Gresham and Gresham (No 2)

FAMILY COURT OF AUSTRALIA

GRESHAM & GRESHAM (NO. 2)

[2019] FamCA 707

FAMILY LAW – PROPERTY – final property orders – where the wife seeks to retain the former matrimonial home – division of matrimonial property – assessment of contributions – overseas pension plans and overseas funds - treatment of add backs – superannuation – Capital Gains Tax – section 75(2) and 79 factors – assessment of what is just and equitable.

FAMILY LAW – PARENTING – final parenting orders – best interests of the children.

Family Law Act 1975 (Cth) s 60CC, 75(2), 79

Ferraro & Ferraro [1992] FamCA64
Hickey & Hickey [2003] FamCA 395
Stanford v Stanford [2012] HCA 52

APPLICANT:

Ms Gresham

RESPONDENT:

Mr Gresham

FILE NUMBER:

SYC

7914

2016

DATE DELIVERED:

11 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

1, 2, 3, 4 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Clifford

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Watson & Watson Solicitors

Orders

Parenting Orders

The children Y born … 2009, X born … 2007 and Z born … 2011 live with the mother.
The parties have equal shared parental responsibility for the children.
The children spend time with the father as follows:
(a) In Week 1, from after school Thursday until before school Friday, and each alternate week thereafter; and
(b) In Week 2, from after school Thursday until before school Monday, and each alternate weekend thereafter.
The children are to spend the first half of the Christmas school holidays in 2019 with the mother and the second half of the Christmas school holidays in 2019 with the father and alternating each year thereafter.
For the parent with whom the children are spending the first period of the Christmas school holidays will return the children to the other parent’s care at 4 pm Christmas Eve, and the parent with whom the children are spending Christmas Eve and Christmas Day will return the children to the other parent at 4 pm Boxing Day.
On special occasions in the event that the children are not already with the relevant parent the children shall spend time with their parents as agreed, and failing agreement:
(a)       With the father on Father’s Day from 9am to 7:30pm;
(b)       With the mother on Mother’s Day from 9am to 7:30pm;
(c)       In each odd-numbered year, with the father from 10am on Christmas Eve until 10am on Christmas Day and with the mother from 10am on Christmas Day until 10am on Boxing Day;
(d)       In each even-numbered year, with the mother from 10am on Christmas Eve until 10am on Christmas Day and with the father from 10am on Christmas Day until 10am on Boxing Day;
(e)       The children shall spend time with the father from the conclusion of school until 5pm on each child’s birthday on a school day and from 9am until 1pm on a non-school day; and
(f)       The children shall spend time with the father from the conclusion of school until 5pm on each child’s birthday on a school day and from 9am until 1pm on a non-school day.
For the purposes of implementing changeover, changeover is to take place at the mother’s home at the commencement of time with the father and the mother shall collect the children from the father’s home at the conclusion of time with the father.
The father shall have contact with the children during the time that they are with the mother via telephone, skype, facetime or video conference on a minimum of two occasions per week with the times to be agreed between the parties, but in the absence of agreement the mother shall facilitate such time between 5pm and 7pm.
Each parent shall have such authority as is necessary to obtain information as would normally be available to a parent from any professional body or organisation that holds information about the children including, but not limited to doctors, hospitals, schools and sporting associations.
Each parent shall forthwith notify the other at the earliest opportunity if any of the children are required to attend upon a doctor or a hospital for any reason, or are absent from school due to illness.
Each parent shall forthwith notify the other of any medical, therapist, school or any other appointment concerning the children at the earliest opportunity but not less than 24 hours prior to that appointment.
Each parent shall forthwith notify the other of any major health issue concerning the children which come to the attention of that parent whilst they are in his or her care.
Each parent shall keep the other informed of his or her current landline and mobile telephone number.
The mother and father be at liberty to take the children outside of the Commonwealth of Australia for travel to and through any country that is a member of The Hague Convention on the Civil Aspects of International Child Abduction only, unless travel to a non-member country is agreed to by the other parent in writing not less than 28 days prior to the proposed date of departure, conditional on the parents’ compliance with all the following:
(a)       Such time occur during that parent’s time with the children in a school holiday period unless otherwise agreed to between the parties in writing;
(b)       That they give the other party at least 6 weeks’ written notice of the intended travel dates;
(c)       They give the other parent not less than 28 days’ notice prior to the date of departure, a detailed itinerary including the contact details for the children whilst overseas;
(d)       Not less than 7 days prior provide a detailed itinerary of such overseas travel including copies of all airline tickets (or electronic ticket details if available) and accommodation address and contact details; and
(e)       They ensure that the children contact the other parent whilst travelling on not less than 2 occasions in each week.
Each parent is permitted to take the children on an overseas holiday to a Hague Convention country only, unless otherwise agreed.

Property orders

That the parties forthwith divide equally funds in the UK investment bond and ANZ joint bank account.
That the wife forthwith sign all documents and execute all consents necessary to transfer her interest in the property known as G Street to the husband with any costs associated therewith to be equally borne.
The husband to notify the wife within 42 days of these Orders whether he proposes to sell English properties, being one or either of them.
In the event the husband chooses not to sell one either or one of the English properties he is to pay the wife in cash from the payment to him of his interest in the former matrimonial home 50 per cent of the net value of the English property retained by him.
In the event the husband chooses to sell the English properties he is to pay the wife one half of the net proceeds of sale after payment of Capital Gains Tax and costs of sale.
The wife to notify the husband within six weeks of the date of these Orders whether she intends to retain the former matrimonial home or place the property on the market for sale.
In the event the wife chooses to retain the former matrimonial home the wife to pay to the husband $1,988,563 within 90 days of the date of these Orders less:
(a)       The sum of $266,110, being one half of the net value of the VPLC pension in the husband’s name;
(b)       The sum of $50,000 to be paid into the husband’s solicitor’s trust account to effect division of the Country Q pensions and any net proceeds remaining after this order has been brought into effect are to be paid to the husband;
(c)       The husband to transfer his interest in the property to the wife upon her compliance with Order 22 herein.
Thereafter, the wife is to indemnify the husband in respect of all monies owing to her parents.
The wife to forthwith sign all documents and give all consents necessary to affect an equal division of the Country Q pensions in the husband’s name being BB pension and CC pension forthwith.
The husband to do all acts and things necessary to affect an equal division of the Country Q pensions referred to in Order 22(b) and if required by the wife for entitlement in respect of both pensions to be placed into one pension fund at the with the wife to pay any costs associated with such a requirement.
In the event the wife elects to sell the former matrimonial home both parties are to do all acts and things to place the property on the market for sale with an agent of their choosing at a price as agreed between them or by way of auction and as agreed and to equally share the costs of having the pool fence made compliant for the purposes of sale.
The proceeds of sale are to be disbursed as follows:
(a)       Discharge of the current mortgage;
(b)       Agent’s commission, solicitor’s costs and usual conveyancing adjustments;
(c)       To the husband, 40 per cent of the net proceeds of sale, less the following amounts:
(i)$100,000 to the wife’s parents;
(ii)$266,110 to the wife;
(iii)The sum of $50,000 to be paid into the husband’s solicitor’s trust account to affect a division of the Country Q pensions. Any net proceeds remaining after a division of the Country Q pensions has been brought into effect are to be paid to the husband.
The balance of the net proceeds of sale are to be paid to the wife with the wife to pay her parents $550,000 being the balance of monies owed to her parents.
Thereafter, all assets including, but not limited to, superannuation and monies in bank accounts or other financial institutions are assets of the parties absolutely.
Pending transfer of the home to the wife or upon settlement of the sale of the former matrimonial home the husband to be responsible for payments of the mortgage and other outgoings in respect of the property. The wife will join in with the husband if necessary to minimise payments of the mortgage and his obligation to pay the mortgage is limited to interest only.
The Court notes the husband will continue to pay for private health insurance for the three children of the marriage.
I discharge all prior orders in respect of the children including and in particular the husband’s obligation to pay private school fees for the children.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7914 of 2016

Ms Gresham

Applicant

And

Mr Gresham

Respondent

REASONS FOR JUDGMENT

In the matter of Gresham & Gresham, Ms Clifford of Counsel appeared for the wife and Mr Lethbridge SC for the husband. The matter concerned parenting and property applications.
The Orders that the wife ultimately sought at the conclusion of the hearing in relation to property were as follows:
a)That she be given an opportunity, three months to purchase out her husband’s interest in the former matrimonial home at Suburb E;
b)That she retain her superannuation in Australia;
c)That the husband retain the English properties and his pension funds in Country Q and England;
d)That the husband continue to pay the outgoings on the Suburb E property together with an order for spousal maintenance that he has been paying until December 2020;
e)That she indemnify her parents for moneys provided by them to the parties in the sum of $571,385;
f)That, if the home is to be retained by her, she discharge and provide to the husband evidence of such discharge of all loans including those owed by the parties to her parents;
g)In the alternative, that if the home is sold, the sum of $571,385 is repaid to her parents;
h)In addition to an ongoing order for spousal maintenance of $1,000 per week until December 2020 the wife receive 50 per cent of the 2019 and 2020 PPL shares when the husband sells same;
i)The wife retain 100 per cent of the husband’s superannuation interest in Australia some $61,572; and
j)That the husband continue to pay private health insurance for the children, which he has agreed to pay. Therefore, there is no need to entertain a departure application under the child support legislation.
In relation to parenting:
a)That the father spend time with the children from after school Thursday to the commencement of school Monday each alternate weekend;
b)To spend additional time for a meal in the off week, perhaps a Wednesday or a Thursday, returning the children home at 8 pm; and
c)Otherwise the parents agreed on equal shared parental responsibility.
The parties each agreed to share special days such as Mother’s Day, Father’s Day, the children’s birthdays and their birthdays, Easter and Christmas.
The parties had agreed as to sharing equally the short school term holidays.
In relation to Christmas, the wife sought that there be a period of time with one parent from the cessation of school until 9 am Christmas Eve, then the children go with the other parent from 9 am Christmas Eve to 9 pm Christmas day, then back to the other parent for 9am Christmas Day until a period of time the day after Boxing Day, and that the children be with each parent for no longer than a block period of two weeks in the long school holidays.
The husband sought an equal sharing of the long school holidays but agreed that the children should see each parent around the Christmas Day, Christmas Eve, Boxing Day period of time.
Each agreed that the children will travel overseas with the other parent, provided it is to a Hague country and provisions for notifying the other parent of that intended trip are carried out.
The parenting issues, although important, were of small compass. There was no up to date social science and the only evidence I had before me was the Child Responsive Memorandum marked Court Exhibit 1, which was not a great deal of assistance as it was around two years old. However, it is trite to say these are excellent people, the children are doing well, there are no issues or allegations of violence or poor behaviour, other than one incident one month after separation and I am merely tasked to exercise my discretion as I see best in the matters that are not agreed.
The husband’s orders for the children is that they spend time with him from Thursday to Monday morning to commence forthwith, and he seeks an additional overnight in the following weeks such as the Thursday night after school to the commencement of school the following Friday.
He says this will mean the children see each parent weekly and, in particular, the children always know they spend every Thursday night in their father’s care.
In relation to property, the husband is not adverse to the wife being given an opportunity to buy out his interest in the former matrimonial home.
He cavils with the wife’s time frame of three months. He asserts he cannot pay from income currently that which he must pay by Order of the Court, being the mortgage, albeit at a reduced level on hardship grounds, spousal maintenance and the cost for the children including child support and private school fees.
He says these costs are currently being paid from an account which will run out at the end of August. The hardship agreement with the bank ends at the end of August, thereafter the mortgage will revert to $10,000 per month and he simply has no capacity to pay that money.
The husband seeks that the home be sold and for the property to be listed for auction. He has no difficulty with the wife selecting the agent. He has no difficulty with the wife conducting the sale, provided the listing of the sale price or auction price is discussed between them, and he agrees that they will take advice from a listing agent.
The father says from the proceeds of sale, the ANZ bank mortgage be paid, sale costs, including agent’s commission, sum of $50,000 be paid into a controlled moneys account for the implementation and approval of the orders in the United Kingdom or Country Q.
In relation to the overseas pension funds:
a)That the wife receive 60 per cent of the balance and the husband 40 per cent;
b)That the wife indemnify the husband in relation to monies owed to her parents;
c)That the parties sell the properties at G Street, City H, United Kingdom and J Street, City H, United Kingdom for fair market value, paying all costs associated with that sale including Capital Gains Tax;
d)That the wife receive 60 per cent of the proceeds of sale and the husband 40 per cent;
e)That the Court make a determination that each is entitled to one half of the BB Country Q pension and the CC Country Q pension;
f)That I order both parties to sign all documents and do all acts and things as are necessary to cause those pension funds to reflect each parties’ entitlement to the pension as I have determined it;
g)That the husband retain the UK pension as that has some significant difficulties in being split including the spectre of Brexit, and that the Court adjust to the wife accordingly one half of the retained UK pension by the husband;
h)The parties agreed that X would travel overseas with his dad for a rugby tour that X has been invited to attend; and
i)That I discharge all or any orders for the husband to continue to pay private school fees. It has become common ground between the parties that they are unable to afford to continue to send their children to private schools which cost is no less than $60,000 after tax per annum for three children.
The evidence before the Court was voluminous, as always it is the case in the Family Court.
For the wife, I read:
a)Financial Statement filed 26 June 2019;
b)Affidavits of 28 June 2019 and of 21 June 2019;
c)Case outline provided by her Counsel, which was marked wife’s exhibit 1;
d)The document entitled wife’s exhibit 3, being the minutes of the final orders she sought which were different from her application as is often the case which, and there is no criticism; and
e)Additional exhibits the wife’s notice of legal fees. The wife has expended, or will expend, some $425,000 in legal fees. The husband has expended over $300,000. It is of concern to that parties are spending 10 per cent of their gross asset pool or 20 per cent of their net asset pool on legal fees.
For the husband, I read:
a)Financial Statement filed 27 June 2019;
b)Affidavit of 21 June 2019;
c)First case outline, marked husband’s exhibit 1;
d)Husband’s exhibit 2, medical report by Dr MM in relation to the husband’s epilepsy. The wife made much of this in her material yet is was a red herring. The husband’s epilepsy is well controlled. He has suffered from this condition throughout their marriage. There is simply no issue of the care of the children being compromised due to his epilepsy. The wife’s position that he have the children in his care from Thursday after school to the commencement of school Monday morning each alternate week puts this issue to bed.
e)Husband’s exhibit 3, email correspondence between the wife and the husband concerning repayment of money owing to her parents, and
f)Husband’s exhibit 4, notice of legal fees.
Court exhibit 2 was the joint balance sheet which went through several iterations throughout the hearing, as is the usual course.
I read two experts’ reports, a report by Mr NN dated 27 June 2019 in relation to the UK and Country Q pensions in the husband’s name, and a report of the value of the former matrimonial home, which is agreed.

Debt owed to wife’s parents

There is a significant financial issue concerning the wife’s expenditure of some $650,000 post separation which was money each agreed was to be re-paid to her parents.
On 16 May 2016, the wife writes to her husband:
[Mr Gresham], per our discussion late last week about paying mum and dad the loan they gave when the sale of our UK house fell through at the last moment, it is now time to return that money. It’s approaching five months and, at the time when I asked for the amount, I believed we would get it back within two months. They cut themselves short of money to pull this at the last moment and they didn’t want us to lose our deposit. As we are now bringing the remainder of the currency from the sale of the UK property over, I will go to the ANZ to transfer the money tomorrow. [Ms Gresham].
The husband responds on 20 May:
Hi darling. You will be pleased to hear all the remaining cash arrived in our account overnight, $1.973 million. Once you return to mum and dad the $550,000, this will leave $1.423 million.
His is important as the wife did take the $550,000 out of the ANZ bank account but did not return it to her parents. In addition, there had been a previous amount, of $200,000 advanced to the parties by her parents to secure a deposit on the home. That money was refunded to the parties as the vendors agreed to reduce the deposit. The wife re-paid her parents $100,000 only. Therefore, the total loan owing to her parents by the parties today is some $650,000.

Chronology

The husband is aged 50 and the wife is aged 45.
The parties married in 2003 in the United States and returned to live to the United Kingdom.
X was born in 2007, Y was born in 2009 and Z was born in 2011.
On 3 June 2015, the parties returned from the United Kingdom to Australia.
They separated on 16 June 2016 and they were divorced in 2018.
The period of cohabitation was approximately 13 years.
The husband was seized of substantial assets at marriage. He had a property at F Street which he valued at £450,000; property G Street, City H, valued at £180,000; and 50 per cent interest at the property at J Street, City H which he valued at £37,500. He had savings in an approved government savings account. He had a clerical medical endowment policy, shares with Company K worth $104,000 and he asserts that his net assets were somewhere in the vicinity of $893,000 or thereabouts at the commencement of the relationship.
In addition, he had also set up the RR pension and the CC pension.
In the wife’s annexures to her Affidavit is a document from Company O, being an expert’s report addressed to both parties dated 15 September 2016 in relation to the value of the three pensions and this report when read with Mr NN’s report provides the following information inter alia.
Mr Gresham joined the BB Defined Benefit Pension Scheme on 1 August 1993 and left on 14 April 2004.
The value ascribed to that pension, now called the RR pension, see Mr NN’s report, in September 2016 is £881,102 and it is currently in excess of 1 million English Pounds or $2,039,182.
I note the parties were married in 2003. Thus, the husband had an interest in this pension scheme prior to marriage and he has not contributed to this pension since 2004.
Similarly, the husband’s interest in the 2nd second Country Q pension scheme the CC Country Q pension. Its current value is £393,737 or $758,919 Australian dollars. I note that this pension was commenced in 1998 and no moneys have been put into that pension since 2004.
The 3rd pension scheme is the VPLC UK pension, and, as at today’s date, that pension is worth $532,000 or £284,771.
The wife does not accept the value of the husband’s assets at the commencement of co-habitation, however, does not deny he had these assets. It is clear that his asset base was substantially higher than the wife’s, which some perhaps a superannuation entitlement.
In May 2005, the parties purchased their former matrimonial home in Suburb M for £827,000 and the husband sold the F Street property and applied £67,000 from that sale to the purchase.
On 5 May 2014, the husband resigned from his position and the parties were able to relocate from the United Kingdom to Australia. The husband asserts that relocation has caused him to suffer a loss of income and has been detrimental to his career and earning capacity.
The parties entered into a financial arrangement on 23 September 2014 to be as tax effective as they could be when moving assets from the UK to Australia.
The first step was that the husband transferred 99 per cent of his interest in the property at G Street, City H to the wife and he retained 1 per cent. The mortgage was increased from £146,000 to £231,000. This additional money, £84,000 was repatriated to Australia to assist in purchasing the home at Suburb E, and various other expenses.
On 1 January 2015, the husband commenced work with P Pty Ltd and he has continued in that employment since that time.
In June 2015, the wife and children relocate to Australia and the parties place their matrimonial home in Suburb M on the market for sale.
3 November 2015, the wife’s parents loan them the sum of $200,000 to pay towards the deposit on the Suburb E home.
In 19 January 2016, the wife’s parents gift the wife $1,000,000.
In January 2016, the parties purchase the former matrimonial home at Suburb E for a purchase price for $5 million in joint names. With additional costs and stamp duty, the purchase cost was $5,293,546.
The purchase price is funded as follows:
a)ANZ bank mortgage, $3,500,000;
b)A gift to the wife, unconditional, from her parents of $1 million;
c)Moneys provided by the parties from the United Kingdom of $300,000; and
d)Additional loan of $550,000 by the wife’s parents.
Suburb M is settled and ultimately $1,985,760 comes to Australia which is used to reduce the mortgage with a remainder placed in an offset account to fund renovations to the home and defray interest.
The parties separated in June 2016.
On 30 July 2016, an incident occurred where the husband was charged with a domestic violence order.
It is the husband’s case that, at separation, the wife withdrew $550,000 to ostensibly pay back her parents yet did not, retained $100,000 of the refund of the $200,000 loan by her parents and has had an additional $25,000 available to her being savings of the parties in their joint account as at separation. $650,000 was expended by the wife under three years and she has borrowed further money from her parents and friends.
The matter comes to the Court as the wife is seeking to retain the former matrimonial home.
Orders are made on 6 September 2017 for the husband to pay spouse maintenance, the mortgage, and all outgoings on the former matrimonial home. At this time, the mortgage was $10,000 per month. The husband’s salary by way of base income as well as bonus in 2017 was $420,772 bonus net and a base salary of $354,000 per annum.
Interim parenting orders are made on 6 December 2017.
On 7 May 2018, orders are made that the wife is to be paid $50,000 and the characterisation of that money is to be determined at the trial. Monies were ordered to be paid for outstanding school fees. These monies came from the parties T Bank Bond account.
On 19 October 2018, the matter comes before Justice McClelland. He ordered the wife to receive $145,000 for her legal fees which was to come from the T Bank Offshore account and the wife and her lawyers have received $130,000. The T Bank fund is nearly depleted having provided payment of the wife’s legal fees and some school fees.
Additional funds of $60,000 for legal fees have come from her parents. Her total bill is $425,000.
On 10 September 2018, the wife obtained further funds from her parents of $40,000 by way of a loan.
On 8 August 2018, she borrowed the sum of $25,000 from a friend to meet living expenses.
On August 2018, the wife enrolled in an MBA through a university.
The parties’ Divorce was made final in 2018.
On 8 September 2017, the Child Support Agency made an assessment of child support of $588 per week. It is currently $665 per week.
On 13 July 2017, the wife paid $100,000 to her parents. The total debt to her parents before payment of this sum was $750,000 being $200,000 for the initial deposit and $550,000 to purchase the home. Thus, there is $650,000 owing to her parents.

Parties’ evidence

Wife’s expenditure

It is the wife’s case that her level of expenditure post-separation has not been excessive or in excess of that which the husband has had available to him by way of his income and cashing in of share bonds and use of funds in the Transact account. I do not accept that submission from the wife.
The wife has disposed of $650,000 in cash being monies owing to her parents, $25,000 in the parties joint account at separation, borrowed an additional $105,000 from her parents and $25,000 from a friend. That is expenditure of $805,000 post-separation to date and does not include the sum of $931 the husband was paying her from October 2018 or child maintenance that he has also paid from shortly after separation.
The wife has expended $300,000 on legal fees, with further fees of $125,000 owing. The wife received $130,000 and an additional sum of $50,000 of matrimonial money being a total of $180,000 pursuant to orders of this Court to pay her legal fees. The wife has lived in the former matrimonial home rent free, and has paid no outgoings of any substance including insurance for her car.
The wife’s evidence in relation to her expenditure of this extraordinary sum of money is as follows.
At paragraph 193 of her Affidavit, the wife has done her best to set out what she spent this money on. These expenses include:
a)Cleaners, $6,000;
b)Gardener, $8,300;
c)An au pair, $6,000;
d)Lotto, $1,100;
e)Flowers and pot plants, clay pots decorating the house, storage for a taxi box when she rented the house out on two occasions;
f)Children’s birthday parties, $3,500;
g)Christmas presents including Mr Gresham and his parents, alcohol for parties, $3,500;
h)Birthday presents for school parties, $2,000;
i)Donation to the PP Foundation, $10,000;
j)Donation to the Art Gallery of New South Wales, $7,000;
k)A ring to herself for renovating the house, $5,500;
l)Earrings, $650;
m)Bracelet, $200;
n)Loan to her friend Ms QQ, $10,000. In cross examination it became apparent this has been repaid;
o)Tickets to the PP Foundation event, $1200, where she paid for three of her friends;
p)$2,000 for a purchase at the PP Foundation event silent auction;
q)$2,275 on taxis;
r)Beautician, $3,000;
s)Skin appointments, $7,000;
t)Cosmetics and face moisturiser for $4,240. That is $169 a month on cosmetics;
u)Psychologist appointment, $3,825. It became apparent in cross examination that the husband paid this cost;
v)A skiing holiday 2017, $4,200;
w)A holiday in January 2018 to the Gold Coast with the children, $6,000;
x)Flights to North Queensland while the house is being renovated, $2,200;
y)Rehousing the au pair when the home was rented out at Christmas, $500;
z)Babysitters, $3,500;
aa)Babysitting after the au pair left, $1,500;
bb)Babysitting from March to August, $1,800;
cc)Babysitter September 2017, a present, $1,200;
dd)Legal fees for 14 months, $128,000, disbursements directly paid, $10,000 together with, funds in the Barkus Doolan Trust Account is $161,000 in legal fees;
ee)Clothes, 15,500;
ff)$9,500 for shoes and handbag a total of $25,000 over two years or $240 a week;
gg)Preparing the house for rent, $1,400;
hh)Curtain and a curtain rail, $3,500;
ii)Telstra bills, $10,590;
jj)The wife paid one water bill and one Council bill; and
kk)Refurnishing the house because after the husband took his items, $45,000.
The wife failed to disclose the following monies she received:
a)Rent of $11,000 when renting the home out on Airbnb; and
b)An insurance claim $22,000 for lost jewellery.
It is correct that Family Law matters are not matters of accounting, however, I must assess what was reasonable for the wife to spend of her parents’ money. This is particularly so as the wife asserts the husband had the same or a similar amount of money available to him to spend post separation.
I accept that during some of this period of time the wife was not being supported directly until Justice McClelland made his order in October 2018 by way of spousal maintenance. The time between separation on 16 June 2016 and 18 October 2018 is 116 weeks. $933 per week for 116 weeks is $108,000. I accept the husband had an obligation to pay spouse maintenance to his wife in the sum of $108,000 and that the wife did not receive this money.
The wife paid $30,000 in school fees, one rate and one water bill some $2,500. I accept that additional costs of $10,000 per year for the children is not unreasonable and this totals $30,000 over three years for additional costs for the children.
The items in paragraphs 135 and 136 total $170,500. I will have regard to wife’s yet to be successful attempt to have the pool fence become compliant and allow her the $15,000 she has spent on this endeavour a total of $185,000.
In these circumstances, I find that it was reasonable that the wife spent, rounded up $200,000 of the $650,000 she has spent of her parent’s money. Thus, there is the figure of $450,000 on her side of the ledger that I must deal with.
Additionally, I will allow the wife money she received by renting out former matrimonial home of $11,000, the $22,000 received from an insurance payout and the $3,825 she claimed for payment of psychologist fees which were paid by the husband. This is an additional $37,000 or $16,000 per year that the wife has had the benefit of but will not form part of any add back.
In summary, the monies I have allowed the wife for her personal expenses total $237,000 over three years, which is almost $80,000 net per annum. I accept that from those funds she paid $30,000 in school fees or $10,000 over three years, thus, the net available to her amortised over three years amounts to $70,000 a year in addition to the husband paying the all outgoings in respect of the home insurance and the like together with child support payments and school fees.
There are several ways of dealing with the expenditure of this money by the wife.
The first is that if the wife retains the home she indemnifies her husband for monies owing to her parents. I accept her parents agree to this as they appear to be the most supportive of parents.
If the home is to be sold she asserts that $571,825 be paid to her parents from the proceeds of sale. Thus, if she retains the home she will indemnify her parents, however if the home is sold her husband must share in repayment of monies which are still owing to her parents. I accept her argument in relation to the process which should occur if the home is retained by her. I do not accept this argument if the home is to be sold and I must make provision for both eventualities.
The second option is to add back the funds the wife spent from matrimonial sources together with monies owing to her parents less monies I have determined that were reasonable for her to expend.
I accept the husband was dismayed when he discovered that his wife had not repaid his parents-in-law with whom he has a good relationship and for whom he has respect. The husband believed that the wife paid $550,000 to her parents and that she had already repaid her parents $200,000. Yet nothing could be further from the truth. All the money she had available to her has now been expended.
There are nine relevant issues in the property matter for my consideration:
a)The impact upon the percentage division of the parties’ current property having regard to the value of the assets introduced into the relationship by each party;
b)The weight to be attached to the significant gift to the wife of $1,000,000 by her parents which was applied to the purchase of the matrimonial home towards the end of the marriage;
c)The manner by which the Court should treat the wife’s disposal of the monies payable to her parents in the sum of $650,000 being either an indemnity or treated as an add back and the wife’s claim that both parties have had similar sums to spend post separation;
d)The benefit the wife has received from continuing to remain in the former matrimonial without cost to her;
e)Whether the Court has regard to the Capital Gains Tax or other taxes that the husband asserts will be incurred upon sale of the English properties or whether that be the husband’s debt as the wife asserts;
f)The division of the overseas pension plans and funds;
g)Treatment of the wife’s application for spousal maintenance by way of periodic amount or a lump sum in the form of an increased percentage of the value of the parties assets;
h)Retention by wife of all superannuation funds in Australia including the husband’s; and
i)Husband’s claim for proceeds of sale of shares pursuant husband’s employment.

Argument of Equal Expenditure

I propose to accept the wife’s position that if the home is retained by her she indemnify her parents given the significant benefit retaining a home one already owns affords a party and will determine what, if any, monies the husband is to pay towards the debt still owing to his former in-laws. I find that will be the least artificial way of dealing with this matter.
Going now to the argument that the husband has had the same amount of money available to him from his income and sale of shares, shares which came into the parties’ possession due to his employment.
The wife has spent $675,000 of which I have found $200,000 was reasonable expenditure.
The evidence is that the husband’s net income for the years 2017, 2018 and 2019 totalled $718,366 net. Payments he made, as set out in paragraph 169 of his Affidavit, total $499,262, leaving him with disposable income of $219,104 over those three years or $73,000 per annum. However, during that period of time, in addition to the amount set out in his schedule at paragraph 169, he paid the children’s school fees.
The private school fees are $60,000 per annum for all three children. The husband sought money to pay those fees late last year and early this year from the wife’s parents. The wife met one tranche of school fees of $31,000 from the borrowed moneys. The husband has paid $135,000 in school fees. If I deduct that cost from his disposable income of $219,000 he is left with $84,000, or $28,000 per annum.
The Transact account will at the time of delivery of this judgment have been depleted from $290,000 to virtually nil. It is correct that only the husband has transacted that account. However, that money went in part to pay for the wife’s legal fees of $130,000, the additional $50,000, spouse maintenance payments of $931 per week since October 2018, and school fees. It is clear to me this joint fund was used by the husband for the benefit of his family and to maintain for them the lifestyle they had enjoyed during the marriage and not for his sole purposes.
The wife asserts the husband has a greater net income from overseas rent of the English properties than that which she disclosed. This was a disingenuous argument. It is clear from his evidence the parties took out various insurance policies during the marriage and that the husband pays those policy premiums directly from the rents received, and he receives net and prior to tax being paid, £10,000 English pounds per annum.
Therefore, the wife’s claim that the husband has spent or had access to a similar sum of money to spend on discretionary expenditure as she has spent is simply not made out on the evidence. The husband has had nothing like $225,000 a year to spend on himself, and the children whilst living in a fully paid for home. The husband has had to pay rent of $887 and provide for his own needs from his income.

Contribution-based entitlement of the parties

I have formed the view on the evidence and consistent with the submissions by each party that they have equally contributed up to the date of separation, to their marriage and its assets. The husband’s contribution was by way of his superior initial financial contribution, being his income, the assets he had including the Country Q pension to which no funds have been applied since the marriage, and the wife’s contribution by the injection of $1 million in 2015/2016 when they purchased the former matrimonial home and her clear role as primary parent and homemaker.
The husband carried out the primary role of income earner and the wife the primary role of parent and homemaker, and each contributed to the best of their abilities in their respective roles to the benefit of their family and assets and there ought to be nothing other than an equal contribution-based entitlement for their past contributions.
The wife seeks in addition to a property settlement of 53 per cent of the parties’ assets, $1,000 per week by way of spouse maintenance until December 2020, two retain both hers and the husband’s superannuation in Australia and 50 per cent of the net sale proceeds of the husband’s PPL shares in 2019 and 2020. The husband’s superannuation is $61,572, hers $101,000 in Australia and his PPL shares today are worth $116,000.
The wife seeks maintenance to allow her to get back into the workforce. The husband asserts it would be preferable that I adjust in the wife’s favour in the property settlement an additional percentage to take account of her clear entitlement to spouse maintenance. The husband contends the wife be paid 60 per cent of the matrimonial property an adjustment to her of 10 per cent. The wife accepts she will need to re-enter the workforce and has set about doing so by the end of 2020. Even so, her income may never approach the husband’s income.
Given the size of the matrimonial pool of net $4 million in liquid assets together with $3.5 million in pension funds, a 10 per cent adjustment in liquid funds to the wife is a significant sum in excess of $400,000 or 40 weeks of maintenance at $1000 per week. Looking at the total net pool it is some $700,000 or 70 weeks at $1,000 per week.

Assignment of UK and Country Q pension benefits

A difficulty arises with the English pension. There is a problem and a timeframe due to the Brexit debacle that the parties have to move a Court in England to obtain a splitting order, as we would call it, of the English pension and that that simply may not come about. That does not apply to the Country Q pensions, being the RR pension and the CC pension. It is clear from the evaluation of Mr NN that those pensions can be split and easily split as follows.
The UK pension will require a UK Court Order to enable a splitting order to be effected and there are many problems. The order has to be drafted, the parties can consent, but the consent order must get before the Court and there is no certainty that would happen before Brexit in October 2019. Once Brexit occurs the capacity to make a splitting order vanishes, under the expert’s advice.
The RR pension, also called the BB Country Q pension can be assigned to the beneficiary at the discretion of the scheme trustees, and that is a similar position to Australia. RR requires Mr Gresham to provide written consent to order sufficient funds to be made available to the beneficiary. RR would create a separate pension account in the beneficiary’s name alone, and the beneficiary would also need to provide consent for the separate pension account to be created. I have the power to order the husband to provide written consent, to order sufficient funds to be made available to the wife, and for her to also consent to that occurring. I will be making an order that they equally share the RR pension. That is currently valued at $2,039,182.
In relation to the CC Country Q pension, that pension can also be assigned to the beneficiary according to Mr NN. That requires certified copies of the original decree absolute, which is available, a Court Order stating the Court has awarded a share of the pension to the beneficiary. CC create a separate pension account in the beneficiary’s name alone, the beneficiary needs to provide a consent for the separate pension account to be created. I can order the wife to provide a consent for the separate pension account to be created.
Mr NN says that there is no need to have two accounts, one in the RR and one in the CC. It could be requested by the beneficiary to have both separate pensions held in the one account so that there is only one Country Q pension, either with RR, CC or a new provider in Country Q.
The husband has also agreed to pay the wife 50 per cent of the value of his UK pension, which today is worth some $532,219. This is an entitlement for $266,110 cash to the wife.

Balance Sheet

Assets
Ownership	Description	Value
Joint	D Street, Suburb E	$6,850,000
Joint	G Street, City H	$705,000
Husband	J Street, City H	$203,000
Joint	UK investment bond	$6,491
Add Backs
Wife	Wife’s legal fees paid from matrimonial assets	$180,000
Wife	Monies retained in joint account by wife at separation	$25,000
Assets for Division
Joint	D Street, Suburb E	$6,850,000
Wife	Wife’s paid legal fees	$180,000
Wife	Retained joint savings	$25,000
Total	$7,963,000
Pensions
Husband	BB Country Q pension	$2,039,182
Husband	CC Country Q pension	$758,919
Husband	VPLC UK pension	$532,219
Total	$3,330,320
Superannuation
Husband	Australian superannuation – husband	$61,572
Wife	Australian superannuation - wife	$101,363
Total	$162,935
Pool one – Australian assets and debts
Joint	D Street, Suburb E	$6,850,000
Joint	Joint ANZ bank account	$9,078
Add Backs
Wife	Wife’s legal fees paid from matrimonial assets	$180,000
Wife	Monies retained in joint account by wife at separation	$25,000
Total	$7,064,078
Debts
Joint	ANZ Mortgage	$2,083,666
Total Assets (Excluding Debt to Wife’s Parents)	$4,980,412
Pool Two - English assets and debts
Assets
Husband	G Street, City H	$705,182
Husband	J Street, City H	$203,418
Total	$908,600
Debts
Husband	UK Mortgage	$415,800
Total UK Assets	$492,800

My first task is to determine the matrimonial pool for division.

Assets

In relation to the items of furniture at the former matrimonial home, I do not propose to make any order. They are used by the children and I will take them out of the matrimonial pool for division.
The former matrimonial home at Suburb E is valued $6,850,000.
The G Street, City H property, $705,000.
The J Street, City H investment property, $203,000.
The husband is to keep his contents, the wife to keep her contents and the items he seeks which she agrees with are to be removed from the matrimonial pool.
The motor vehicles in either party’s name will not form part of the pool.
I will not include the parties’ personal bank accounts in the matrimonial pool having regard to the length of separation.
The UK investment bond and joint ANZ account will form part of the matrimonial pool.
The wife has an upcoming hernia operation and the funds set aside for that operation will not form part of the matrimonial pool.
The husband’s rental bond is his asset having been acquired post separation and will not form part of the matrimonial pool.
I do not propose to include the wife’s jewellery in the matrimonial pool, having no doubt been gifts given to her by her husband.
Similarly, the husband’s watch and ring will not be included in the matrimonial pool for division.
The funds in the Barkus Doolan trust account in the wife’s name will not be included in the matrimonial pool as I have formed the view it is more likely than not they have been sourced from her parents or friends.
I will order funds in the ANZ joint account and UK investment bond to be equally divided.

Add backs

Wife’s legal fees paid from matrimonial assets, $180,000.
Monies retained in joint account by wife at separation, $25,000.

Assets for division

Matrimonial home $6,850,000.
$180,000, wife’s paid legal fees.
$25,000, retained joint savings.
Total - $7,963,600.

Pensions and superannuation

BB Country Q pension, $2,039,182.
CC Country Q pension, $758,919.
VPLC UK pension, $532,219.

Total overseas pensions in husband’s name

$3,330.320.

Superannuation

Australian superannuation husband, $61,572.
Australia superannuation wife, $101,363.
In relation to the items of real estate in England I will take them out of the matrimonial pool for division in Australia and deal with the Australian and UK real estate as two pools. It is clear the husband intends to sell those properties and I will make such an order. It was unfair of the wife to assert the husband should retain those properties and the clear Capital Gains Tax that will result from a sale of those properties when his intention is to sell them. These are the parties’ assets and the wife should equally share in the benefit as well as the deficit on the sale of those properties. If they are not sold then her entitlement is the net value less the current mortgages only.

Pool one (Australian assets and debts)

Matrimonial home, $6,850,000.

Add backs

$180,000, wife’s paid legal fees.
$25,000, monies retained by wife in joint account at separation.
Total: $7,055,000.

Debts

The ANZ mortgage, $2,083,666.
Total assets (excluding debt to wife’s parents): $4,971,334.
If the wife retains the home the $650,000 owing to the wife’s parents will be her debt and will be dealt with as an indemnity to the husband in relation to her parents as her minute of order seeks.
If the home is to be sold a different order must operate. I found the wife was entitled to expend $200,000 of the monies owing to her parents. This is joint debt and each must pay it back to her parents. Thus, upon a sale the husband is to pay $100,000 from his share of the net proceeds of sale to his former in-laws otherwise the remaining debt owing to the wife’s parents is the wife’s debt being a combination of monies the parties borrowed and monies the wife has borrowed. I will order the wife to re-pay her parents $550,000 upon a sale to extinguish this vexed issue.

Pool two (English assets and debts)

G Street, $705,182.
Colliers close, $203,418.
Total: $908,600.

Debts

UK mortgage, $415,800.
Net UK assets, $492,800.
I find these are the matrimonial assets and debts otherwise all other debts are the party’s personal debts and not matrimonial debts. The wife will be responsible for the outstanding invoice to builders for the yet to be completed pool fence compliance work. The wife engaged these builders without consultation let alone agreement from the husband and the work has not yet resulted in a compliant pool fence. That decision and its consequences rest with her.
In relation to additional costs that will be incurred to have the pool fence compliant the parties will equally share that cost in the event of a sale. The parties cannot sell a property that does not have a compliant pool fence.

Division of the matrimonial assets

The law is clear and well settled in relation to property adjustment. The test in in Stanford[1] that the Court must be satisfied it is just and equitable, and otherwise proper to embark upon an adjustment of how the parties currently hold their property is clearly fulfilled in this matter having regard to the length of the marriage, the assets the parties hold and that each party seeks I embark upon an adjustment of their current entitlement to property in order to effect a division of their property now that their marriage has broken down.
[1]Stanford v Stanford [2012] HCA 52.
The test under section 79[2] is a fourfold test and was set out clearly in the decision of Ferraro[3] and Hickey[4].
[2]Family Law Act 1975 (Cth), s 79.
[3]Ferraro & Ferraro [1992] FamCA64.
[4]Hickey & Hickey [2003] FamCA 395.
The first step is to identify the matrimonial property its species nature and value.
The second step is to identify the contribution based entitlement of each party to their property expressed as a percentage having regard to their past contributions being both financial and non-financial and as parent and homemaker.
There may be a need to have regard separately, to the contributions one party may have made to the assets or as parent and homemaker post separation over and above the contributions of the other party
The third stage is to identify the needs of each into the future having regard to the factors under section 75(2) of the Act[5]. The Court may adjust either party’s contribution up or down based entitlement for their past contributions having regard to their needs into the future.
[5]Family Law Act 1975 (Cth).
The final stage is to assess what is the outcome of the decision the court proposes to make by way of an adjustment of property in order to determine whether the order proposed to be made is just and equitable in all the circumstances.
I have identified the matrimonial property its nature its species and its value.
The parties agree they have equally contributed to their assets in the past. They have agreed that the wife has future needs having regard to section 75(2) of the Act[6].
[6] Above, note 3.
The dispute arises as to whether I accept the wife’s position that she receive 53 per cent of the liquid assets in Australia, retain her and the husband’s superannuation in Australia, share equally in the PPL shares to be sold in 2019 and 2020, that the husband pay her $1,000 per week by way of spousal maintenance until the end of 2020 with the husband to retain all the overseas pensions and properties, or whether I accept the husband’s position and adjust the wife’s entitlement to an equal share of the parties real estate assets in both England and Australia by 10 per cent to provide for her future needs, pay her in cash 50 per cent of the value of the English pension and otherwise equally divide the Country Q pensions.
The husband has agreed to maintain the children in a private health fund, therefore, there is no need to entertain the issue of a departure application under the child support legislation.
Acceding to the wife’s position would result in the husband retaining overseas pensions valued at $3,330,320. These are valuable assets and I am concerned 53 per cent of the value of the home in Australia and spouse maintenance of some $78,000 being $1,000 per week for 18 months would be an inequitable division of matrimonial assets for the wife having regard to the value of the overseas pensions.
I accept, however, the ability to access the value of these assets may not vest in the husband and, therefore, the wife for some 20 years. The husband also now has the majority of the risk in these overseas pensions and the Capital Gains Tax arising from the sale of the English properties which is an unknown figure.
From the wife’s point of view such a decision provides her with the majority of the liquid assets in Australia and all the superannuation in Australia. The only ongoing financial connection the parties would have is payment by the husband of spouse maintenance for some 15 to 18 months. There is some force in the wife’s position in that it provides for a clean break financially for the parties’ overseas assets. The wife agrees she will transfer her interest in the G Street property to the husband to enable him to deal with that property. There are some unknowns and difficulties with the overseas assets. For example, it is impossible to calculate Capital Gains Tax payable on the sale of the English real estate. The pensions were the husband’s prior to the marriage and if difficulties arise with these pensions he is the owner of them, a British citizen and the wife may have to rely upon the husband to do acts or sign documents in order to receive her share of the overseas pension when the time comes for those pensions to be paid or otherwise dealt with.
For the husband, providing his wife with 60 per cent of the net equity in the former matrimonial home be it sold or retained, 60 per cent of the net equity after payment of capital Gains Tax on the sale of the English properties together with a cash adjustment being 50 per cent of the quantified and known present value of the VPLC English pension and equally splitting the two Country Q pensions provides him with certainty. Additionally, he does not have the obligation to pay to the wife $1,000 per week as he asserts her need for maintenance has been taken account by the 10 per cent adjustment. The husband says this position offers him and the wife a clean break financially.
As to the Country Q pensions Mr NN says that there is no need to have two accounts, one in the RR and one in the CC. It could be requested by the beneficiary to have the separate pensions held in the one account so that there is only one Country Q pension, either with RR, CC or a new provider in Country Q.
Therefore, any risk the wife may perceive now to be able to access her entitlement to those funds in the future is minimised as the Court can require the husband to do all acts and things necessary to ensure the wife has her entitlement to her share of the current Country Q pensions held as she directs and this is clear from the expert’s evidence.
I find it is proper that I make the order sought by the husband in relation to splitting the pensions. It is clear from the expert’s report that the wife will be able to obtain this benefit. I will receive any submissions from both parties’ lawyers when I have made my order, to protect the wife’s interests, such as securing a sum of money to be held back rather than being paid to the husband in the event the Country Q order cannot be carried out.
The husband has also agreed to share equally the value of his UK pension, which today is worth some $532,219 and the wife, therefore, is entitled to a cash figure of $266,110 by way of adjustment and that will come out of the husband’s share of the former matrimonial home.
I have formed the view that the husband’s position is that which will provide the most just and equitable division of the parties property and sever their ongoing financial relationship equitably for the following:
a)Each will have a pension and/or superannuation fund overseas and the positives and negatives that flow from that consequence and for the wife that is a value in pensions currently of $1,399,050;
b)Each will bear the loss or gain from the sale of the English properties as the proceeds will be divided between them 60 per cent to the wife and 40 per cent to the husband after the payment of Capital Gains Tax and other expenses associated with the sale;
c)The wife will retain her superannuation in Australia of $101,000;
d)The wife will receive an additional 10 per cent of the net value of the liquid assets having regard to her needs under section 75(2) of the Family Law Act 1975 as spouse who at this time is unable to support herself adequately and is undergoing re-training. From the Australian property this is potentially $498,000, and as best I am able for the English properties potentially some $30,000 a total potentially of $528,000. This is equivalent to 12 months of spousal maintenance at $1,000 a week paid in a lump sum;
e)In addition the wife will receive $266,000 in cash from the husband’s share of the assets being 50 per cent of the current value of the English pension which she may use as she determines is appropriate and is more than sufficient to pay her outstanding legal fees; and
f)An equal share of the joint ANZ bank account and English investment bond potentially $7,500, however, I accept the English investment bond may now be exhausted.

The husband will have:
a)His superior and significant income approaching with bonuses $413,140 gross per annum;
b)The entirety of the VPLC English pension of $532,219 and 50 per cent of the remaining pensions totalling $1,399,505;
c)A cash figure representing 40 per cent from the net proceeds of sale of the Australian and English properties less the monies to be paid to the wife in respect of the English pension adjustment and if the home is to be sold less $100,000 to be paid to his former in-laws;
d)His PPL shares from his employment worth gross $61,572;
e)An equal share of the joint ANZ bank account and English investment bond potentially $7,500 however I accept the English investment bond may now be exhausted.
I do not see that the wife has an entitlement to a share of the PPL share sale given separation occurred in June 2016 and that vesting of these shares is part of the husband’s salary package to which the wife has made minimal contribution post separation.
If the wife is able to retain the home she will indemnify the husband in respect of the money her parents lent she and the husband and which she has spent. In the event the home is sold the husband will repay from his share of the proceeds of sale $100,000 to his former in-laws, the wife $550,000 and otherwise the additional monies she has borrowed from them is matter between them.
Otherwise, all other debts are the parties’ personal debts or loans and not matrimonial debts.

What is the result of the orders I propose to make?

60 per cent of the Australian assets of $4,971,334 is $2,982,800 to the wife and $1,988,533.
The wife’s share must be deducted for the add back of $205,000 giving her an entitlement of $2,777,800.
The husband is to pay the wife $266,110 being her one half share of the English pension reducing his entitlement to $1,722,423 and increasing the wife’s share to $3,043,910.
The wife is to forthwith transfer her interest in the G Street property to the husband and sign all documents necessary to effect that transfer.
Additionally, the wife will receive further funds from the husband being 60 per cent of the net proceeds of sale of the English properties after payment of Capital Gains Tax and selling costs. I will give the husband two months from the date of these Orders to determine whether he wishes to sell the English properties and if he chooses not to sell either or one of them he is to forthwith at expiration of two months’ pay the wife one half of the net value of the property he chooses to retain. The husband has four months from the date of these Orders to sell one or either of the English properties and pay the wife her entitlement and share of the proceeds of sale.
Should the wife seek to retain the former matrimonial home she is to pay her husband $1,722,423 with the husband’s lawyers to hold $50,000 of his share to fund, if necessary the division of the Country Q pensions. The wife will indemnify the husband in respect of her parent’s debt. I will give the wife 42 days to notify the husband that she intends to buy him out or intends to sell the home. In the event the wife intends to by the husband out she is to do so within six weeks of notification to him.
In the event the wife determines to sell the home the husband is to receive 40 per cent of the net proceeds less $100,000 to the wife’s parents and $50,000 to his solicitors to fund, if necessary the division of the Country Q pensions, additionally $100,000 is to be paid to the wife parents from his share and $550,000 is to be paid to the wife’s parents from her share to end this liability.
Both parties do all acts and things to effect a division of the Country Q pension funds equally between them and the husband is to cooperate with the wife in the event she chooses to combine her pension funds into one fund in her name and this step shall be at her cost.
In relation to the sum of $50,000 of the husband’s entitlement being held back on either transfer or sale, upon the pension funds being split the monies remaining are to be paid to the husband forthwith.
I will order the wife to sign all documents necessary to permit the husband to sell the English properties forthwith, pay the costs of sale and all English taxes and then pay to the wife 60 per cent of the nett proceeds of sale and the balance to himself.
The wife is to pay the outstanding builders bill of some $15,000 from her share of the proceeds of sale and in the event of a sale both parties are to equally share the costs of the pool fence being made compliant.
I find these Orders are just and equitable in all the circumstances.

The parenting matter

These children are very fortunate. They have excellent parents who are competent, capable and caring, and although there was a nasty incident shortly after separation, there has been very little poor behaviour by either parent during the marriage. The wife agrees that the children should spend from Thursday evening in week one to the commencement of school Monday in week two, but is concerned about the children spending a one-off night in the other week as she says this disrupts their routine, they are tired. Her son X has a turned eye and both X and Y have a form of dyslexia which means they have to concentrate far more at school than most. They become tired, and the mother would prefer they come to their home after having a meal with their father and be ready for school the next day.
The father seeks that in the off week this be an overnight time.
I have formed the view that whether they spend time only for a meal, come home at 8 o’clock to their mother’s home or stay overnight with their and go to school with him the next day it would be the same disruption to them, if that be the term to use. Either option would be little different to the children.
What is important for them is stability and routine. An order which provides for the children to be with their father every Thursday night, in one week their time extends to Monday morning and in the other weekend it extends to Friday morning, the last day of school, is an order I find in the children’s best interest.
It is a stable and easily understood regime of time. The father is well capable of caring for the children and the children are able to spend this time away from their mother.
The children benefit from a meaningful relationship with each of their parents. They are not exposed to any poor behaviours.
I do not know the wishes of the children, there is no social science before me.
Each parent has a high capacity to parent the children, to provide for their social, economic, psychological and educational needs.
Each parent takes their attitude and responsibilities of parenthood extremely seriously.
Each parent has the capacity to parent the children. The mother is no doubt the children’s closest emotional attachment, have regard to the way the parties lived their life during the marriage. The children have a close and loving relationship with their father. They spend good quality time with him. There is no difficulty in their relationship with either parent or each other.
The children are of an age where they are able to spend time away from their father and mother, and I have formed the view that the father’s orders are to be preferred and I will so order.
In relation to the Christmas school holidays, the mother’s order causes me some concern. The mother sought no more than two weeks in either parent’s care. I could see no reason why the children ought not be able to have a lengthy holiday with both parents given their ages and relationship with each parent.
Each parent agree that the children should spend time with them on Christmas Eve, Christmas Day and Boxing Day.
I will order that the children spend the first half of the Christmas school holidays with the mother in 2019 and with the father in 2020, alternating each year.
I will order that for the parent with whom the children are spending the first period of school holidays, they will return the children to the other parent’s care at 10 am Christmas morning and that parent will return the children to the other parent at 12 noon Boxing Day, otherwise they will spend one half of each school holiday period with their parents or as agreed.
I prefer this order as it provides for the children to have a full day on Christmas Day and Christmas night with their parent each alternate year however see both parents at this important time.
In relation to overseas holidays, I agree with the mother’s position that they ought be only able to travel, unless agreed, to a Hague Convention country and I will so order.

I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 11 October 2019.

Associate:

Date: 11 October 2019

[2019] FamCA 707

11 October 2019

Key Legal Topics

Areas of Law

Family Law