale of our family home in Switzerland I decided on 10 December 2004 to enter into a Marriage Contract (Prenuptial Agreement) (sic) in Switzerland for the period we are both living in Australia, subject to Swiss Law… with regards to our matrimonial assets and liabilities. The [2004 agreement] was signed and registered at the Council in [D Town], Switzerland and certified by [a lawyer]…

33.When I signed [the 2004 agreement] I received legal advice. The purpose of [the 2004 agreement] was that each party is solely liable for his own debts and assets.

34.At the same time, the lawyer… set up a second agreement between [the husband] and I for child support and spousal maintenance in the event I and the children would not remain in Australia. For two years [the husband] would support his family with monthly payments of CHF 4000.…

60The wife said in evidence that she had some knowledge of the value of the parties’ furniture and effects, but (as indicated above) she had no knowledge of the value of Company A; nor did she have "any idea of what the husband had". Still, she confirmed that she was "happy to receive some money from [the second Swiss home]".

61The 2004 agreement comprises annexure 5 to WA2. It contains the following:

1)… We are thinking of emigrating to Australia soon. We are about to sell our one-family house in [[D Town].

2)For the period in which we are both living in Australia we are making our matrimonial property rights subject to Swiss law.

3)We have not previously entered into any Marriage Contract…

4)For the period from today onwards, we are hereby agreeing, in relation to the Property Law conditions, on the matrimonial regime of the separation of property pursuant to Art 247 ff Civil Code.

5)We stipulate that apart from our household chattels, the one-family house in [[D Town]] and [[Company A]], we have already separated our assets under matrimonial law and that each person shall own what is in his or her name. Those points in relation to which the splitting of assets under matrimonial law has not taken place are regulated below under sub-para 6.

6)…

a)The household chattels and the office furniture which had a value when new of approximately CHF 160,000 and after depreciation have an estimated value of approximately CHF 60,000 shall become the sole possession of the wife.

b)The husband shall from today take as his sole possession, apart from the compulsory share belonging to his father as President of the Administrative Board of [[Company A]] and the office furniture mentioned [under sub-para (a) above], [[Company A]] that has a value of approximately CHF 80,000 with its assets and liabilities.

c)To equalise both assets mentioned [under sub-para (a) and (b) above], the husband shall pay the wife the sum of CHF 10,000 within 10 days of the sale of the house.

d)The net proceeds from the sale of the house shall, after repayment of the pension fund credit invested in the house, after payment of the property gains tax and all other taxes that will still be incurred until cancellation of the residency registration in Switzerland, as well as all other sales costs, shall be shared in equal part by the spouses.

62As envisaged in the 2004 agreement, the second Swiss home was sold in December 2004. The sale price was CHF 2.5 million. The net proceeds of sale (after discharging the mortgage and meeting the costs associated with the sale, including taxes) amounted to approximately CHF 1,215,600, or perhaps CHF 1,315,600: see WA2 at [37]. Of this sum, CHF 200,000 was paid to the husband's pension fund and $18,740 was used "for removal costs to Australia". The husband also purchased a wristwatch for $4800.

63According to the wife, just under CHF 10,000 from the net proceeds of sale of the second Swiss home was used to pay "taxes" and CHF 40,000 was used to pay "agent fees".

64In WA2 at [39], the wife said that "the remaining assets" from the sale of the second Swiss home "after paying back all outgoings" were approximately CHF 966,000.

65The 2004 agreement attributed the value of CHF 100,000 to Company A. It also took account of the retention of chattels by the parties. After allowing for an "agreed shortfall" of CHF 10,000 – which the husband apparently paid the wife – the remaining funds were divided so that the husband received CHF 459,844 and the wife received CHF 469,844. According to both parties, this was intended to reflect an equal division of the parties' property.

66These funds were paid to the to the parties' respective accounts on 11 January 2005. It is clear, however, that the parties did not separate.

67The wife said in evidence that, notwithstanding the arrangements reflected in the 2004 agreement, the husband did not relinquish control of Company A.

68In his affidavit sworn 4 July 2013, Mr Graf Snr said that he "took over" the shares of Company A on 31 December 2004. Attached to his affidavit is a share purchase agreement entered into between the husband and his father on 29 December 2004. Pursuant to the agreement, Mr Graf Snr purchased 100 "bearer shares" in Company A with a nominal value of CHF 1000 each. Thus, the total purchase price was CHF 100,000. Although the transfer of the shares was to take place immediately, the purchase price was not required to be paid until 29 March 2005.

69According to Mr Graf Snr, the purchase price for the Company A shares was set off against the amount of CHF 200,000 which the husband borrowed from him shortly before 29 March 2005. In other words, the husband's debt to his father was effectively CHF 100,000 from that time.

70Mr Graf Snr said that the husband repaid him CHF 70,000 in or about September 2006, leaving a balance outstanding of CHF 30,000 – which has since been repaid. Mr Graf Snr could not recall the date upon which the final CHF 30,000 was paid.

Migration to Australia

71It is clear from the terms of the 2004 agreement that the relocation to Perth was anticipated. Indeed, and as explained by the wife, it was precisely because of the proposed relocation that the 2004 agreement was entered into.

72In the early part of 2005, the husband transferred approximately $1 million from Switzerland to Australia. The source of these funds was the subject of disagreement between the parties.

73In the chronology attached to his papers for the judge, the husband asserted as follows:

1 April 2005: Husband gets a loan from his father equal to $200,000 to buy [Company P [Suburb M]] and in return husband transferred [[Company A]] to father for the loan.

74This assertion appears inconsistent with other evidence discussed in these Reasons. It is also inconsistent with his father's evidence. I am not satisfied that it accurately records the events as they occurred.

75Annexures to WA1 and WA2 reveal the following:

a)The husband transferred a total of $1,001,050 (less relatively modest fees) from Switzerland to Australia between January and March 2005. Included in this sum was CHF 120,000 which the wife transferred to the husband (in Switzerland) on 29 March 2005 (see below). These moneys came from Zürich Life Insurance Switzerland. The husband's transfers to Australia in this period were as follows:

13 January 2005	$20,000
19 January 2005	$477,050
29 March 2005	$504,000
Total:	$1,001,050

b)The wife transferred a total of $532,000 (less relatively modest fees) from Switzerland to Australia in September and October 2005. In WA1 at [16], the wife described these moneys as coming from "my own savings". She said the moneys were used to assist with the purchase of the former matrimonial home in Property A (see below).

c)The husband transferred a further amount of $10,000 (less minimal fees) from Switzerland to Australia in January 2006. Unlike the previous transfers, this transfer was described as "transfer salary part 1".

76In a "Personal Financial Statement" prepared in February 2005 as part of arrangements associated with the purchase of Company P Suburb M (see below), both parties certified that the husband had a total of $900,000 in bank accounts, together with $5000 in cash. No other cash assets were revealed: see WA1, annexure 7. This was prior to the transfer of $504,000 from Switzerland to Australia on 29 March 2005 (being part of the total of approximately $1 million transferred by the husband between January and March 2005). It follows that the figure of $900,000 was almost certainly intended to include moneys in both Australia and Switzerland. I note that the wife annexed the same document to WA2 (see annexure 13), but omitted the final page – which bears her signature as well as the husband's signature.

Arrangements after arrival in Australia

77The parties commenced living in Australia in January 2005.

78Initially, they lived in rented accommodation in [Property B]. The husband’s case was that they spent approximately $50,000 on rental payments. The parties also purchased motor vehicles: a [Mitsubishi Pajero] (costing $54,000 or thereabouts) and a [Volkswagen Golf GTI]. The husband had suggested that the purchase price for the Volkswagen Golf GTI was $19,000. In reality, it was approximately $47,000: see WA2, annexure 14.

79In January 2005, very shortly after the parties commenced living in Australia, the parties arranged for the incorporation of [N Pty Ltd] ("NPL"). They also arranged for the establishment of the [Graf Family Trust], of which NPL was to be the trustee. NPL and the Graf Family Trust were controlled by the husband.

80Child A and Child B were enrolled in independent schools upon their arrival in Australia. Child A attended [School A] and Child B attended [School B]. It was arranged that the school fees would be paid from Switzerland, via Company A, with the "assistance" of the husband's father. I shall discuss this arrangement in more detail below. The wife said that the children's school fees totalled approximately $42,000 per annum.

Company P Suburb M

81In February 2005, a Company P franchise in [Suburb M Shopping Centre] ("[Company P Suburb M]") was purchased. The purchase was effected through NPL as the trustee of the Graf Family Trust. The purchase price was $650,000. The husband’s case was that he borrowed $200,000 from his father to assist with the acquisition. The balance of the purchase price came from his share of the moneys payable to him pursuant to the 2004 agreement.

82According to the wife, Company P Suburb M was purchased by the husband (through NPL). She did not approve of the purchase and did not sign the relevant purchase agreement: see WA2, annexure 11. The funds for the purchase ($650,000) were borrowed by NPL from the NAB by way of a "Business Mortgage Fixed Rate Interest Only Loan". The loan was provided in late March 2005, shortly before the settlement date for the purchase of Company P Suburb M: see WA2, annexures 11 and 12.

83Stamp duty of $28,800 was paid in respect of the purchase of Company P Suburb M: see WA2, annexure 11. It seems that other amounts were also required to complete the purchase – including approximately $3000 for "extra stock", approximately $15,000 for a "two speed oven" and $5500 in respect of a "transfer fee": see WA2, annexure 14. It follows that the total purchase costs for Company P Suburb M were approximately $711,000.

84The wife was of the view that the husband paid far too much for Company P Suburb M.

85The wife said that the husband opened a term deposit account on 24 March 2005, containing $670,000. She asserted that "this was the security against the business loan for ([Company P Suburb M])": see WA2 at [51].

86On 25 March 2005, the wife received CHF 122,385, comprising half of the parties' "joint life insurance" policy: see WA2 at [52]. Clearly, these moneys were paid to her in Switzerland and were in addition to the CHF 469,844 she received pursuant to the 2004 agreement and as a result of the sale of the second Swiss home. Equally clearly, the husband would have received the same amount.

87The wife then transferred CHF $120,000 from her Swiss account to the husband's Swiss account. The transfer occurred on 29 March 2005. On the same day, the husband transferred $504,000 to his account in Australia. Of this sum, $500,000 was placed in term deposits.

88In late April 2005, the husband prepared a document purporting to deal with the "current status" of financial transactions involving the parties. The document is difficult to follow, but suggests that the CHF 120,000 which the wife transferred to the husband in Switzerland on or about 29 March 2005 was for the purpose of repaying him for his contribution to the purchase of the Volkswagen Golf GTI, paying for half of the lease payments for the Property B and acquiring a 20% interest in NPL (or, perhaps, Company P Suburb M): see WA2, annexure 14.

89The husband’s case was that Company P Suburb M generated a good income, from which the family was able to live well. In approximately September 2006 he repaid his father $70,000 of the $200,000 then allegedly owing. From approximately 2009, however, the business was adversely affected by a substantial rental increase, from $120,000 to $200,000". Thereafter, the expenses associated with the business continued to increase but its turnover did not. It ceased to generate a profit.

90The wife disputed that Company P Suburb M provided a good income for the family. She said, and I accept, that the business covered the family's living expenses in Australia, but that additional expenses were usually paid directly from Switzerland.

91In March 2007, the business loan was reduced to $530,000, after the transfer of $120,000 from an account in NPL's name: see WA2, annexure 24. The loan was later increased to $595,000. As discussed below, the loan was secured against the parties' home.

92It seems clear that there were difficulties associated with the manner in which Company P Suburb M was being run. According to the wife, the husband did not put much effort into running it. During cross-examination, she said that the husband seemed more interested in playing golf than going to the business premises of Company P Suburb M and working there.

93In July 2006, Company P Head Office wrote to the husband expressing concerns about the manner in which Company P Suburb M was operating and the husband's ability to successfully operate a second Company P franchise (namely, [Company P Suburb N] – which is discussed below): see WA1, annexure 8. Among other things, Company P Head Office wrote:

There exists a lack of urgency in the store ([Company P Suburb M) and a feeling of low morale and the feeling that the store lacks proper organisation resulting in a lack of forward preparation and planning.

[Mr Graf], the above indicates to me that at this point in time we do not believe you have built up enough experience and knowledge within food service to be able to operate another store. As we have indicated we are prepared to help you rectify these deficiencies but I feel to retain ownership of [[Company P Suburb M] and opening [[Company P Suburb N]] will be both detrimental to you and the Company P brand…

94As explained later in these Reasons, the husband left Australia in September 2008 to return to Switzerland. He had been offered a well-remunerated job in Switzerland, which he was not prepared to reject. He did not return to Australia until April 2010. It follows that the husband was not directly involved in the running of Company P Suburb M after September 2008.

95The wife assisted in the running of Company P Suburb M, and was primarily (if not solely) responsible for managing the business after the husband left in September 2008. According to the wife, Company P Suburb M "paid for the mortgage and living costs for me and the children in Australia", but she did not draw a salary (save for a very modest wage – totalling approximately $5500 – during the 2008 financial year).

96It appears that the husband drew a salary of approximately $53,500 from Company P Suburb M during the 2008 financial year.

97Company P Suburb M closed in April 2010. It was not in dispute that there was no option but to close it, in part because the premises in which it had been conducted were no longer available (or, perhaps, reasonably affordable). It follows that the parties' total investment in Company P Suburb M was lost. The $595,000 loan remained unpaid.

98Originally, the intention had been to relocate the franchise to another location (preferably, in the CBD). Unfortunately, the parties were unable to arrange the relocation prior to the closure of Company P Suburb M.

Property A

99The parties purchased a residential property at [Suburb A] ("[Property A]") in October 2005. It was registered in the names of the parties as joint tenants.

100The purchase price for Property A was $1,055,000. The parties each contributed approximately one half of the purchase price. The funds came from the moneys they had received or retained pursuant to the 2004 agreement. A letter dated 31 October 2005 from the National Australia Bank to the parties confirms that the "source of funds" for the purchase of Property A comprised accounts in the parties' individual names. $519,585 was withdrawn from each party's account: see WA2, annexure 17. The wife said that she advanced 50% of the purchase price for Property A from her own savings: see, for example, WA2 at [57].

101Documents attached to WA2 reveal that the wife transferred $522,000 from her Swiss account to her Australian account on 27 October 2005, immediately before the National Australia Bank withdrew her half share of the purchase price on 31 October 2005 (as described above). The documents also reveal that the wife transferred $10,000 from her Swiss account to one of the husband's Australian accounts on 5 September 2005. The transfer was described as comprising the deposit for Property A: see annexure 17.

102Although Property A was purchased on a cash basis, it was immediately used as security for the NAB business loan relating to Company P Suburb M (which had previously been secured against the term deposit – in the husband's name – containing approximately $670,000). As will become apparent, it is likely that the moneys in the term deposit were contributed towards the purchase price of Property A.

103The stamp duty associated with the purchase of Property A would have been something in the order of $45,000. Neither party identified the quantum of the stamp duty or explained how it was paid.

104As indicated above, the business loan was originally for $650,000. By May 2011, the amount owing was $595,000. In that month, NAB confirmed that, given the closure of Company P Suburb M, it would not extend the facility. The wife then arranged for the loan to be converted to a home loan securing the advance of $595,000.

105The home loan is dated 10 August 2011. It records the husband as the borrower and the wife as the guarantor of the loan. The term of the loan is 30 years. The monthly repayments of principal and interest amount to just over $4000.

106On a date which is less than clear, but which may have been in early 2006, renovations to Property A were carried out. They cost a total of approximately $30,000. It seems that the parties each contributed approximately one half of the cost of the renovations.

Summary in relation to transfers from Switzerland to Australia

107As explained above, the husband transferred a total of $1,001,050 (less relatively modest fees) from Switzerland to Australia between January and March 2005. Included in this sum was CHF 120,000 which the wife transferred to the husband (in Switzerland) on 29 March 2005.

108The wife transferred $10,000 from her Swiss account to one of the husband's Australian accounts on 5 September 2005, and $522,000 from her Swiss account to her Australian account on 27 October 2005.

109Given that exchange rates for Swiss francs and Australian dollars were approximately equal at the relevant time, it is fair to say that the wife was responsible for approximately $652,000 of the moneys transferred from Switzerland to Australia (being CHF 120,000 plus $10,000 plus $522,000) The husband was responsible for approximately $881,000.

110Since each party received approximately $460,000 or $470,000 from the sale of the second Swiss home pursuant to the 2004 agreement, and each received approximately $120,000 from the joint life insurance policy in Switzerland, it seems likely that the husband did indeed receive an injection of $200,000 from his father to make up the total amount of approximately $881,000. In any event, during the course of her evidence the wife conceded that the husband borrowed $200,000 from his father.

111The evidence of the husband's father was that he provided a loan of CHF 200,000 to the husband on or about 23 March 2005 (in other words, immediately before the husband transferred $504,000 to Australia on 29 March 2005). Mr Graf Snr said that, in order to obtain the funds, he "took a mortgage on his house".

112In WA2 at [58], the wife suggests that the fate of some $670,000 held by the husband in the term deposit at the time of the purchase of Property A in October 2005 "remains a mystery". I am not satisfied that it does. It seems clear that the funds were used by the husband to pay his one half share of the purchase price of Property A. There is no evidence that the husband transferred significant funds from Switzerland to Australia after the end of March 2005. It follows that the only possible source of his contribution to the purchase price of Property A was the term deposit. This is so because the husband had used well in excess of $100,000 of the approximately $881,000 he brought from Switzerland to acquire a motor vehicle for himself and to pay rent and living expenses for himself and the family.

113Annexure 14 to WA2 sets out adjustments made by the parties between themselves to reflect the fact that CHF 120,000 (equating to $128,686) of the moneys that had been transferred to Australia by the husband to that point comprised funds provided by the wife. The effect of the adjustments was that –

a)the husband could not be regarded as having purchased the wife's car and having paid more than half of the rent from his own funds; and

b)the wife could be considered to have met the additional expenses associated with the acquisition of Company P Suburb M (including, for example, stamp duty, the "transfer fee" and the two speed oven) – and a small proportion of the purchase price of Company P Suburb M.

114In my opinion, the amount ultimately unaccounted for by the husband following the acquisition of Property A was, at the most, something in the order of $200,000. However, and as explained elsewhere in these Reasons, the husband transferred $70,000 from Australia to Switzerland on 20 September 2006: see WA2, annexure 23. I accept that these moneys were in partial repayment of the amount of $200,000 he had borrowed from his father. It seems likely, therefore, that the amount unaccounted for by the husband at that time was, in fact, a maximum of approximately $130,000. But in March 2007, the husband provided a lump sum of $120,000 to reduce the business loan relating to Company P Suburb M from $650,000 to $530,000: see WA2, annexure 24. This payment also reduced the amount unaccounted for by the husband in the early stages of the parties' life in Australia – to an amount of approximately $10,000.

115As noted above, the source of funds used for the payment of the stamp duty associated with the purchase of Property A is unexplained. It is likely to have come from funds controlled by the husband.

116I accept, of course, that the husband (or, more accurately, NPL as trustee of the Graf Family Trust) received income from Company P Suburb M, and that he also received income from Company A. The reality is, however, that the vast majority of the funds transferred from Switzerland during 2005 have been accounted for.

117The above analysis can be approached in a different way. If the arrangements between the parties themselves are ignored, it is apparent that the total amount transferred to Australia in 2005 was $1,533,050 or thereabouts (being $1,001,050 plus $10,000 plus $522,000) – see paragraphs 107 and 108 above). This was disbursed as follows:

Purchase of motor vehicles	E	$100,000
Rent	E	$42,000
Additional expenses relating to purchase of Company P Suburb M	E	$50,000
Purchase of Property A	$1,055,000
Stamp duty relating to purchase of Property A (approx.)	E	$45,000
Loss on the sale of Company P Suburb N	E	$30,000
Lump sum repaid to husband's father	$70,000
Lump sum paid to reduce business loan	$120,000
Total:	E	$1,512,000

118Even if I am wrong in relation to some of the above expenses, and even when regard is had to the income derived from Company P Suburb M, Company P Suburb N and Company A, it is clear that the vast majority of the moneys brought into Australia by the parties have been accounted for. This proposition is reinforced when it is noted that the expenses listed do not include the parties' living costs.

Company P Suburb N

119In November 2005, a second Company P franchise was purchased – this time in Suburb N ("[Company P Suburb N]"). The purchase price was $650,000. The purchaser was [S Pty Ltd] as trustee for the [Graf-Salzmann Family Trust] (known later as the [Salzmann Trust]) ("the wife's Trust"), being entities controlled by the wife.

120The whole of the purchase price of Company P Suburb N (being $650,000) was borrowed. The borrowings were secured against Property A.

121Stamp duty of $28,000 or thereabouts was paid in respect of the purchase.

122The husband was not involved in any aspect of the running of Company P Suburb N, which appears to have been the wife's responsibility.

123Company P Suburb N was sold in mid-2006, some eight months after it was purchased. The sale price was $650,000. In other words, Company P Suburb N was sold for the same price as that for which it was purchased. The loan (which had been secured against Property A) was discharged. Overall, the sale generated a loss of approximately $30,000. The husband's case was that the loss was "covered by Company P Suburb M". As discussed elsewhere in these Reasons, however, the fact that the loss may or may not have been met from income derived from Company P Suburb M has little bearing on the core issues in these proceedings.

Fashion business

124In late 2007 or early 2008, the wife purchased a fashion business in [Suburb C]. The purchase price was approximately $55,000. It seems that these moneys were borrowed by the wife through the wife's Trust: see WA2, annexure 26.

125The fashion business closed in approximately September 2009.

The husband returns to Switzerland (first time)

126In approximately 2007, the parties spoke about returning to Switzerland. After having received a job offer in approximately May 2008, the husband travelled to Switzerland in late September or early October 2008 to take up the offer. Initially, the husband stayed with the wife's parents. Thereafter he rented an apartment. The wife and the parties' children remained in Perth.

127The husband was well paid while he was in Switzerland. He received a package totalling CHF 180,000 per annum.

128In or about April 2009, the wife visited the husband in Switzerland.

129The wife and the parties' children became Australian citizens in May 2009. According to the wife, the husband could not obtain Australian citizenship because he had not spent sufficient time here and hence did not meet the relevant criteria.

130According to the husband's chronology, his contract with his Swiss employer ended on 30 September 2009. However, he stayed in Switzerland until April 2010.

131It is unclear what the husband did in Switzerland for the period of approximately six months between completing his contract of employment and returning to Australia. I am satisfied, however, that he was not directly involved in the running of Company P Suburb M during that time (or, indeed, throughout the period of approximately 18 months that he was in Switzerland). It is likely that he attended to Company A’s affairs.

The husband returns to Australia temporarily

132The husband returned to Australia in early April 2010 to deal with issues surrounding the closure of Company P Suburb M.

133After his return, the husband lived in Property A with the wife and the children. According to the husband's chronology, he regarded himself as being separated from the wife at that time.

134After the closure of Company P Suburb M, the wife obtained employment at [Atlas Holidays] (["Atlas"]). Her annual salary was approximately $37,000. She worked there from April 2010 to June 2011.

135The only funds remaining after the closure of Company P Suburb M comprised an amount of approximately $60,000 – half of which the wife transferred to her personal account. The other half was transferred into an account conducted by the wife's Trust, but associated with the fashion business. The transfers occurred in April and May 2010. The wife said that the parties initially agreed that she should receive these moneys "in lieu of … not receiving any wages or superannuation for working in the business for approximately 6 years while bearing the financial and physical responsibility for [Company P Suburb M]": see WA2 at [83]. She also said that a total of approximately $22,000 from these moneys was used to pay the parties' 2009 tax assessments (being $7730 in respect of the husband's assessment and $14,645 in respect of the wife's assessment): see WA2, annexure 31. The wife used the balance to support herself and the children.

136On 3 June 2010, the husband (through NPL) wrote to the wife demanding repayment of the $60,000 removed from the NPL accounts in April and May 2010.

137Eventually, and after having been accused by the husband of being "a thief", the wife arranged for approximately $32,000 to be paid to him. This comprised the net amount remaining from the $60,000 after payment of the parties' 2009 tax assessments and after an agreed allowance of $6000 to the wife as "a wage". The $32,000 was paid on or about 21 June 2010. By that time, the husband had taken steps to prevent the wife having access to his and NPL's accounts.

138Clearly, the parties' relationship was under considerable strain at this time.

139During the period from early April 2010 to January 2011 (when the husband returned to Switzerland – see below), he or NPL "paid the business loan repayments and daily living costs for himself, the children and [the wife] from the Company A account from Switzerland": see WA2 at [88].

The husband injures the wife

140In WA2 at [89], the wife deposed:

In 29 June 2010, [the husband] assaulted me and smashed my leg by jumping on it. I was hospitalised with a serious broken leg and I was incapacitated for at least three months. I could not work and had no income. I did not press charges because I was frightened of [the husband] and he threatened to divorce me if I said anything.

141The wife's statement to the police (see WA2, annexure 37) contains the following:

6.My husband and I consistently argued over money for many years and this was the main stress on our relationship and he just never wanted to talk about it.

…

16.[On] 29 June 2010, it was about 7 p.m. or 8 p.m., after we'd eaten dinner and the children were upstairs when I confronted my husband again about money.

17.My husband never liked talking about money and this frustrated me because he just didn't want to talk, so I became very angry and through the contents of my glass of wine in his face.

18.He got up and said he will show how I treated him to our children and he went to walk out of the dining room.

19.He would always use the children against me when it came to us arguing.

20.I didn't want our children to know our problems as this did not concern them directly.

21.I stood in front of the door, which was closed at the time, with my legs out so as to stop him from going past me.

22.He tried over and over, back and forth, to pass me and I held my hands and legs out wide, telling him that he would not go.

23.Then all of a sudden he smashed me with one of his legs, by that I mean he made one movement with one of his legs and in a kicking like motion went down on to my left leg.

24.He kicked me with such force that I heard a huge cracking sound and fell to the floor.

25.I was in a lot of pain and couldn't move.

142After inflicting the injury on the wife, the husband took her to Fremantle Hospital. The wife did not tell the staff at the hospital how the injury had occurred. She said that she was in shock, and too embarrassed to do so.

143The wife did not make a complaint to the police about the incident until after the husband had left Australia in January 2011.

144After the wife was incapacitated as a result of the injury, the husband replaced her at Atlas on a casual basis. He worked there for approximately two months, and then worked elsewhere until he returned to Switzerland. He provided very modest financial support for the wife during this period. On the other hand, the wife conceded that the instalments in respect of the loan secured by the mortgage encumbering Property A continued to be met after Company P Suburb M was closed, including while each worked at Apollo. The wife accepted that the only source of funds to meet these payments was located in Switzerland.

145The husband's case was that he did not assault the wife as she alleged. In his chronology, he spoke of the wife "breaking her leg" – but he added:

I am not aware of what [the wife] has reported to the police regarding the incident when she broke her leg. I believe that I have a real risk of being arrested if I travel to Australia. I cannot take a risk of coming to Perth for a trial.

146I am satisfied that the husband did, indeed, break the wife's leg in the circumstances she has described in her affidavit material, in her statement to the police and in her oral evidence. She was cross-examined on the subject in detail. She was an impressive witness. She made concessions when it was appropriate for her to do so, and (by and large) she gave credit when it was due. She remained calm, although she (understandably) became distressed at times – particularly when describing the physical suffering she endured as a result of the injury inflicted on her by the husband. At such times, her vulnerability, anguish and feelings of disillusionment stemming from the husband's refusal to accept responsibility for his actions were clearly apparent. I am more than satisfied that the emotions she displayed were genuine and that her evidence was reliable and unadorned. She presented as sincere, open and balanced. Cross-examination did not succeed in diluting or diminishing the impact or reliability of her evidence in any way; indeed, it simply served to reinforce her candour. As I have said, the wife was a truthful witness.

147I recognise the gravity and significance of the finding I have made in the previous paragraph, but I am wholly satisfied (on the balance of probabilities, but recognising the seriousness of the finding) that the assault occurred as the wife described it.

148In Briginshaw & Briginshaw (1938) 60 CLR 336 (at 362-363), it was held that the standard of proof in civil cases is on the balance of probabilities, but with due regard being had to the nature of the issue involved – so that the "…seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal".

149I am fully aware of the nature of the issues involved in the present case, and the seriousness of the allegation made by the wife. I do not regard an occurrence of the given description (namely, a husband viciously assaulting a wife in the midst of an ugly quarrel taking place when stresses in the parties' relationship are at their most intense, and when they are effectively living separately and apart under the one roof) as being inherently unlikely in the circumstances of this case. The gravity of the consequences flowing from a finding that the husband has in fact assaulted the wife in the manner she has described are not such as could fairly deflect me from reaching the conclusion that I have. After all, the husband is not (yet) facing any form of criminal or civil sanction. The consequences flowing from the finding that I have made will become clear during the course of these Reasons, but to the extent that the finding may affect my ultimate conclusion as to the issue of property settlement, that consequence is not so grave or serious as to cause me to shrink from recording that the matter has been proved to my reasonable satisfaction.

150The finding regarding the husband's assault on the wife is unrelated to any form of punishment of the husband in any commonly accepted sense. It is no more and no less than an integral part of the factual matrix in which the case has developed and been presented; it is embedded within the exercise upon which the Court must embark when determining the issue of property settlement.

151In the end, though, it is fair to say that what counts is not the finding itself, but what the Court does with it.

152Notwithstanding the serious injury inflicted upon her by the husband during the assault, the wife's evidence was that she did not regard the marriage as being over until very early 2011. She said that she was required to go to hospital at that time for further treatment, but the husband "didn't care". She then realised that the marriage had broken down irretrievably.

153Although little turns on it, I am satisfied that there had been serious and enduring difficulties in the parties' relationship since at least 2004. I accept that the wife wanted to believe that the marriage could be resuscitated at all times until late 2010 or early 2011 but, in my opinion, her view in that regard was unrealistic. The husband had effectively left the marriage when he returned to Switzerland in September or October 2008. Still, the wife said, and I accept, that when the husband returned to Australia (and to Property A) in April 2010, she told him that he was to live in the guest room – but he did not accept that arrangement. Later, after the husband had broken the wife's leg, the parties shared the guest room (which was on the ground floor) because the wife could not climb stairs and because the husband was caring for her. The wife added, and again I accept, that the husband asked her to forgive him for injuring her and that, at that stage, she was prepared to do so. She loved him and, as she explained, "did not want to be left by herself in Australia". I am satisfied, however, that the husband assisted the wife to show contrition for having injured her so grievously, but that he was unable to sustain that mindset (or persevere with his pretence of compassion for the wife and remorse for having maimed her) for longer than five or six months.

The husband returns to Switzerland permanently

154In early 2011, the husband returned to Switzerland, where he commenced employment as a sales manager for [R Company] in D Town. He has been employed by R Company since that time.

155The husband's case was that Company A was "a business competitor" of R Company. R Company would not permit him to work “for” Company A.

156The husband has not returned to Australia since January 2011. I find that he has no intention of returning to Australia at any time in the foreseeable future, and that he will not be returning to Australia to live.

The husband divests himself of Company A

157As explained above, the husband had borrowed $200,000 from his father to assist with the purchase of Company P Suburb M (or, perhaps, with the purchase of Property A) In approximately September 2006, he repaid his father $70,000: see WA1, annexure 11. He later made further payments to his father, totalling approximately $30,000. In other words, he reduced the debt to his father from $200,000 to approximately $100,000.

158The husband had asserted that, in order to discharge the remaining debt, he transferred his shares in Company A to his father. They allegedly agreed between themselves that Company A was worth $100,000 and that the transfer of the shares would serve to discharge the debt. The husband's case was that Company A then employed him as "a consultant", and that he earned $20,000 in this role in 2010.

159According to the wife, Company A was wound up in June 2011 – after she commenced proceedings in this Court.

160The wife's case is that the husband never relinquished control of Company A, and that he continued to be primarily responsible for the conduct of its affairs throughout the period from 2005 to 2011. She asserted that the husband's father was no more than a figurehead for Company A, that he knew very little about the business and that he did not even have an email address associated with the company. She also asserted that the husband's father remitted the salary notionally payable to him (being CHF 70,000) to the husband in the form of payments for the children's school fees, gifts and the like. For example, he transferred $7500 to the husband in Australia in November 2006, and a further $5000 to the husband in Australia in the following month. Further, the wife argued that the husband received additional financial benefits from Company A during the relevant six-year period.

161In cross-examination, the wife said that the husband continued to run Company A throughout the period he lived in Australia. He had told her, before the parties left Switzerland, that it would be "easy" to run Company A from Australia. He did so by ringing Company A's clients in the evening (Australian time). He also undertook overseas travel to both generate work and build up the business, although he did not discuss these matters in any detail with the wife. I accept the wife's evidence in this regard.

162The wife conceded that it was appropriate for the husband to continue his involvement with Company A, and that the family received benefits from that involvement.

163The wife said in evidence that her father-in-law's salary was fixed at CHF 70,000 to enable him to preserve benefits associated with his Swiss pension. Most of this was sent to Australia in the form of the payment of the children's school fees and the meeting of other expenses for the benefit of the husband or the family. I accept her evidence in this regard, and that the arrangements were made to assist the family to save taxes by, among other things, paying the children's substantial school fees in the most tax effective manner possible: see WA2 at [43].

164In his trial affidavit at [7], Mr Graf Snr asserted that he was the "owner" of Company A from 2005 and that he paid himself a gross salary of CHF 70,000 per annum (together with CHF 3000 per annum "for acting as a Director of the Board") for the years 2005-2010. In 2011, when Company A was liquidated, he received a gross salary of CHF 55,000 (subject to certain deductions).

165Mr Graf Snr said that the husband "was paid as a member of the Board". He received a Director's fee of CHF 24,000 per annum (subject to social insurance and income tax) from 2005 to 2008. He received no remuneration for the next two years (2009 and 2010). In 2011, he received a "consultant fee" of CHF 10,000.

166In his affidavit at [12], Mr Graf Snr deposed:

When [Company A] was liquidated in [August] 2011 I took out my assets in the sum of CHF 83,717 and CHF 16,700 at the time of liquidation. In total I received CHF 100,417.

167At [16], Mr Graf Snr deposed:

From my income from [Company A] I have paid the following sums of money:

a)I paid the school fees for [[Child A]].

b)…

c)Her school fees increased from about $14,000 for Year 7 to about $20,000 for Year 12.

d)I paid for the school fees for [[Child B]].

e)…

f)His school fees increased from about $14,000 for Year 7 to about $20,000 for Year 12

168The wife also alleges that the husband had funds available to him which were never disclosed: see WA2 at [131] and [132] and annexures 58 and 59.

Company A and Mr Graf Snr

169As indicated above, the wife did not accept that Mr Graf Snr "owned" and ran Company A after the husband transferred shares to him in early 2005. She cross-examined him about the subject. He gave his evidence by video link from Switzerland.

170Mr Graf Snr was aged 79 at the time he gave evidence. He presented as self-assured and rather authoritarian. It was quite apparent that he had little respect for, or patience with, the wife – who he saw fit to insult on at least one occasion. In spite of his obvious intelligence and commercial acumen, he was a less than impressive witness. He tended to be argumentative and obdurate. At the same time, he could be unnecessarily circumspect or non-responsive when clear answers were called for. I am satisfied that he was a partisan witness, who was prepared to say whatever he perceived was likely to assist his son's case.

171The wife asked Mr Graf Snr about the various tasks involved in running Company A, and the people with whom he dealt in that role. Beyond completing approximately four invoices per year, the work he did for the company was minimal. Indeed, even including the preparation of the four invoices, the work he did was minimal. He admitted that he did not have direct contact with Company A's clients. He could not explain satisfactorily how its commission was calculated. I am satisfied that he had little knowledge of Company A's core business activities and that what little he did for it was at the direction of the husband.

172Mr Graf Snr said that the husband was "a consultant", who helped him run Company A. The husband was the person who "knew the people" with whom Company A did business.

173I am not satisfied that Mr Graf Snr ever "ran" Company A, or managed it in any relevant sense. I find that the husband never relinquished control of the company and that his father was never more than a cloak or false front disguising what both knew to be the true situation – namely, that Company A remained the husband's business.

174When asked why his salary was set at CHF 70,000 per annum, Mr Graf Snr explained that, among other things, he paid the children's school fees in Australia from these moneys. The husband's "director's fee" of CHF 24,000 was set because it was the precise amount necessary to maintain the husband's benefits pursuant to his Swiss pension fund.

175Suffice it to say that I am not satisfied that the financial dealings between the husband and his father were clear or "commercial" in nature. The husband continued to run Company A after the family relocated to Australia much as he had done before they left. Mr Graf Snr willingly adopted the role of "front man" for the business, which was conducted by the husband for the benefit of himself and the children. I find that the husband sought to place Company A beyond the wife's reach, as it were, from the time the parties entered into the 2004 agreement. Its true value was unknown to the wife and was never made clear to this Court. I have no doubt, however, that the husband continued to derive benefits from the enterprise throughout the period from early 2005 to August 2011 (when it was no longer necessary or appropriate for the husband to run it and it was liquidated).

Mr H's evidence

176Mr H swore an affidavit on 24 June 2013. He gave evidence by telephone link and was cross-examined by Ms Anderson.

177Mr H was Atlas’ Area Branch Manager when the wife, and later the husband, worked there. Shortly before Christmas 2011, Mr H had a conversation with the husband (in a social context) during which the husband "went to great length to explain what [[Company A]] was about, what he did and how successful it was". The husband "was proud of his company".

178For the purpose of Atlas’ records, the husband's email address was given as [[email protected]].

179Mr H was an impressive and credible witness. I accept his evidence without hesitation. During cross-examination, he rejected any suggestion that the husband may have been speaking about his involvement with Company A at some time in the past. Mr H said it was clear that the husband was saying that his involvement in the company was ongoing. He also said that the husband told him he was "going back to Switzerland to continue running the paper products business".

180Mr H's evidence supports the conclusions I have reached regarding the husband's ongoing control of Company A.

The wife commences proceedings

181In February 2011, about a month after the husband had left Australia to return to Switzerland, the wife sought legal advice. She had recently spent two days in hospital having metal plates removed from her leg and was clearly struggling financially and emotionally.

182The wife's parents visited her in March 2011 to assist her and offer her support. Her brother visited in the following month.

183The wife's brother paid for her to receive some preliminary legal advice. After she instructed solicitors in or about April 2011, she was required to deposit $5000 in their trust account.

184On 4 May 2011, the wife applied for a Violence Restraining Order against the husband. In the application, she asserted that the husband had broken her leg and that he was "blackmailing" and "trying to intimidate" her. From around that time, the husband ceased communicating with the wife – including in relation to issues concerning the children.

185The wife has been unable to serve the husband with the VRO application because he has not returned to Australia since it was filed.

186The husband also sought legal advice in 2011. Between February and November of that year, he paid the wife a total of approximately $10,000. He paid her a further amount of just under $4700 in 2012.

187The wife commenced proceedings in this Court in June 2011. In the following month, she was made redundant from her employment with Atlas. The wife continued to struggle financially and emotionally during the second half of 2011.

188At some time after she ceased working with Apollo, the wife commenced receiving Government benefits – which she used to support herself and the children.

189As at August 2011, the wife had savings of $45,000. She had already paid $5000 to her lawyers. By the date of the trial, she had paid her lawyers a total of $68,000. She had terminated their services, however, in late 2012 after receiving a costs notification. She felt she could not afford to continue to retain them.

The business loan is converted to a home loan

190By early 2011, when the husband left Australia permanently, the amount owing in respect of the business loan was approximately $595,000. The loan was in the name of NPL, but was secured by mortgage over Property A (which was owned by the parties jointly). The mortgage was based on guarantees provided by the parties for the payment of the loan by NPL.

191The business loan facility expired on 30 April 2011, following which the bank put pressure on the parties to repay the loan.

192Eventually, and after much negotiation between the parties' lawyers, the loan was refinanced. The husband became the primary borrower; the wife was the guarantor. The new loan was structured as an interest only home loan for $595,000. Funding was approved in August 2011: see WA2, annexure 52.

193The husband continued to meet the interest payments in respect of the loan until January or February 2012. He appears to have holidayed in Thailand in February 2012. According to the wife, he failed or refused to disclose financial details regarding the costs associated with the holiday.

194In September 2012, the wife was advised by the National Australia Bank that the home loan was in default and that legal action was imminent. As indicated above, the husband had ceased servicing the loan at the beginning of that year. The wife (who was guarantor for the loan) was unaware that the payments had ceased until she was contacted by the bank. By that stage, the arrears were approximately $6000.

195In November and December 2012, the wife was required to meet the instalments due in respect of the home loan (in spite of orders made on 9 May 2012 and 6 June 2012 to the effect that, as and by way of spousal maintenance, the husband was to pay all mortgage payments due and owing in respect of Wellington Street).

196Following a flurry of correspondence between the wife and the husband's solicitors, this Court eventually ordered that the wife be appointed sole trustee for the sale of the husband's Mitsubishi Pajero motor vehicle and that the proceeds of sale be used to service the home loan. The Pajero was sold in February 2013. The sale price was $24,000. Since then, the wife has been paying the instalments due in respect of the loan.

Wife obtains employment with Company T

197As described above, the wife was unemployed from July 2011. She eventually obtained employment with Company T, which she commenced on 1 March 2012. She continued to work there until 27 August 2012. Her wages were approximately $700 per week (excluding superannuation).

In the above formulation, we have referred only to domestic violence … but its application is not limited to that.

360The Full Court continued (at p 84, 294):

It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…

361In S & S (2005) FLC 93-246, the Full Court said at [65]:

The term "course of conduct" is a broad one. We do not think that conduct must necessarily be frequent to constitute a course of conduct, although a degree of repetition is obviously required.

362In G & G (2006) FamCA 877, Warnick J (sitting on appeal from a Federal Magistrate) accepted that two "matters of fact" must be established before behaviour such as family violence can affect a Court's assessment of the parties' respective contributions. Those "matters of fact" are as follows:

a)A relevant course of conduct towards the other party to the marriage.

b)The relevant course of conduct must be demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, and to have made his or her contributions significantly more arduous. Such conduct must also have had a discernable impact on the contributions of the other party.

363His Honour held that general statements to the effect that family violence has had or may have had a "significant adverse impact" or a "discernable impact" upon the contributions of the party subjected to it are inadequate to explain or justify practical weight been given to the factor. In other words, evidence of the relevant course of conduct and its impact upon the other party's contributions is crucial.

364His Honour also held that the correct approach to evidence of this nature is to make appropriate findings regarding –

a)the relevant course of conduct; and

b)its impact upon the party subjected to it ("the victim"),

in the context of determining whether greater weight should be given to particular types of contribution made by the victim than would otherwise be the case.

365As set out above, I have found that the husband violently assaulted the wife in June 2010. The evidence reveals that the incident occurred following a long history of disputes between the parties regarding financial matters. The husband had recently returned from Switzerland (where he had spent a period of approximately 18 months) to deal with issues surrounding the closure of Company P Suburb M. He was living with the wife in Property A, but regarded himself as being separated from her. The wife was experiencing financial difficulties and had obtained employment at Atlas to endeavour to alleviate them to some extent. At the same time, the wife had gained access to some $60,000 remaining from the closure of Company P Suburb M – as described elsewhere in these Reasons. The husband had commenced (or threatened to commence) legal proceedings against the wife to secure the return of the moneys. He was very angry with her for taking it, and had called her "a thief". There was enormous tension in the relationship as the bickering continued. It was abundantly clear from the wife's evidence that she felt frustrated with what she regarded as the husband's cavalier approach to his financial affairs and his obligations to his family. She also felt very considerable apprehension regarding her and the children's future and financial well-being. Looming over this already pernicious aggregation of stressors were the wife's disorientation as a result of having been excluded by the husband from his life and from what she perceived as the family's finances – and her acute resentment flowing from that exclusion.

366To the extent that I have not already done so, I find that the husband's behaviour towards the wife during the assault was violent and abusive. The assault itself was the culmination of an extended course of conduct on the husband's part. The wife said, and I accept, that he had sought to control her for many years, and that his behaviour (in particular, in the years after the family relocated to Australia) had caused her to be fearful for her and the children's financial security and for her future in the broadest sense. I am satisfied that he had unreasonably denied her the financial autonomy that she would or might have had if (to use Ms Anderson's words) the 2004 agreement had been carried out in substance instead of having been adhered to in form only. The continued intermingling of the parties' financial affairs after the family's relocation to Australia meant that the wife was entirely or predominantly dependent on the husband for financial support and was particularly vulnerable to the husband withholding or withdrawing that support – as he did, and did unreasonably.

367The wife persevered with the relationship after the family migrated to Perth, in spite of the fact that she was homesick and in spite of the husband's conduct towards her as described above and elsewhere in these Reasons. She explained that she did so because she wanted to continue to care for the children, and to do so within an intact relationship – and because she loved the husband. The husband's conduct towards her and her own fears and insecurities effectively paralysed her. It was never going to be easy for the wife to leave the relationship, or even to acknowledge that it had ended (as her opposition to the husband's initial divorce application illustrates). On the contrary, the wife's position is readily understandable. By way of illustration only, and without endeavouring to stretch the analogy to breaking point (given that it was not suggested that the husband engaged in serious violent assaults against the wife on other occasions during the relationship), I refer to Thackray CJ's recognition of the phenomenon of sensible and mature victims of serious family violence returning repeatedly to an unsafe domestic environment in the following passage from A & A [2011] FCWA 98 at [109]:

The fact [the victim] so often returned is not inconsistent with her claims of violence. On the contrary, the "cycle of violence" which sees victims repeatedly returning to the person who has assaulted them is well known.

368The wife was seriously injured as a result of the husband's assault. I am satisfied that the injury she sustained (and the husband's behaviour which led to it) made her efforts and ability –

•to care for herself and the other members of the family;

•to support and nurture the children;

•to keep house for the family;

•to work – at Atlas and in the home – efficiently and with focus in an attempt to improve the economic circumstances of the family; and

•to provide a happy, secure and supportive environment for the family in the broadest sense,

significantly more arduous than they ought to have been.

369Clearly, the wife was seriously physically impaired for an extended period after the assault. Thus, the husband's course of conduct culminating in the assault on the wife in June 2010 had a serious adverse impact on her contributions during that period and subsequently. Quite apart from the physical pain and discomfort experienced by the wife during and after the assault, the husband's conduct seriously and adversely affected the wife's confidence and self-esteem.

370In my opinion, the wife was entitled to expect that she would be free to perform her functions as homemaker and parent without the overlay of emotional stress and anxiety inevitably associated with the husband's behaviour to which I have referred. Generally speaking, the wife should have felt secure in the knowledge that the husband would support her in her homemaking and parenting roles, and not knowingly add to the obvious burdens associated with the running of the household and engaging in employment at Atlas.

371An assessment or analysis of the type undertaken by the Court under the general heading of the Kennon factors (for want of a better description) cannot and should not be attempted with some form of mathematical exactitude. The assessment or analysis in this regard is part of a broad discretionary or "holistic" exercise, and the evidence to which I have referred leads inexorably to a tilting of the scales in the wife’s favour. It is neither necessary nor principled to attempt to define the effect of that tilting with precision. Suffice it to say, however, that when all the evidence regarding the parties' respective contributions is taken into account, the allowance or adjustment to take account of the Kennon factors is comparatively modest.

372The wife has also been left with residual disabilities which cause her pain and distress, and which interfere with her enjoyment of life and certain aspects of her capacity to work. I accept, however, that these matters are more properly taken into account when considering the s 75(2) factors.

Conclusion regarding the parties' respective contributions

373The Court's assessment of the parties' respective contributions (particularly after a relationship lasting some 24 or 25 years) is not a strict mathematical or accounting exercise. Further, it is not always possible to balance "like with like", in that the parties' various contributions can have very different characteristics and may carry very different weight. Similarly, the timing of the forms of contribution can be telling. In a very broad sense, the exercise is what might be considered an imprecise, macrocosmic one – as opposed to a detailed, microcosmic analysis of the source and destination of each dollar passing through the parties' hands and their every action, inaction or reaction (however small or insignificant). As I have noted, "the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of [a] particular relationship": see Dickons & Dickons (supra) at [24]; see also Bolger & Headon [2014] FamCAFC 27 at [23] to [28]

374In all the circumstances (including the lengthy period of cohabitation and the period of approximately three or more years between separation and the date of trial), I conclude that between 60% and 65% of the overall property pool should be awarded to the wife on the basis of her contributions from the commencement of cohabitation to the date of trial, and the balance to the husband on the same basis. As it would be intellectually dishonest of me to choose either the higher or lower figure within the range I have specified, I shall fix the midpoint – being 62.5% – as being appropriate.

375In G & G (2004) FamCA 1179, the Full Court said (in relation to an exercise of judicial discretion such as that which I have performed in the previous paragraphs):

…[Words] will often (perhaps always) fall frustratingly short of an incontestable explanation for any particular exercise of discretion – or, for that matter, for a finding by an appellate court that a particular exercise was wrong. All the relevant factors can be described, with modifiers in abundance, but still the analysis will beg the question, "Yes, but why that figure and not another?" or "Why was that the range rather than some other parameters?"

The deficiency is unavoidable. When there are a number of "right" results available, the explanation for the choice of one over others can never be incontestable. Nor can the reasons for saying that a result is outside a range be beyond challenge. The very nature of a discretionary exercise that ascribes mathematical consequences to a batch of actions and events amenable only to descriptive evaluation, means that it is impossible to place beyond argument the explanation for all the steps to the ultimate selection of result. ...

(In) respect of virtually every exercise of discretion, by definition, it will not be possible to deliver a judgment which excludes reasoned argument that another result was available.

376For what it is worth, I concur with the Full Court’s view as expressed in the passage from G & G (supra) quoted above. The "balancing exercise" the Court must perform is rarely an easy or non-contentious one. It is also worth noting what Coleman J, sitting as a single judge exercising appellate jurisdiction, said in a well‑known passage from Steinbrenner & Steinbrenner [2008] FamCAFC 193:

Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.

Section 75(2) factors

377So far, in considering the question of property settlement, I have dealt with the identification of the parties' property and related issues. The Court has power to make an adjustment to a party's property settlement entitlement based on such contributions in order to take account of, among other things, both parties' respective means and needs. The Full Court has been critical of shorthand terms being used to describe this step in the property settlement exercise, preferring to refer to it simply as "the section 75(2) factors": see Clauson & Clauson (1995) FLC 92-596. In essence, section 75(2) is concerned with the process of arriving at a just and equitable result: see, in that regard, Waters & Jurek (1995) FLC 92-635.

378The difficulty a trial judge faces in determining which orders may be perceived to be just and equitable in property settlement proceedings involving property of comparatively modest value was recognised by the Full Court in Dow-Sainter & Dow-Sainter (1980) FLC 90-890 at 75,616:

Such situations are not uncommon in this Court being caused by the brutal and inescapable fact, that when two parties separate, property which may have allowed them together a reasonably comfortable standard of living, is simply not sufficient when divided.

379I accept that, arguably, there is not enough property to satisfy the legitimate needs and wishes of both parties. I will do the best I can, however, to the strike the balance the law requires of me.

380I turn now to consider the s 75(2) factors. The headings I have used are simply a shorthand way of referring to each relevant consideration. I have either not referred to, or only briefly mentioned, factors which have no or minimal relevance to the present case.

Age and state of health

381The parties are in their mid-50s.

382The wife suffers from back pain and complications arising from the injury to her leg caused by the husband. She said, and I accept, that she is in "constant pain". Although she is capable of carrying out normal, everyday activities and administrative and entrepreneurial tasks associated with the Company P franchises, she is not capable of doing arduous or even moderately demanding physical work.

383There is no evidence that the husband's health impacts or is likely to impact on his earning capacity.

Income, property and financial resources, earning capacity and capacity for employment

384Annexure 44 to WA2 comprises a certificate revealing that the husband's salary from R Company for the 2011 calendar year was CHF 150,190. He also received a bonus of just over CHF 21,000. It follows that his gross salary was just over CHF 171,000. After deduction of an insurance payment of approximately CHF 10,400, the husband's net salary was approximately CHF 161,000.

385According to the wife, R Company also pays 24% of the husband's salary towards his superannuation entitlements. In other words, approximately CHF 36,000 per annum is being paid towards the husband's superannuation (or something approaching $700 per week).

386The wife added that, according to the husband's Swiss Tax declaration for 2011, he also received a salary of approximately $10,000 from Company A and a "donation" (apparently from the husband's father) of approximately $71,000. Excluding the donation, the wife asserts that the husband's weekly income (in 2011) was approximately $3600.

387It appears that, at the time of the trial, the husband was renting an apartment in D Town, Switzerland. The term of the lease was expressed to be "indefinite". The "overall rent and ancillary costs" amounted to CHF 2600 per month: see WA1, annexure 15.

388As explained above, the wife is involved in the management and operation of Company P City Store 1 and Company P City Store 2. I am satisfied that she has the capacity to earn a reasonable if not substantial income from the two outlets.

389Ms Anderson submitted that the parties have similar incomes and similar earning capacities. I am far from satisfied that such is the case. Although the wife has an interest in the two Company P franchises, works in the outlets and derives income from their net profit, she has committed herself to significant financial liabilities in order to establish the businesses. As the parties' experience with Company P Suburb M and Company P Suburb N shows, there can be no guarantee that the franchises in which the wife is currently involved will be successful. Indeed, Company P City Store 2 has struggled in comparison with Company P City Store 2. I find that the husband's earning capacity is significantly greater than that of the wife, and that it will remain so for the foreseeable future.

390In this regard, I note the Full Court's observation in Clauson & Clauson (supra) at 81,910 (citing Best (1993) FLC 92-418):

It has long been recognised that in most cases the most valuable "asset" which a party can take out of the marriage is a substantial, reliable, income-earning capacity.

391There can be no doubt that the husband's income-earning capacity is both substantial and reliable.

Children under 18

392The parties' children are now adults.

Financial commitments

393There is no evidence to suggest that this is a relevant factor. It does not feature in the documents or submissions of either party.

Responsibilities to support any other person

394After the husband returned to Switzerland, the wife was primarily (if not wholly) responsible for the financial support of the children (who are now adults). In WA1 at [56], the wife said:

… I am paying for [the children's] living costs, food, University expenses, health insurances, dental, electricity, Internet, sometimes clothes and shoes, medicines, health care, fees and licences, toiletries and hairdressing. At the moment [the husband is] transferring pocket money monthly directly into the children's accounts. The children are using this money for the entertainment and holidays. I do not request any board money from them.

395Given that Child A and Child B are now adults, the wife no longer has the responsibility to support them – although she is happy to do so. There is no evidence that the husband is responsible for the support of anyone apart from himself. Like the wife, he appears to continue to provide some form of ongoing financial support for Child A and Child B.

Eligibility for pension, allowance or benefit

396The wife's superannuation entitlements are modest. She asserts that the husband's superannuation "will increase at the age of 65 to CHF $420,470" in accordance with his relevant Swiss policy: see WA1 at [79].

397The husband is contributing significant funds to his superannuation scheme in Switzerland. It appears that the contributions have risen from approximately $300 per week in 2011 to something approaching $600 per week, or even more, at the present time.

398Exhibit H1 comprises documents from the Swiss Compensation Office which reveal that –

a)subject to various actuarial considerations, and assuming the husband continues to remain insured and contribute to his pension scheme, he will receive a "maximal full pension" upon retirement (at age 65);

b)as at 14 August 2013, the "maximal full pension" upon retirement would have amounted to CHF 2,340 per month;

c)if, however, the husband had "a gap of 8 years" during which he failed to remain insured and/or contribute to his pension scheme, he would receive a reduced pension; and

d)the reduced pension the husband would receive in the circumstances described in (c) above comprises 82% of a full pension, or approximately CHF 1,900 per month.

399Exhibit W1 comprises similar information regarding the wife's Swiss pension entitlements. It reveals that, upon retirement (at age 64), the wife is likely to receive a pension of CHF 1,236 per month.

400Having regard to the evidence given by Mr Graf Snr and my findings in relation to the husband's control of Company A, it seems clear that the husband did not have "a gap of 8 years" during which he failed to remain insured and/or contribute to his pension scheme – although there may have been a gap of two years or thereabouts. In the circumstances, I find that the husband is likely to receive the "maximal full pension" of CHF 2,340 per month upon retirement, or something very close to that amount.

401In each case, the parties' pensions will be paid for life.

402In her closing address, Ms Anderson conceded that the husband's Swiss pension entitlements are approximately double those of the wife. She argued, however, that the difference in the parties' pension entitlements, although relevant, is not "overly significant". I disagree. The husband's Swiss pension entitlements comprise a substantial financial resource. The wife's entitlements are far less significant.

Reasonable standard of living

403The wife proposes to continue living in Australia. She wishes to continue to live in Property A.

404As I have indicated, the husband lives in Switzerland. He is living in rented accommodation. He does not intend to return to Australia in the foreseeable future.

405The wife has had to reduce her living expenses since separating from the husband. She has limited her purchases of clothes and shoes, reduced her entertainment expenses and avoided taking holidays "unless she has been invited by friends".

406According to the wife, the husband has been able to travel extensively (within Europe and, on at least one occasion, to Dubai and Thailand) since commencing his employment with R Company. She asserts that he appears to have significant amounts of money available to him during these trips.

407The husband is no longer meeting any of the wife's expenses; nor is he paying moneys in respect of the mortgage encumbering Property A. The children are adults and although he almost certainly provides them with financial assistance from time to time, he has no obligation to do so. Put shortly, he is able to retain his income and spend it as he sees fit for the purpose of maintaining his standard of living.

408The wife considers herself to be tied permanently to Australia. In closing, she said that she could not go back to Switzerland, and that to do so would be (in effect) calamitous for her from a financial point of view. Her intention is to focus on the Subway franchises in which she now has an interest, and to look for other franchise opportunities.

Maintenance in the context of education or retraining

409This is not a relevant consideration, and neither party suggested it should be taken into account.

Effect of orders on creditors

410This is not a relevant consideration, and neither party suggested it should be taken into account.

Duration of marriage and its effect on earning capacity

411I have discussed the financial history of the parties' relationship elsewhere in these Reasons. The length of the relationship, in itself, has not affected each party's earning capacity.

Need to protect party's role as a parent

412Child A and Child B are now adults. The wife emphasised her desire to continue to provide them with accommodation and support. The husband is also involved in the children's lives, and supports them financially to an extent that is less than clear. Overall, however, this is not a relevant consideration.

Cohabitation with another person

413According to the wife, the husband "is in a defacto relationship" with [Ms P]. There is no evidence of the financial circumstances relating to the cohabitation.

414The wife is not cohabiting with another person.

Bankruptcy provisions

415This is not a relevant consideration, and neither party suggested it should be taken into account.

Child support

416Although the children are now adults, the husband accrued a significant child support debt prior to the relevant child support terminating events. As at 8 March 2013, he owed $19,932 in respect of child support arrears: see WA2, annexure 78.

417The husband has challenged his liability for the above debt. The outcome of that challenge is unknown. The husband's challenge will run its course, but I do not regard this subject to be a relevant consideration in these proceedings (save to the extent that I have mentioned child support elsewhere in these Reasons).

Other relevant considerations

418There are no other facts or circumstances which the justice of this case requires to be taken into account.

Conclusion regarding s 75(2) factors

419In my opinion, the most significant of the s 75(2) factors are following:

a)the husband's greater earning capacity;

b)the possibility that the husband has additional, undisclosed property or financial resources (or, put another way, the overall uncertainty regarding the husband's true financial position); and

c)the imbalance in the parties' Swiss pension entitlements.

420I also bear in mind that the husband appears to be cohabiting with Ms P.

421Having regard to all the evidence before me, I am persuaded that it is appropriate to make an adjustment on the basis of the s 75(2) factors. I am so persuaded because the purpose of the s 75(2) adjustment is to assist the Court in the process of arriving at a just and equitable result. To refuse to make an adjustment in the present proceedings would be to run the risk of making orders which are neither just nor equitable.

422On balance, I conclude that an appropriate adjustment of the parties' entitlements on the basis of contribution alone is to increase the wife's entitlement by 10% (and decrease the husband's entitlement by a corresponding amount). I recognise, of course, that such an adjustment creates a further "differential" between the parties of 20%.

423It follows that the overall distribution of the property between the parties should be on the basis of 72.5% to the wife (being 62.5% in respect of contribution and 10% in respect of the s 75(2) factors), and the remaining 27.5% to the husband.

424Clearly, the observations I have already quoted from G & G (supra) and Steinbrenner & Steinbrenner (supra) also adhere to the exercise of judicial discretion I have just performed in relation to the s 75(2) factors.

Just and equitable?

425As indicated above, the High Court in Stanford explained that the consideration of the various factors in s 79(4) – which includes reference to s 75(2) factors – does not automatically give rise to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The requirement contained in s 79(2) must be considered and applied.

426In this case, and as discussed above, the parties separated before the commencement of property settlement proceedings. It is arguable, therefore, that the express and implicit assumptions that underpinned the property arrangements that they had made during their cohabitation had been "brought to an end by the voluntary severance of the mutuality of the marital relationship". It follows that it is just and equitable for the Court to make a property settlement order. That order is to be determined by applying s 79(4), although, clearly, the form of the order must also be just and equitable.

427In any event, I propose to (metaphorically) step back and consider whether the outcome achieved by my consideration of the parties' contributions and the s 75(2) factors has brought about a just and equitable result.

428The Full Court has cautioned against assessing the s 75(2) factors in percentage terms, without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is "the critical issue": see Clauson & Clauson (supra).

429If the wife is entitled to 72.5% of the property, then she is entitled to property to the value of $723,478 (being 72.5% of $997,901). The net value of property currently in her possession or under her control (including her superannuation and the amount of $68,000 already paid in respect of legal fees, and including the net value of Property A) is $762,049.1 It follows that if the wife is to retain that property, and if the husband's interest in Property A is to be transferred to her (subject to her "taking over" the mortgage), then she must pay the husband $38,571 (being the difference between $762,049 and $723,478).

430In the present case, the s 75(2) adjustment equates to approximately $99,790 (being 10% of $997,901). I am satisfied that such an adjustment is proper. Indeed, I am also satisfied that the adjustment is proper when regard is had to the difference between the wife's overall entitlement (being 72.5%) and the husband's overall entitlement (27.5%), which difference equates to 45% of the property (or approximately $449,055). Such a result is just and equitable.

431I am very conscious that justice and equity must be done to both parties, and I am also satisfied that the split that I have proposed achieves that result.

432Thus, and in summary, the wife will receive property to the value of $723,478 (being 72.5% of $997,901) and the husband will receive property to the value of $274,423 (being 27.5% of $997,901).

Orders

433It is apparent from the property schedule that the wife is to retain the following:

a)Property A (including the mortgage encumbering it);

b)her Volkswagen Golf GTI motor vehicle;

c)her furniture, chattels and effects (including her jewellery);

d)all moneys standing to her credit in any bank or other financial institution in Australia or overseas;

e)her credit card debt;

f)her interest in the Unit Trust (being her interest in Company P City Store 1 and Company P City Store 2), subject to the debt owed directly or indirectly to Mr W;

g)her paid legal fees; and

h)her superannuation and Swiss pension entitlements.

434The total value of the above items is $762,049. Thus, if her entitlement is to receive property to the value of $723,478 she will be obliged to pay the sum of $38,571 to the husband – which I shall round down to $38,570.

435It is also apparent from the property schedule that the husband will retain the following:

a)his Mercedes Benz motor vehicle;

b)his furniture, chattels and effects (including his jewellery);

c)all moneys standing to his credit in any bank or other financial institution in Australia or overseas;

d)his rental deposit;

e)his shares in Company A (if any);

f)his credit card debt;

g)his paid legal fees; and

h)his superannuation and Swiss pension entitlements.

436The total value of the above items is $235,582. However, and as explained above, the wife will be required to pay him a further $38,570.

437I now propose to hear the parties in relation to the precise orders necessary to give effect to these Reasons.

I certify that the preceding [437] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
21 August 2015

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1 This is the total of items 3, 4, 7, 10, 12, 15, 18, 21, 24 and 29 in the property schedule.