Guntupalli and Parthasarathi

FAMILY COURT OF AUSTRALIA

GUNTUPALLI & PARTHASARATHI

[2014] FamCA 86

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Long marriage – Where there are three children of the marriage – Where the wife made a greater financial contribution – Where the husband made significant non-financial contributions – Where the husband is 67 years of age and is suffering from the effects of cancer – Where the wife is 56 years of age and has a greater earning capacity – Superannuation.

Evidence Act 1995 (Cth) s 142(1).
Family Law Act 1975 (Cth) ss 79, 75(2).

Baglio & Baglio [2013] FamCA 105.
Bevan & Bevan [2013] FamCAFC 116.
Harper & Harper [2013] FamCA 528.
Mallet v Mallet (1984) 156 CLR 605.
Stanford & Stanford (2012) 247 CLR 108.
NHC & RCH (2004) 32 Fam LR 518.
Lovine & Connor & Anor (2012) FLC 93-515.
M & M [1998] FamCA 42.
Cerini & Cerini [1998] FamCA 143.
Omacini & Omacini (2005) FLC 93-218.
Kouper & Kouper (No 3) [2009] FamCA 1080.

Steinbrenner & Steinbrenner [2008] FamCAFC 193.
Watson & Ling [2013] FamCA 57.

APPLICANT:

Mr Guntupalli

RESPONDENT:

Ms Parthasarathi

FILE NUMBER:

BRC

743

2011

DATE DELIVERED:

21 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

5 & 6 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carew QC

SOLICITOR FOR THE APPLICANT:

Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Galloway

SOLICITOR FOR THE RESPONDENT:

Michael Lynch Family Lawyers

Orders

That within thirty (30) days from the date of orders being made in these terms, the wife shall do all acts and things and execute all documents necessary to transfer to the husband at the expense of the husband the whole of her right, title and interest in the property at B Street, Suburb C in the State of Queensland, more particularly described as Lot … on RP …, County of …, Parish of …, Title Reference … (“the B Street property”).
That within thirty (30) days from the date of these orders, the wife do all acts and things and execute all documents necessary to transfer to the husband at the expense of the husband the whole of her right, title and interest in the property at D Street, Suburb E, in the State of Queensland more particularly described as Lot … on RP …, Ward of …, Parish of …, (“the D Street property”).
That as from the date of these orders, the wife indemnify and keep indemnified the husband with respect to any mortgages secured over the B Street property and/or the D Street property, and, that within thirty (30) days of the date of this order, the wife sign all documents and do all acts and things necessary to refinance the mortgage debts secured over the said properties such that they are secured over property which, as a result of these orders, is to be retained by the wife in the wife’s sole name.
That within thirty (30) days of the date of these orders, the husband shall do all acts and things and execute all documents necessary to transfer to the wife at the expense of the wife the whole of his right, title and interest in F Street, Suburb C in the State of Queensland more particularly described as Lot … on RP …, County of …, Parish of …, Title Reference … (“the F Street property”).
That, except as otherwise provided for, the husband is entitled to be the sole legal and beneficial owner of the following:
a)         his interest in the property at G Street, Suburb H;
b)        funds in the Suncorp bank account no. …00;
c)        funds in Suncorp bank account no. …80;
d)        funds in Suncorp bank account no. …08;
e)his credit card liability for the Commonwealth Bank Card no. …95;
f)his interest in N Business and its bank accounts, plant and equipment;
g)        his Toyota Rav 4 motor vehicle;
h)        his shareholdings with Suncorp, AMP and Wesfarmers;
i)         furniture, furnishings and effects in his possession;
j)         personal effects and jewellery;
k)his superannuation entitlements with Guntupalli Superannuation Fund; and
l)his member entitlements with the P Guntupalli Superannuation Fund (until such time as those entitlements are rolled over into the Guntupalli Superannuation Fund).
That, except as otherwise provided for, the wife is entitled to be the sole legal and beneficial owner of the following:
a)         all funds in all bank accounts held in her name;
b)        her professional practice and all associated entities;
c)all real property in her possession or ownership not otherwise referred to in these orders, namely I Street, Suburb J, K Street, Suburb L and M Street, Suburb A;
d)all mortgages in her name, including but not limited to the following mortgages:
(i)mortgage #...500;
(ii)mortgage #...404;
(iii)mortgage #...909; and
(iv)mortgage #...400;
e)        furniture, furnishings and effects in her possession; and
f)         the Toyota Prado, registration …;
g)        the wife’s personal effects and jewellery; and
h)        any shareholdings in the wife’s name.
That, pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) the amount of $554,575.79 is allocated as the base amount to be deducted from the interest of the wife in the P Guntupalli Superannuation Fund (“the superannuation fund”) and the wife, a member of the superannuation fund and the husband and the wife, the trustees of the superannuation fund, do all acts and things and sign all documents and give all consents so that whenever a splittable payment becomes payable out of the interest of the wife in the superannuation fund the husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement of the wife to whom the splittable payment would have been made but for these orders.
The husband and the wife, as trustees of the P Guntupalli Superannuation Fund, shall do all acts and things and sign all such documents as may be necessary to pay to the husband the entitlement occurring as a consequence of paragraph 7 of this Order whenever the trustees make a splittable payment out of the wife’s interest in the P Guntupalli Superannuation Fund.
That paragraph 7 of this Order have effect from the operative time and the operative time for this Order is the date of this Order.
In the event that either party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provisions of these Orders, then, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said Order and the affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance.
In the event that they have not already done so, forthwith upon the making of this Order the husband and the wife shall each do all acts and things and sign all documents required to rollover the husband’s entire interest in the P Guntupalli Superannuation Fund, as at 30 June 2013, into the Guntupalli Superannuation Fund, including, but not limited to, signing all and any withdrawal documents required by any bank to effect a rollover of those funds.
Forthwith upon the rollover of the husband’s entire interest in the P Guntupalli Superannuation Fund into the Guntupalli Superannuation Fund pursuant to paragraph 11 of this Order, the husband shall do all acts and things and sign all documents required to resign as trustee of the P Guntupalli Superannuation Fund. The P Guntupalli Superannuation Fund shall bear the cost of the preparation of any documents involved in his resignation as trustee from the P Guntupalli Superannuation Fund.
Within thirty (30) days of the date of this Order, the wife must do all acts and things and sign all documents required to transfer any tenancies associated with the B Street and D Street properties into the sole name of the husband such that the husband becomes the sole lessor of those properties and receives all rental income associated with such properties.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC 743 of 2011

Mr Guntupalli

Applicant

And

Ms Parthasarathi

Respondent

REASONS FOR JUDGMENT

The parties’ voluntary separation some years ago has meant that they no longer enjoy the common use of property and superannuation in which their existing legal and equitable interests were acquired during a lengthy cohabitation. Such separation has also brought to an end any “assumption that any adjustment to those interests could be effected consensually as needed or desired”.[1]
[1] Stanford and Stanford (2012) 247 CLR 108, [42].
Both parties contend and I accept that, in the circumstances, it is just and equitable within the meaning of s 79(2) of the Family Law Act 1975 (Cth) (“the Act”) that, pursuant to s 79(1) of the Act, orders altering the interests in property owned by each of them are made.[2]
[2] Ibid at [42].
Whilst agreeing that it is just and equitable that orders altering their interests in property are made, the parties are in conflict as to the terms of the orders which are appropriate to reflect properly those matters which, by s 79(4) of the Act, must be considered.
The husband asserts that orders which would see him receive property and superannuation interests with a combined value representing 57 per cent of the total value of the property and superannuation interests of the parties would be just and equitable. It is said that such an outcome would follow the Court reaching a conclusion of equality of contributions as at the date of trial[3] and making a 7 per cent adjustment, reflective of an assessment of the relevant matters referred to in s 75(2) of the Act, in the husband’s favour.
[3] Family Law Act 1975 (Cth) s79(4)(a), (b) & (c).
The wife asserts that orders which would see her receive property and superannuation interests with a combined value representing 60 per cent of the total value of the property and superannuation interests of the parties would be just and equitable. It is said that such an outcome would follow the Court assessing contributions as at the date of trial[4] at 65 per cent in her favour and affording a 5 per cent adjustment, reflective of an assessment of the relevant matters referred to in s 75(2) of the Act, to the husband.
[4] Family Law Act 1975 (Cth) s79(4)(a), (b) & (c).
Counsel for the wife was at pains to emphasise that the position advanced by the wife did not amount to a concession by her that, irrespective of the overall determination of contributions, justice and equity required that a 5 per cent adjustment be made in the husband’s favour. Rather, her position – that a 5 per cent adjustment be made in the husband’s favour when the relevant s 75(2) matters were considered – was intrinsically linked to her contention that the Court would be satisfied that the appropriate consideration of contributions resulted in an assessment of 65 per cent in her favour. That is, the wife did not concede that if the Court’s conclusion in assessing contributions was other than 65 per cent in her favour, there should be a 5 per cent, or any, adjustment in the husband’s favour when relevant s 75(2) matters were considered.
The parties commenced cohabitation in 1982. They married in December 1984. A dispute exists as to the date of separation. I consider that the evidence establishes that the parties separated on 1 July 2008 when the husband initially left the former matrimonial home to live at the G Street property. The husband himself acknowledged that, following this, when he moved back to live in the former matrimonial home, after returning from an overseas holiday with illness, he did so on the basis that the parties were separated under the one roof. This situation continued until 19 September 2009 when the husband finally left the former matrimonial home to return to live in the G Street property.
The parties are largely agreed as to the items of property and superannuation that each will receive. The practical consequence of the difference between them is that:
a)the husband seeks the B Street and the D Street properties free of encumbrance whilst the wife asserts that he should take them with debt in an amount of $145,990.00; and
b)the husband seeks to receive, by way of superannuation splitting order, 50 per cent of the wife’s entitlement to superannuation in the P Guntupalli Superannuation Fund whilst the wife opposes the making of any order splitting her entitlement to superannuation in that fund.

The property of the parties and related issues

The parties do not dispute their existing legal interests in the property and superannuation interests. Neither party asserted the existence of any equitable interest in other property. Save for those matters particularised at items 22 and 27 of the Table below, the parties are agreed about the values of the property and superannuation interests.[5] Therefore, save for those items and the consequent effect resolution of the dispute about their value will have on the total value of the property, I find the existing interests of the parties in property of the parties and the value of the same as at the date of trial to be as follows:
[5] Exhibit 3 and the subsequent schedules provided by Counsel during submissions.

Item	Ownership	Description	Wife Value	Husband Value
1.	Husband	G Street, Suburb H	$360,000.00	$360,000.00
2.	Wife	B Street, Suburb C	$435,000.00	$435,000.00
3.	Wife	D Street, Suburb E	$380,000.00	$380,000.00
4.	Wife	K Street, Suburb L	$320,000.00	$320,000.00
5.	Wife	I Street, Suburb J	$340,000.00	$340,000.00
6.	Wife	M Street, Suburb A	$490,000.00	$490,000.00
7.	Joint	F Street, Suburb C	$610,000.00	$610,000.00
8.	Husband	Suncorp Account #...00	$14,231.77	$14,231.77
9.	Husband	Suncorp eOptions #...08	$10,602.88	$10,602.88
10.	Husband	CBA business premium #...07	$15,090.60	$15,090.60
11.	Husband	CBA business online Saver #...32	$14,539.51	$14,539.51
12.	Wife	Suncorp everyday options #...12	–	–
13.	Wife	Suncorp everyday options #...70	–	–
14.	Wife	CBA streamline #...07	$119,050.69	$119,050.69
15.	Wife	CBA Netbank Saver #...58	$13,012.57	$13,012.57
16.	Husband	AMP shares 1413	$5,892.00	$5,892.00
17.	Husband	Suncorp shares 931	$11,107.00	$11,107.00
18.	Husband	Wesfarmers shares 242	$9,970.00	$9,970.00
19.	Wife	AMP shares 991	$4,132.47	$4,132.47
20.	Husband	Toyota Rav 4	$14,000.00	$14,000.00
21.	Wife	Toyota Prado	–	–
22.	Wife	Parthasarathi Pty Ltd	$1,029,165.00[6]	$1,034,666.20[7]
23.	Husband	N Business	–	–
24.	Wife	Loan owing to wife from Parthasarathi Pty Ltd as at 30/6/13	$9,951.00	$9,951.00
25.	Wife	Wife’s legal fees	–	–
26.	Husband	Husband’s legal fees paid to date of trial	–	–
27.	Wife	Withdrawals CBA streamline account #...07	–	$100,000.00
28.	Wife	Withdrawals Suncorp everyday options #...14	–	–
Gross assets	$4,205,745.49[8]	$4,311,246.69
29.	Husband	CBA gold awards card #...95	($2,757.90)	($2,757.90)
30.	Wife	CBA MasterCard #...50	–	–
31.	Wife	CBA platinum awards card #...14	–	–
32.	Wife	CBA Diamond awards card #...85	–	–
33.	Wife	CBA Diamond’s award card #...89 (credit)	$8,124.51	$8,124.51
34.	Wife	CBA home loan #...909 (K Street)	($145,990.00)	($145,990.00)
35.	Wife	CBA home loan #...500 (D Street)	($247,572.00)	($247,572.00)
36.	Wife	CBA home loan #...400 (M Street)	($520,150.00)	($520,150.00)
37.	Wife	CBA home loan #...404 (D Street)	($415,010.00)	($415,010.00)
Total liabilities	($1,323,355.39)	($1,323,355.39)
38.	Husband	P Guntupalli Superannuation Fund as at 30 June 2013	$1,785,284.00	$1,785,284.00
39.	Wife	P Guntupalli Superannuation Fund as at 30 June 2013	$2,687,735.00	$2,687,735.00
40.	Husband	Guntupalli Superannuation Fund as at 30 June 2013	$190,067.00	$190,067.00
41.	Wife	SunSuper (as at 30 June 2013)	$44,228.00	$44,228.00
Total Super		$4,707,314.00	$4,707,314.00
Net All Assets		$7,589,704.10[9]	$7,695,205.30

[6] Schedule handed up by Counsel for the wife during submissions.

[7] Exhibit 3.

[8]Adjusted total to reflect the value of the wife’s professional practice based on the Schedule handed up by Counsel.

[9]Adjusted total to reflect the value of the wife’s professional practice based on the Schedule handed up by Counsel.

Item 22 – the value of Parthasarathi Pty Ltd

It became apparent during the course of submissions made by Counsel that, contrary to earlier understanding, the parties disagreed about the value of Parthasarathi Pty Ltd (“the company”), the corporate entity through which the wife has historically operated her professional practice.
The reason for this difference of $5,501.20 in a “pool” of property with a total value of no less than $7,589,704.10 arises from a difference in attitude toward the agreed opinion[10] held by the single expert[11] to the effect that the value calculated for the company (as outlined in his report dated 20 December 2013[12]) understated the value of the wife’s motor vehicle by approximately $5,000.00.
[10] as conveyed to the court by Counsel.
[11]appointed to value Parthasarathi Pty Ltd, the wife’s professional practice and the husband’s professional practice.
[12] Affidavit of Mr O filed 8 January 2014.
I do not accept the submission made by Counsel for the wife that I should not accept the single expert’s opinion about this matter. I arrive at this conclusion noting that no challenge was mounted via cross examination of the single expert following the Court being informed by Counsel for both parties of the matter outlined above.
Consequently, I am persuaded that the value of the company is $1,034,666.20.

Item 27 -the asserted add back

The husband asserts that the Court should notionally add back an amount of $100,000.00 to the pool of property amenable to orders to be made pursuant to s 79 of the Act. This amount was withdrawn by the wife in the period from 21 October 2012 to 11 November 2012.
Counsel for the husband submitted that, absent the existence of particulars and/or corroborating documents evidencing the manner in which such monies were spent, the Court would not accept the wife’s explanation that such sums were spent on matters including – but not limited to – education expenses, holidays, food and general living.[13] It was submitted that justice and equity required the inclusion of such sum (albeit notionally) as property available for division because, without the wife’s actions, the total value of the property at trial would be $100,000.00 more than it currently is.
[13] Wife's affidavit filed 18 November 2013, paragraph 11.
Counsel for the husband also submitted to the effect that the funds removed by the wife had their genesis in, and were generated by, a “family business” to which the husband had made significant non-financial contribution prior to separation.[14] In essence, even if the funds were generated by the wife as a consequence of the exercise by her of her earning capacity post separation, such earning capacity arose with the assistance of contributions made by the husband during cohabitation.
[14] NHC & RCH (2004) 32 Fam LR 518, [57].

Unsurprisingly, Counsel for the wife submitted that the Court should accept the wife’s explanation about the dissipation of the funds and that, in any event, as such expenditure occurred no less than about four years after separation, it amounted to expenditure of the wife’s post-separation earnings.[15] Counsel further submitted that, as the notional adding back of property no longer in existence is an exception rather than the rule[16] the Court would not be persuaded in the circumstances of this case to proceed in the manner advanced on behalf of the husband.
[15] Ibid at [56].
[16]M&M [1998] FamCA 42; Cerini & Cerini [1998] FamCA 143, [46]; Omacini & Omacini (2005) 33 Fam LR 134, [39]; Kouper & Kouper (No 3) [2009] FamCA 1080, [107].
Whilst delivered before Stanford, in Lovine & Connor and Anor (2012) FLC 93-515[17] the Full Court said, at [101]–[103]:
101. The judicial act here was the determination of just and equitable property Orders in the exercise of the discretionary jurisdiction conferred by s 79. Within the exercise of that overall discretion, when an issue of financial conduct conveniently described generically as a notional add-back arises, it is not determined by the application of fixed legal rules. Guidelines have been formulated over time in a number of well-known authorities concerning issues surrounding notional add-backs (see, for example, Omacini & Omacini (2005) FLC 93-218; DJM & JLM (1998) FLC 92-816; Townsend & Townsend (1995) FLC 92-569; Kowaliw & Kowaliw (1981) FLC 91-092; Browne & Green (1999) FLC 92-873; Chorn & Hopkins (2004) FLC 93-204; Cerini & Cerini [1998] FamCA 143; Polonius & York (supra)).
102. Undoubtedly such guidelines promote uniformity of approach and diminish the risks of inconsistency and capricious and arbitrary adjudication, but as the High Court made clear in Norbis & Norbis (1986) FLC 91-712 (“Norbis”), such guidelines do not constitute binding rules of law. Mason and Deane JJ said in Norbis at 75,166:
The nature of the issues which arise under sec 79 is such that there is either little or no scope for giving guidance in the form of binding rules of law.
103. Understood in this context, disposition of an issue concerning a potential notional add-back does not involve the application of a fixed rule to the facts on which its operation depends. Rather, the exercise is one of discretion within a discretion. That is, a discretion as to the manner in which the issue of notional add-back is to be treated within the overarching discretion of determining just and equitable orders under s 79.
[17] delivered 24 October 2012 – pre Stanford
In Watson & Ling [2013] FamCA 57[18], delivered after Stanford, Murphy J, sitting at first instance, said as follows:
[29] Where, but for the disposal of money or other property by one party, legal or equitable interests in it would have been part of those existing at trial, it may be possible to assert, in the particular circumstances of a case, that the money or property is nevertheless to be considered as part of the existing legal or equitable interests of the disposing party (sham transactions and circumstances where it can be established that the property is held, for example, on trust by another for the disposing party are examples). The investigation of issues of that type might be seen to be part of the establishment of the existing legal and equitable interests at trial – a task which the majority of the High Court in Stanford (at [37]) said should be the first step in considering, pursuant to s 79(2) (cf s 90SM(3)), whether it is just and equitable to make an order.
[30] In many other cases, for example those which come within the convenient rubrics of “waste” (see Kowaliw & Kowaliw (1981) FLC 91-092) or “premature distribution” (see, for example, Townsend), legal and equitable title to the money or property will have passed. It could not be said that the money or property is part of the “existing legal or equitable interests” of a party or the parties. The notion that such money or property should be treated as a “notional asset” or “notional property” appears to run contrary to the thrust of the decision in Stanford: at issue is the consideration of two separate questions, the first of which is whether existing legal or equitable interests should be altered.
[31] Yet, of course, unilateral actions of the type described might very well be a consideration – indeed, in an appropriate case, an important consideration – in deciding if any order should be made altering the existing interests of a party or parties.
[32] Where the court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have been significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.
[33] How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SM(3)( r) (see, for example, Omacini & Omacini (2005) FLC 93-218, Browne & Green (1999) FLC 92-873 and Cerini). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
[34] The assessment of the circumstances under discussion is, ultimately, a matter of discretion (see, for example, Cerini at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be “the exception rather than the rule” (Cerini at [46]) that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, Chorn & Hopkins (2004) FLC 93-204) will require further consideration in an appropriate case.
[35] Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; gain the circumstances of the individual relationship must be assessed.
[18] delivered 12 February 2013.
In Bevan & Bevan [2103] FamCAFC 116 the plurality[19] said, at [79]:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under S 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of the forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75 (2) (o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[19] Bryant CJ & Thackray J; delivered 8 August 2013
In addition, Finn J said, at [160]:
These reminders that the jurisdiction under s 79 is a jurisdiction to alter individual interests in title to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so-called “add backs”), and perhaps also of the unsecured liabilities of one or both parties. It may well be that these matters should more strictly be considered in making findings under s 79(4)(e)(i.e. s75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79. But these questions do not arise in the present case, and are thus for another day.
Unsurprisingly given the view he expressed in Watson (supra), in Baglio & Baglio[20] Murphy J, in discussing the parties’ agreement that money spent on legal fees should be “added back” to the pool, said at [186]:
In my view, the role of “add backs” or, more specifically, the concept of “notional property” in property proceedings may need to be revisited in light of Stanford. The emphasis on the predominance of existing legal and equitable interests raises concerns over the place of “notional” assets or a “notional pool” as a means of dealing with a finding of inequity or injustice arising from the use by one party of property or funds which, but for that use, would have been part of the legal and equitable interests of the parties at trial. In that respect, I repeat here what I said in Watson & Ling [2013] FamCA 57 at [27] – [35].
[20] [2013] FamCA 105, delivered 27 February 2013.
In Harper & Harper [2013] FamCA 528 (delivered 19 July 2013) Macmillan J stated at [63] and [64]:
The clear statement of principle in Stanford is that in order for the Court to determine whether it is just and equitable to make orders pursuant to s 79, it must first identify the existing legal and equitable interests of the parties in the property. As Murphy J said in Watson & Ling at paragraph 30, the concept of “‘notional property’ appears to run contrary to the thrust of the decision in Stanford”. Whilst justice and equity might require recognition of either the unfairness of the conduct of one of the parties, which arguably would apply to both the Kowaliw type situations or where there has been a premature distribution of property, as noted by Murphy J, that conduct could be taken into account pursuant to s 75(2)(o).
It is not yet clear how add backs will be approached as a result of Stanford. …It is quite possible that as a result of the decision in Stanford there will be little place for add backs in the assessment the Court must make of the parties’ legal and equitable interests. At the very least the decision in Stanford is likely to emphasise once again the exceptional nature of add backs.
I consider that the “overarching discretion” of determining just and equitable orders between the parties can best be met by declining to add-back notionally the $100,000.00 removed by the wife. Consistent with what I consider to be the underlying theme of the decisions referred to above, with which I agree, I intend to consider the issue of the $100,000.00 when considering other relevant s 75(2) matters.
The consequence of the findings about Items 22 and 27 in the Table at paragraph 9 is that the value of the property of the parties (inclusive of superannuation interests) as at the date of trial is $7,595,205.30.

The s 79(4) considerations

In considering the relevant matters mandated by s 79 of the Act, it must be remembered that:
a)“community of ownership arising from marriage has no place in the common law”[21]; and
b)that there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[22] and
c)the exercise of the discretion conferred must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity.[23]
[21]Stanford and Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
[22] Mallet v Mallet (1984) 156 CLR 605.
[23] Bevan & Bevan [2013] FamCAFC 116, [73].
As fell from Counsel at the commencement of the hearing, this case involves assertion and counter assertion: it is, very much, a proceeding in which the Court is asked to assess evidence which may colloquially be described as “he says/she says”. Because of the nature of the areas of substantial disagreement – namely, as to the extent or otherwise of each party’s non-financial contributions to the acquisition, conservation or improvement of property and contributions to the welfare of the family and care of the children– and the state of the evidence relied on by each party, the consideration of whose recounting to prefer takes place in the absence of corroborating evidence. I am left to assess the evidence given by each of the parties and, where necessary, reach conclusions about the evidence that I prefer.
In her affidavit filed 11 November 2013, the wife said, at [9] :
Our daughters [S] and [R] are both currently attending University and are still financially dependent on me.
However, in her affidavit filed, on 18 November 2013, in reply to the husband’s trial affidavit, the wife said, at [8]:
In June 2013 [R] decided to defer her … studies and earn some money from working. From June 2013 [R] continues to be financially dependent on me in as much my house is available to her and I continue to pay [R’s] private health cover.
The wife started working in a temporary capacity at two professional practices in October 2012. She worked three days per week in each practice. Her evidence about her income[24] was either that she earned an estimated E$2,500.00/week before tax or that she earned approximately $3,500.00 per week gross[25]. The documentary evidence reveals that:
a)in the financial year ended 30 June 2013 she received $56,361.00 as a result of her work at Q Business: remembering that she did not commence working there until sometime in October 2012, this amounts to an average of about $,1657.00 before tax per week; and
b)in the period from 20 December 2012 until 23 June 2013 she received $66,216.00 as a result of her work at T Business (about no less than $2,878.00 per week before tax on average).
[24] Financial Statement filed 18 November 2013.
[25]Affidavit 11 November 2013, paragraph 70
Doing the best that I can on the evidence, I consider it apparent that, in the period from 20 December 2012 until 23 June 2013, the wife’s gross average weekly income was in the vicinity of about $4,535.00 before tax. Even if the wife’s obligation to remit GST is taken into account, her average weekly income was in the vicinity of about $4,000.00 before tax.
I also consider it more likely than not that the wife attempted to restrict the husband’s understanding of the extent of her financial benefit from her temporary work by asking that the practice for which she engaged in such employment refrain from depositing her remuneration into her bank account[26] as it was earned: this resulted in substantial lump sum deposits being made:
a)         on 27 June 2013 - $102,355.61; and
b)        on 8 August 2013 - $38,644.00 and $30,366.00.[27]
[26]        the details of which she had disclosed
[27]        Exhibit 4.
As a result of the inconsistencies and the matters outlined in paragraphs [28] -[32] above, I have concluded that, where there are differences in the evidence given by the husband and the wife, I prefer the evidence given by the husband unless otherwise indicated.

Consideration of the contributions of the parties

The husband did not accept that the wife had cash savings in an amount of about $20,000.00 at the commencement of their cohabitation in 1982. The wife asserted that she had saved such funds from her employment in Melbourne in the year prior to cohabitation. I am not persuaded, on the balance of probabilities[28], that the wife had accumulated what was, at that time, a significant amount of money. In arriving at this conclusion I take into account the evidence as to her study prior to commencement of cohabitation, that she supported herself financially during this period and that, whilst she was employed in Melbourne for 12 months prior to the commencement of cohabitation, she also had to meet her living costs from whatever salary she received at that time.
[28] Evidence Act 1995 (Cth) s142(1).
I therefore conclude that, at the commencement of their 26 year cohabitation, the parties had little property of little value.

Financial contributions to acquisition, conservation or improvement of property

It is uncontroversial that, when considered overall, the wife made overwhelming direct financial contributions during the course of cohabitation. However, the parties are in dispute as to the extent of financial contributions made by the husband.
I accept that between 1984 and 1987 the wife worked full time whilst the husband completed a Master’s degree. I also accept that during this period the husband undertook work of a handyman nature and contributed the proceeds of the same to the support of the parties.
In the period from 1987 until 1996 the parties’ three children were born. The wife completed her studies and qualified as a professional. In this period the husband operated a mobile professional practice from the G Street property, then occupied by the parties as their matrimonial home. I accept the husband’s evidence that he made direct financial contribution in the manner he asserts to the G Street property. I accept that the husband made financial contributions necessary to support the family, as it was then constituted, when the wife was studying for her degree.
In the period from 1996, when the children were aged 10, 4 and 2 years respectively, until 1998 the wife was employed in supervised practice. I accept that she worked very long hours during this period. I accept that both parties applied whatever income they earned during this period to the support of the family, including the acquisition of property.
It is not in dispute that the husband commenced working for the wife’s practice in 1998. What is in dispute, however, is whether he simultaneously maintained his practice or, rather, focused entirely upon his role within the wife’s practice. I consider it more likely than not that the parties jointly determined that the husband would not pursue specialisation within his profession. I arrive at this conclusion in the context of each of the parties having previously undertaken significant periods of study (which can only have had a restrictive impact on the income they earned at the time), that at this time the parties had three children requiring their care and attention, the relatively modest return from the husband’s practice and that the wife had finally reached the position where she was able to open her own practice from which it might have been expected that she would obtain a significant return. I accept that the wife told the husband that he could earn more from working for her practice than he could in his own practice.
The husband was initially paid about $45,000.00 a year for the duties he performed. Over subsequent years, his level of remuneration grew until he was paid $75,000.00 per year. I accept that this remuneration was applied generally to the support of the family or to property of the parties available for consideration in these proceedings.
Whilst Counsel for the wife suggested to the husband that the sum paid to him by the wife’s practice was disproportionate to the tasks he performed, I consider that the wife cannot resile from the decisions she made in the management of her practice. Her sole determination to pay the husband a salary of $75,000.00 can only have reflected her decision that such sum appropriately remunerated him for the tasks he was required to do. Any conclusion contrary to this can only logically lead to a further conclusion that, in order to increase business expenses and, consequently tax deductions, the wife inappropriately determined to pay the husband an amount greater than that properly required to remunerate him. It was not submitted that I should reach this conclusion. I accept that, in his paid role within the wife’s practice, the husband carried out the tasks he outlined in his affidavit.

Counsel for the wife submitted that, in assessing the contributions made by each of the parties to the acquisition of property, the Court should take into account and afford “credit” to the wife for the fact that, as a consequence of the manner in which the borrowings to fund the purchase of the various real properties acquired during the period of cohabitation was undertaken – namely, that the wife was sole borrower of such funds – she exposed herself, to the exclusion of the husband, to full liability under the terms of the mortgages executed as security for the borrowed funds.
I do not accept this submission because, whilst the wife was potentially exposed to greater liability than the husband as a consequence of being the only party to the mortgages, she was not at any time called upon to make any greater contribution than the husband as a consequence of the existence of the mortgages.

Contributions other than financial contributions to acquisition, conservation or improvement of property

The wife made only grudging concessions as to the extent of the husband’s non-financial contribution to the acquisition, conservation or improvement of property: for example, when asked whether she accepted that he had mowed and trimmed hedges at some of the properties, her immediate answer was “he wanted to”. Such response demonstrates clearly and unequivocally the wife’s position that the husband contributed very little during the course of their 26 year cohabitation.
I accept the husband’s evidence that, because the wife was engaged in working long hours, he:
a) located some properties subsequently purchased as investments;
b)did maintenance tasks in relation to at least some of the investment properties;
c)oversaw or supervised renovations to the properties (paid for by the wife with funds sourced from her practice[29]);
d)liaised with and engaged in applications to the local authority in order to obtain the necessary permissions to enable the wife to operate the practice from the M Street premises.
[29] other than to the G Street property.
I accept that, because the wife was engaged for significant hours in obtaining professional qualifications and in the operation of her practice, the husband made the greater non-financial contributions to the acquisition, conservation or improvement of property. I also accept that his contributions in this regard permitted the wife to work the hours that she did in the practice without diversion.

Contribution to the welfare of the family including in the capacity of homemaker or parent

The wife’s Counsel submitted, and I accept, that the wife worked very hard for remuneration over a long period of time. The husband readily concedes this. In fact, he relies upon her hard work as the foundation for the submission that, consequently, he performed the majority of homemaking and parenting tasks during cohabitation. He does not assert that the wife made no contribution to the welfare of the family or care of the children: rather, he emphasises that such contributions were limited by the extent of her working in her practice 6 to 6½ days per week.
I accept that, from when the wife was employed in supervised practice, the husband dropped the children to day care, was involved in feeding them, changing them and performed other parenting tasks. I consider that, as a consequence of the wife’s long working hours, it is more likely than not that the husband performed the majority of household and parenting duties.
I accept the husband’s evidence that, because the wife worked very long hours in operating the practice, he undertook the primary care of the children. I accept that, in addition to the matters referred to above, he took the children to extra-curricular activities and otherwise cared for them during times when the extent of the wife’s work commitments precluded her from undertaking such tasks.
I am therefore persuaded on the evidence that, from 1993 when the wife commenced working in supervised practice, which necessitated her spending significant periods of time away from the home, the husband undertook the majority of homemaker and parenting tasks. I consider that this permitted the wife to devote herself significantly to the development of her practice and freed her from the majority of the homemaker and parenting responsibilities in a way which permitted her to pursue her career without significant interruption: Ferraro & Ferraro (1993) FLC 92-335 at pp 79,568-9.

Post separation contributions

Counsel for the wife submitted that the wife made significant contribution to the support of the children after separation. Authority supports the propositions that adult children are “children of the marriage” within the meaning of s 79 of the Act and that payments made to them – and, I consider, in support of them – can be regarded as contributions within the meaning of s 79.[30]
[30]See, for example: Dougherty v Dougherty (1987) 163 CLR 278; Jones & Jones (1990) FLC 92-143; C and C [1998] FamCA 143; Gollings & Scott (2007) FLC 93-319.
I accept that the provision of accommodation in the former matrimonial home and financial support after separation to the two younger children (the older of whom would have reached majority by, or soon after separation) amounted to a contribution to the “children of the marriage” within the meaning of s 79(4)(c) of the Act. I consider that, whilst the financial support provided by the wife is a contribution made solely by her from the utilisation of her earning capacity, the provision of accommodation should be regarded as a contribution by both parties given that the former matrimonial home was acquired and maintained during the marital relationship.
I accept the wife’s unchallenged evidence that, after separation, she was solely responsible for paying the education expenses for the two youngest children. I accept the husband’s unchallenged evidence that, after separation, he contributed $5,000.00 toward the purchase, by one of the children, of a motor vehicle. I accept that he travelled with one of the children to northern Queensland to support her during her participation in interviews.
The wife acquired the I Street property for $395,000.00 in December 2008, using funds ($420,000.00) borrowed on an interest only basis. This property now has an agreed value of $340,000.00. The wife acquired the M Street property for $505,000.00 in January 2011, using funds ($520,000.00) borrowed on an interest only basis. This property now has an agreed value of $490,000.00.
Therefore, whilst acquired after separation without the direct contribution of the husband, such acquisitions did not contribute net value to the property of the parties.
Whilst the wife met the expenses associated with the ownership of the properties (save the G Street property which expenses were met by the husband) she did so with the benefit of the receipt of rental income.
I accept the wife’s unchallenged evidence that, after separation, she made significant contributions, totalling about $534,000.00, to her superannuation interest. Whilst she did so by utilising the earning capacity to which I consider that the husband had made indirect contribution during cohabitation, it cannot be forgotten that these superannuation contributions would not have occurred but for her continuing to work hard in her practice.

Conclusions as to Contributions: s 79(4)(a)-(c)

In assessing the contributions made by the parties the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ. Whilst this process is neither an accounting or mathematical exercise,[31] it does involve a movement from “a qualitative evaluation of contributions to a quantitative reflection of such evaluation” – that is, a “leap” from words to figures.[32]
[31] See: Norbis v Norbis (1986) 161 CLR 513 at 522; Brandt and Brandt (1997) FLC 92-758.
[32]Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J.
I consider that, whilst the wife made the overwhelming financial contributions to the acquisition, conservation and improvement of the property of the parties during cohabitation, the husband made the overwhelming contribution to the welfare of the family and in the capacity of homemaker and parent in the same period.
The contribution of any party as a homemaker and parent must be assessed not in any “merely token way”, but in terms of its ‘true worth’ to the accumulation of property during the cohabitation: Mallet and Mallet (1984) 156 CLR 605.
I conclude that, in the period from the commencement of cohabitation until the parties separated in July 2008, the contributions of the parties, albeit different, were equal.
Counsel for the wife submitted that an appropriate assessment of contributions to trial needed, however, to reflect the post separation contributions made by the wife. Counsel for the husband submitted to the effect that, whilst the wife made financial contributions post separation, as the source of these originated in what she described as the joint “family business”, the Court should reach a conclusion of equality of contributions as at the date of trial.
Whilst the wife’s earning capacity was sourced in and arose out of the qualifications she obtained during the course of cohabitation, the utilisation of such capacity rested solely in her. In the post separation period, her efforts in utilising her income earning capacity occurred in circumstances where:
a)the husband made no contribution to the acquisition and conservation or improvement of property of the parties other than to the G Street property;
b)the husband made no contributions in the nature of homemaker or parenting contributions other than as outlined above in paragraph 54; and
c)she was responsible for the primary care and for meeting, substantially, the financial needs of the two younger children who were 17 and 14 years of age respectively at the date of separation.
I consider that, the wife’s post separation contributions are such as to compel a conclusion that the assessment of the parties’ contributions in the period from separation until trial favours the wife. I take into account the post separation contributions made by the wife as outlined above and conclude that a quantification of contributions to trial as to 55 per cent to the wife and 45 per cent to the husband is just and equitable between the parties.
The assessment of contributions in this manner results in a disparity in the parties’ respective financial positions in favour of the wife in an amount of about $769,520.00 which, I consider, appropriately reflects the wife’s post separation contribution to superannuation interests and her application of income from the practice and her temporary work to the financial support of the children.
None of the orders proposed by either party will have any effect on the earning capacity of either party.

Relevant s 75(2) matters

The wife is 56 years of age and currently works in a temporary capacity for two businesses. She works three days per week at each business.
The husband is 67 years of age. He is currently in receipt of Centrelink benefits. He has been able to access his superannuation interests in the Guntupalli Superannuation Fund but, until the hearing, was unable to roll over his entitlement to superannuation in the P Guntupalli Superannuation Fund into a fund nominated by him. Sensibly the parties reached agreement in relation to this issue during the hearing.
Whilst the wife has previously experienced a period of ill health following her receipt of notification from her professional regulatory body that restrictions would be imposed upon her practising, the evidence does not support a conclusion that such ill health is ongoing.
The husband has previously been diagnosed with prostate cancer. In late 2013 he had surgery which has left him with ongoing symptoms such as bladder and bowel incontinence and rectal bleeding. He may require further surgery for his incontinence. Whilst the medical evidence establishes that the existence of prostate cancer should not be an impediment to the husband’s future participation in paid employment, [33] I accept that the described side effects may well affect his future ability to work for remuneration.
[33] Affidavit of Dr U filed 18 November 2013, annexure "DPS3".
In any event, even if further surgery rectifies the husband’s current medical condition to the extent that there is no ongoing impact upon his ability to undertake remunerative work, I consider it is highly unlikely that he will generate any substantial income in the future given:
a)the limited returns from the practice in the 2011 – 2013 financial years during which the income generated ranged between $33,302.00 and $42,951.00; and
b)that his practice incurred losses in the 2011 and 2012 financial years and achieved marginal profit in the 2013 financial year; and
c)his age.
In contrast, the wife retains significant earning capacity. It is overwhelmingly superior to that retained by the husband. The benefit which may flow to her from the utilisation of this capacity is apparent from a consideration of the previous return to her from her practice:

Financial year

Return

2010

$375,026.00

2011

$425,410.00

2012

$576,832.00

The wife closed her practice in October 2012. She accepted during cross examination that, in about May 2013, she submitted a business plan to her insurers in anticipation of recommencing the practice. No details of this event was, however, contained within either of the affidavits relied upon by her at the hearing.
I consider that the wife was less than forthcoming about her future plans for the recommencement of her practice.
I consider it more likely than not that the wife will recommence operation of her own practice in the foreseeable future. I arrive at this conclusion given:
a)the wife’s history of hard work and current engagement in employment for 6 days per week; and
b)that the premises from which she previously operated the practice have remained untenanted since the closure of the practice in October 2012 and are currently immediately available for her use; and
c)that there is no impediment from the relevant government agency to her recommencing practice in the same manner she did prior to October 2012; and
d)that the return available to the wife from operating her own practice (as noted in paragraph 72) is likely to be significantly greater than the remuneration she receives from her employment in a temporary capacity where such activity sees her receive only 50 per cent of the fees she generates; and
e)that, by virtue of the P Guntupalli Superannuation Fund’s ownership of the premises from which her practice previously operated, there are likely to be associated financial benefits to the wife should she recommence her practice there.
I take into account that each of the parties currently has available to them the property outlined in paragraph 9 and that, by virtue of his age, the husband will be able to access, in whatever manner he deems appropriate, his superannuation entitlements.
Whilst the wife has previously provided assistance to the adult children of the relationship, they are now either financially self-supporting or have the capacity for financial self-support.

Matters considered pursuant to s 75(2)(o)

The $100,000.00 withdrawn by the wife between 21 October 2012 and 11 November 2012 and the $75,000.00 about which the husband was cross-examined

The wife withdrew a total of $100,000.00 by making 20 individual withdrawals of $5,000.00 each in the period from 21 October 2012 to 11 November 2012. These withdrawals occurred in circumstances where she had started working in a temporary capacity sometime in October 2012.[34]
[34]Financial Statement filed 18 November 2013 in which the wife asserts that she had been working for the relevant businesses for one year and one month.
The wife says that she spent this money on general living expenses, holidays and in meeting the educational costs for the children.
In exercising the discretion to determine the manner in which, in determining just and equitable orders, the wife’s withdrawal of $100,000.00 in about 22 days in 2012 is to be treated, it is appropriate to note the comments of the Full Court in M & M [1998] FamCA 42 at paragraph 2.11 that:
There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial judge.
In the absence of any documentation substantiating any of the asserted expenses, I have significant reservations about the wife’s evidence in this respect. Such relative extravagance seems to me to be at odds with the approach to financial expenditure which has seen the parties accumulate over $7 million worth of property and superannuation entitlements from 1982 until the present. It is also at odds with the husband’s unchallenged evidence that, rather than employing a more qualified person to act as a receptionist in her practice, the wife would use the services of students.
I am not persuaded that the wife’s actions were required to meet reasonably incurred living expenses or that such expenditure was reasonable.
I accept the husband’s evidence of a “round robin” withdrawal and re-deposit of the $75,000.00 about which he was cross-examined. It follows that I do not accept the submission made by Counsel for the wife to the effect that there is an “offsetting” of this amount against the $100,000.00 withdrawn by the wife.

The failure to rent the practice premises post October 2012

Despite the commercial rent for the premises from which the wife’s practice previously operated being in the vicinity of $40,000.00 per year,[35]the premises have remained vacant since 1 October 2012 when the wife closed her practice. No rent has been paid by the company to the P Guntupalli Superannuation Fund for the premises since 1 July 2013.
[35] Affidavit of Mr V filed 29 August 2013.
The consequence for the P Guntupalli Superannuation Fund – the owner of these premises – is obvious.
I accept that the husband wanted the superannuation fund to continue to receive rent for these premises after the wife closed her practice. In the absence of documentary evidence to corroborate the wife’s assertion to this effect, I do not accept that she told her then lawyer to tell the husband that she would move her practice from the premises if an alternative tenant could be found. I find that the Fund’s non-receipt of rental income from the premises occurred as a consequence of the wife’s decision to cause the company not to pay rent and not to vacate the premises so that an alternative tenant could be found.

The wife’s failure to invest the funds of Parthasarathi Pty Ltd

The wife operated her practice through Parthasarathi Pty Ltd which currently has assets of $974,056.00 in cash or cash equivalents. She accepted during cross-examination that her previous practice had been to invest this cash amount in term deposits. She also accepted that she had not done so since July 2013. She accepted that she could have invested the money in term deposits and earned up to six per cent but chose not to and left the money in a savings account earning interest of around two per cent.
Such failure to act after separation in the same manner that she had acted before separation has had the consequence of diminishing, although in an unquantifiable amount on the evidence, the value of the property of the parties as at the date of trial.

Conclusions as to s 75(2) factors

Counsel for the husband submitted that an adjustment in the husband’s favour of seven per cent for the relevant 75(2) matters would do justice and equity between the parties. If acceded to, the property of the parties and their superannuation interests would be divided 57 per cent in his favour and 43 per cent in the wife’s favour. Such conclusion would result in a 14 per cent differential between the parties and would see the husband receive property and superannuation entitlements valued at about $1,077,328.80 more than the property and superannuation entitlements retained by the wife.
Counsel for the wife relevantly submitted that, given the property and superannuation entitlements available to the husband as a consequence of the quantitative expression of the assessment of respective contributions, the Court would not, having considered the relevant section 75(2) factors, conclude that it was just and equitable as between the parties that there be any adjustment in favour of the husband.
My conclusions as to the respective contributions of the parties will result in a 10 per cent differential between the parties: the wife will receive property and superannuation entitlements valued at $769,520.00 more than the property and superannuation entitlements received by the husband.
Given the matters considered pursuant to s 75(2) I am not satisfied that such an outcome would be just and equitable. Rather, having regard to:
a)my conclusion about the wife’s withdrawal of $100,000.00 in circumstances where she was soon after employed; and
b)the wife’s decision not to rent out the practice premises after 1 October 2012; and
c)the wife’s decision not to invest the company funds after separation in the same manner that she had done before separation; and
d)the disparity in the parties’ respective income earning capacities; and
e)the likely impact of the husband’s health issues on both his capacity to utilise his inferior income earning capacity and in increasing his costs of self-support; and
f)the disparity in the age of the parties with the likely consequence that the wife will be able to utilise her significantly superior earning capacity to improve her financial position in the future whilst the husband will be left to rely upon the property and superannuation interests he has and receives as a consequence of these proceedings,
I conclude that an adjustment of five (5) per cent in the husband’s favour is required to ensure a just and equitable outcome.

Justice and equity of the proposed orders

The consequence of the conclusions outlined above is that, having regard to the parties’ respective contributions to trial and the relevant s 75(2) matters, at the conclusion of a long relationship, productive of three now adult children, during which each contributed fully and to the best of their respective abilities and from which one of the parties – the wife – retains a significant income earning capacity which may be utilised to achieve substantial monetary return, the parties will share equally in the combined property and superannuation interests.
Given the agreement about assets to be retained and received by each party, a superannuation-splitting order will be required to achieve this result. Consequently, the wife’s superannuation entitlement in P Guntupalli Superannuation Fund will be reduced by an amount of $554,575.79, and the husband’s interest in the P Guntupalli Superannuation Fund will be increased by this amount.
The consequence for the parties of the conclusions outlined above is summarised in the table below which outlines property and superannuation each will retain or receive.

HUSBAND		WIFE
Property	Value	Property	Value
G Street, Suburb H	$360,000.00	K Street, Suburb L	$320,000.00
B Street, Suburb C	$435,000.00	I Street, Suburb J	$340,000.00
D Street, Suburb E	$380,000.00	M Street, Suburb A	$490,000.00
Suncorp Account #...00	$14,231.77	F Street, Suburb C	$610,000.00
Suncorp eOptions #...08	$10,602.88	Suncorp everyday options #...12	–
CBA business premium #...07	$15,090.60	Suncorp everyday options #...70	–
CBA business online Saver #...32	$14,539.51	CBA streamline #...07	$119,050.69
AMP shares 1413	$5,892.00	CBA Netbank Saver #...58	$13,012.57
Suncorp shares 931	$11,107.00	AMP shares 991	$4,132.47
Wesfarmers shares 242	$9,970.00	Toyota Prado	–
Toyota Rav 4	$14,000.00	Parthasarathi Pty Ltd	$1,034,666.20
N Business	–	Loan owing to wife from Parthasarathi Pty Ltd as at 30/6/13	$9,951.00
CBA gold awards card #...95	($2,757.90)	CBA Diamond’s award card #...89 (credit)	$8,124.51
P Guntupalli Superannuation Fund (inclusive of super-split)	$2,339,859.79	CBA home loan #...909 (K Street)	($145,990.00)
Guntupalli Superannuation Fund	$190,067.00	CBA home loan #...500 (D Street)	($247,572.00)
CBA home loan #...400 (M Street)	($520,150.00)
CBA home loan #...404 (D Street)	($415,010.00)
P Guntupalli Superannuation Fund (less amount of super-split)	$2,133,159.21
SunSuper	$44,228.00
Total Non-Super assets Total Superannuation TOTAL	$1,267,675.86 $2,529,926.79 $3,797,602.65	$1,620,215.44 $2,177,387.21 $3,797,602.65

It is clear, therefore, that each party will receive or retain investment properties from which income may be derived. Save for credit card debt, the husband will be debt free. By virtue of his age he will be able to access his superannuation entitlements.
The wife will continue to be responsible for debt in an amount of about $1,760,000.00. This is the position which existed at separation. Whilst she will no longer have the B Street or D Street properties from which contribution can be made to the repayment of this debt, her position at the commencement of the hearing was that, having transferred those properties to the husband, she would continue to be responsible for debt in an amount of about $1,614,010.00. The wife will continue to obtain the taxation benefits available from the negative gearing of rental properties. She will retain significant superannuation entitlements.
For the reasons outlined above, I am satisfied in all the circumstances of this case that it is just and equitable and appropriate that orders be made adjusting the existing interests of the parties in property and superannuation interests such that there is an equal division of the total value of the property and superannuation interests between the parties.
Consequently, I make orders in the terms appearing at the commencement of these Reasons to give effect to the conclusions outlined above.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 February 2014.

Associate:

Date: 21 February 2014

[2014] FamCA 86

21 February 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Consent

Procedural Fairness

Res Judicata

Fiduciary Duty

Financial year	Return
2010	$375,026.00
2011	$425,410.00
2012	$576,832.00