HARRADINE & HARRADINE

FAMILY COURT OF AUSTRALIA

HARRADINE & HARRADINE

[2014] FamCA 188

FAMILY LAW – PROPERTY SETTLEMENT– Final Orders – whether just and equitable to make orders – contributions – husband made significant financial contributions – husband’s evidence unreliable in relation to valuation of assets – wife made both financial and homemaker contributions – treatment of addbacks and previous partial property settlement – just and equitable distribution of property – division of net assets of 55 per cent to the husband and 45 per cent to the wife

FAMILY LAW – SPOUSAL MAINTENANCE – Lump Sum – application by wife – whether wife able to adequately support herself – whether husband will be reasonably able to maintain wife – Court not satisfied necessary criteria have been met – application dismissed

FAMILY LAW – ADULT CHILD MAINTENANCE – Lump Sum – application by wife – adult child undertaking part time study and participating in sporting activities – unable to establish provision of maintenance is necessary – application dismissed

Family Law Act 1975 (Cth) ss 66J, 66L, 72, 74, 75, 79, 80

Bevan & Bevan (2014) Fam LR 387
Cosgrove & Cosgrove (1996) FLC 92-700/706?
Hickey & Hickey (2003) FLC 93-143
Maker & Maker [2012] FMCAfam 147
Marcello & Marcello [2013] FamCA 254
Marklew & Marklew [2009] FamCA 753
Norman & Norman [2010] FamCAFC 66
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Harradine

RESPONDENT:

Mr Harradine

FILE NUMBER:

ADC

1350

2011

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

13-17 May 2013; 30-31 May 2013; 19 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke, QC

SOLICITOR FOR THE APPLICANT:

S J McKinnon and Associates

COUNSEL FOR THE RESPONDENT:

Mr Berman, SC

SOLICITOR FOR THE RESPONDENT:

Howe Martin & Associates

Orders

That if before the date of this judgment the husband has paid to the wife the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) pursuant to the Orders of the Court of 19 June 2013 the husband do pay to the wife the sum of TWO MILLION FIVE HUNDRED AND SIXTY THOUSAND SEVEN HUNDRED AND FORTY DOLLARS [$2,560,740] within sixty [60] days of this date such sum to be payable to S J McKinnon & Associates Trust Account on behalf of the wife PROVIDED THAT HOWEVER if the husband has not paid the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) to the wife pursuant to the Orders of the Court of 19 June 2013 the sum to be paid within sixty [60] days shall be TWO MILLION SIX HUNDRED AND SIXTY THOUSAND SEVEN HUNDRED AND FORTY DOLLARS [$2,660,740] AND PROVIDED FURTHER that if the husband should default in the time specified then interest shall accrue at the rate prescribed by the Family Law Rules and at the expiration of the said sixty [60] day period the husband in his own capacity with respect to Property B and in his capacity as Appointer of the Harradine Family Trust as a director of C Pty Ltd, the trustee of the Harradine Family Trust do cause such of the following properties to be sold as may be necessary to satisfy the wife’s entitlement pursuant to these orders in the following order:
(1.1)The property known as Property D;
(1.2)The property known as Property E;
(1.3)The property known as Property B;
(1.4)The property known as Property C
PROVIDED THAT if C Pty Ltd shall fail or refuse in its capacity as trustee of the Harradine Family Trust to authorise or direct or execute the necessary documents to effect the sale of the said Properties D, E and C then the husband in the exercise of his power of appointment with respect to the Harradine Family Trust do remove C Pty Ltd as the trustee of the said Trust and do appoint the husband and the wife as trustees of the said Trust.
Until the husband shall have paid to the wife all sums due and payable to her pursuant to these Orders the Order made herein on 21 December 2012 namely that pending further Order the husband do pay to the wife the sum of TWO THOUSAND FIVE HUNDRED DOLLARS [$2,500] per week spousal maintenance do continue.
For the purposes of compliance with this Order and not otherwise the husband is released from the compliance with paragraphs 1, 2 and 4 of the Orders of 19 June 2013.
Until the husband shall have paid to the wife all of such sums as may be due and owing to her pursuant to the Orders of the Court, the husband be restrained in his personal capacity as the Appointor of the Harradine Family Trust and as director of C Pty Ltd from:
(4.1)exercising his power of appointments other than in accordance with the terms of these Orders;
(4.2)from selling, transferring, encumbering or otherwise dealing with the real property the subject of these Orders other than in accordance with these Orders and to the extent of the limited borrowings currently secured over the said properties.
Upon compliance by the husband paragraphs 1 and 2 of these Orders the wife do transfer and/or assign her interest in the partnership Harradine Partners to the husband at tax values as at the 30 June 2013.
The husband do indemnify the wife and keep her forever indemnified with respect to any debts or liabilities of the partnership including any taxes or penalties including the wife’s personal income tax, Capital Gains Tax or GST payable or arising out of any interest or involvement of the wife in the said partnership and any distributions or profits attributable to her arising howsoever out of or in connection with her interest or involvement in the said partnership.
Upon compliance by the husband with paragraphs 1 and 2 hereof the wife do transfer to the husband any credit loan account that she may have in the said partnership and the husband do indemnify her with respect to any debit loan account she may have in the said partnership.
Upon compliance by the husband with paragraphs 1 and 2 hereof the wife do transfer to the husband her shareholding in C Pty Ltd.
The husband do indemnify the wife with respect to all debts or liabilities of C Pty Ltd including in its capacity as trustee of the Harradine Family Trust and the Harradine Investment Trust.
The wife do assign to the husband any credit or debit loan account that she may have in the Harradine Family Trust or the Harradine Investment Trust and that the husband do indemnify the wife with respect to any debit loan account that she may have with respect to either of the said trusts.
The wife do retain as her sole property the motor vehicles and horse floats in her possession, the contents of the I Street property, the contents of Property C delivered up to her in accordance of the Orders of the Court, her savings and investments.
The husband do otherwise retain as his sole property his interest in the partnership Harradine Partners, the sole trading business Harradine, C Pty Ltd, the Harradine Family Trust and the Harradine Investment Trust and all other real or personal property in his possession or control but subject to the Orders of this Court.
Within sixty [60] days of today the parties agree as to the division of the household goods, furniture and contents of Property C and failing agreement within twenty-one [21] days thereafter the wife to provide to the husband a list of selected items, furniture and household goods up to and not exceeding in value one half of the valuation in accordance with the values of the valuer (one-half SIX THOUSAND FIVE HUNDRED AND FIFTEEN DOLLARS [$6,515]) and thereafter the husband to make the same available to the wife within fourteen [14] days for the wife to collect at her own cost such items. The balance of the contents, furniture and household goods at Property C to remain the property of the husband. Thereafter each party to retain the furniture and household goods as their sole property free from any claim by the other.
If at the date of this Order the parties have not paid the outstanding F School fees equally, the same be paid as to one-half each by the parties PROVIDED THAT if one of the parties has paid the full amount the other party shall reimburse that party for one-half of the said school fees within seven [7] days of this Order.
That the wife’s application for lump sum spouse maintenance and adult child maintenance are dismissed.
Save as to costs all applications are dismissed and removed from the active pending cases list.
Certified fit for Senior Counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harradine & Harradine 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 ADELAIDE

FILE NUMBER: ADC 1350 of 2011

Ms Harradine

Applicant

And

Mr Harradine

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Harradine (“the wife”) and Mr Harradine (“the husband”) separated in 2010 after approximately 22 years of marriage. These proceedings arise out of the application for property orders pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) filed by the wife in the Federal Magistrates Court of Australia (as it then was) on 12 April 2011.

Procedural history

The following is a summary of the procedural history that is relevant to the final disposition of the proceedings. Interim issues which have no bearing on the final hearing are not mentioned.
The wife commenced these proceedings by filing an Initiating Application on 12 April 2011. The orders sought in this Initiating Application have been superseded by subsequent amended Initiating Applications. The wife sought property orders that would have the effect of the matrimonial asset pool being equally divided between the parties. An order for lump sum spousal maintenance against the husband was also sought.
The husband filed his Response to the wife’s Initiating Application on 6 June 2011. The orders sought in this Response to the wife’s Initiating Application have been superseded by subsequent amended Responses to an Initiating Application. The husband sought property orders that would have the effect of the matrimonial property pool being divided with him receiving 75 per cent and the wife receiving 25 per cent.
Federal Magistrate Cole (as he then was) made orders in the following terms on 22 December 2011:
1.The husband forthwith reinstate the Westpac Agri Finance Variable Loan Facility Account and the Westpac Cheque/Overdraft Business Account into the joint names of the parties such that either party shall be a signatory to the account and both parties are required to sign jointly for any withdrawal in excess of TEN THOUSAND DOLLARS ($10,000).
2.Save as set out in these orders, the husband be restrained from:
(a)banking any income from any farming or partnership activity or enterprise into any account other than the Westpac Partnership accounts referred to in paragraph 1 of these orders; and
(b)disposing of or dealing with any farming and/or partnership income or asset without the prior written consent of the wife, such consent to not be unreasonably withheld.
3.Pending final orders for property settlement the wife prepare and maintain the books of account for the partnership of [Harradine Partners] and that the husband ensure that the wife has access to all documentation (inclusive of bank statements and invoices etc.) to enable her to properly maintain the books of account and to complete all necessary taxation documentation as required.
4.Upon compliance with paragraph 1 of these orders, the parties have liberty to draw on the partnership account to meet the reasonable living expenses of the parties and the children.
5.There be liberty to the parties to apply in the event that they cannot agree the reasonable living expenses.
6.The wife take all steps necessary to facilitate the reinstatement of the partnership accounts.
7.The proceedings be listed for direction on 31 January 2013 at 9.30am.
8.The wife’s costs be reserved.
Federal Magistrate Cole (as he then was) listed the matter before his Honour for a three day trial. The hearing dates were vacated by his Honour on 16 August 2012 with new dates for a hearing set down for February 2013.
The wife filed an Application for Contravention Orders on 23 March 2012. The wife alleged that the husband had contravened orders 1, 2 and 3 of the orders made by Federal Magistrate Cole (as he then was) on 22 December 2011 and order 3 of the consent orders certified by Federal Magistrate Brown (as he then was) on 12 January 2012. This application was withdrawn and dismissed on the first day of the trial before me on 13 May 2013.
On 21 December 2012 Federal Magistrate Cole (as he then was) made an order that the husband pay the wife the sum of $2,500.00 per week pending further order. The trial listed for February 2013 was also vacated on that date. His Honour thereafter transferred the matter to this Court.
Registrar Paxton listed the matter for final hearing before me on 19 February 2013 and made trial directions on that date.
On 15 March 2013 I made an order that the husband pay the wife $50,000.00 by 20 March 2013 and a further $100,000.00 within 28 days by way of interim property settlement.

The Hearing

The trial commenced on Monday 13 May 2013 and proceeded through to Friday 17 May 2013, when the trial was adjourned part-heard for two further hearing days on Thursday 30 May 2013 and Friday 31 May 2013. Closing submissions were heard on 19 June 2013.
The wife was represented by Ms Pyke QC on instructions of S J McKinnon & Associates. The husband was represented by Mr Berman SC (as he then was) on instructions of Howe Martin & Associates.
I reserved judgment on 19 June 2013. I also made the following orders pending the delivery of this judgment:
1.The husband is restrained and an injunction is granted restraining the husband in his personal capacity and as the Appointer of the [Harradine] Family Trust and as director of [C] Pty Ltd from:
(a)executing his power of appointments other than in accordance with the terms of these orders;
(b)from selling, transferring, encumbering or otherwise dealing with the real property known as “[Property D]”, “[Property E]” and “[Property C]”.
2.Any net proceeds of sale from the property known as “[Property B]” be paid into an interest bearing account in the names of the husband and wife pending judgment with the solicitors to provide the Court with a joint document setting out particulars of the proceeds of sale to be taken into account in the judgment.
3.By way of interim property settlement the husband pay to the wife the sum of ONE HUNDRED THOUSAND DOLLARS [$100,000.00] forthwith upon receipt of any of the sums due and owing from [G] Pty Ltd or [H Company] referred to in paragraph 4 hereof.
4.The husband be restrained and an injunction is granted restraining him from dealing with the deferred payments for grain with respect to [J] Pty Ltd due 12 July 2013 in respect for contracts numbered … and … and in respect of [H Company] in respect of contracts numbered … and other than depositing to the account of [Harradine] and the husband is restrained and an injunction is further granted restraining him from dealing with the said funds until he has paid to the wife the sum of ONE HUNDRED THOUSAND DOLLARS [$100,000.00] by way of partial property settlement pursuant to these orders.
5.Paragraph 1 of the Order made on 21 December 2012 with respect to the husband paying to the wife the sum of TWO THOUSAND FIVE HUNDRED DOLLARS [$2,500.00] per week spousal maintenance is continued.

Orders Sought

The wife relied on her Amended Initiating Application filed 12 March 2013. The orders sought were:
1.That by way of settlement of property or alteration of interests in property pursuant to Section 79 of the Family Law Act 1975 as amended that the assets of the parties or either of them be divided equally as between the applicant wife and the respondent husband and that to give effect to said equal distribution:-
(a)the respondent husband do pay to the applicant wife the sum of 4.1 MILLION DOLLARS ($4,100,000.00) within thirty (30) days of a final order made herein payable to S J McKinnon & Associates Trust Account on behalf of the applicant wife PROVIDED THAT if the respondent husband should default in making payment in the time specified herein then interest shall accrue at the rate prescribed by the Family Law Rules (or as otherwise ordered) and at the expiration of the said thirty (30) day period the following properties shall be sold to give effect to the said payment together with the interest thereon;
(1)    firstly as to the property known as “[Property D]” and
(2)    secondly as to the property known as “[Property E]” and
(3)    thirdly as to the property known as “[Property B]” and
(4)    fourthly as to the property known as “[Property C]”;
(b)the respondent husband do release to the applicant wife within fourteen (14) days of a final order made herein the items listed in the schedule attached hereto and marked “A”;
(c)the applicant wife do retain all assets in her possession at the date hereof or received by her subsequent to separation.
2.That pursuant to Sections 72 and 74 of the Family Law Act 1975 as amended the respondent husband do pay to the applicant wife within thirty (30) days of the date of order herein lump sum spousal maintenance in the sum of TWO HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($275,000.00);
3.That pursuant to Section 66L(1) of the Family Law Act 1975 as amended the respondent husband do pay lump sum child support for the adult child [MS K HARRADINE] born on the … day of … 1994 in the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) payable to the applicant wife;
4.That the respondent husband do pay the wife’s costs of this Application;
5.Such further or other order as to this Honourable Court seems fit.
In the Outline of Case document of the wife filed in early May 2013 the wife sought property settlement adjustment on the basis that the contributions of the parties should be considered equal and that the wife receive a further five per cent adjustment taking into account section 75(2) factors.
The wife continued to seek spousal maintenance and adult child support for the child Ms K Harradine.
The husband relied on his Amended Response to the wife’s Initiating Application filed 1 May 2013. The final orders sought were:
1.That by way of settlement of property or alteration of interests in property:
1.1.That the assets of the parties be divided as to 75% thereof to the husband and 25% thereof to the wife.
1.2.That the wife do transfer her shareholding in [C] Pty Ltd to the husband.
1.3.That the wife do resign as a partner in the partnership of “[Harradine Partners]” and do transfer and/or assign her interest in the partnership to the husband at tax values, or, in the alternative, the [Harradine Partners] partnership be dissolved as at 30 June 2013.
1.4.That the wife do resign as an authorisee from the account held with Telstra in the joint names of the husband and the wife.
1.5.That the husband do indemnify the wife and keep her forever indemnified with respect to any debts or liabilities of the partnership or of [C] Pty Ltd (including in its capacity as Trustee of the [Harradine] Family Trust.
1.6.That the wife do transfer or assign to the husband any credit loan account that she may have in the [Harradine] Family Trust or the [Harradine] Investment Trust.
2.That the wife do pay the husband’s costs.
3.For such further or other orders as this Honourable Court thinks fit.
The Case Outline document of the husband filed by leave during the hearing on 13 May 2013 sought that the “asset pool” be split 70 per cent to the husband and 30 per cent to the wife.

At the conclusion of the trial, counsel for the husband submitted that the property settlement adjustment between the parties should be on the basis that the husband receives 70 per cent of the net assets and the wife receive 30 per cent of the net assets, together with an adjustment for income attributable to her for the 2013 financial year and a further sum of additional income for the wife’s alleged share of the 2014 financial year income of $231,000. It was proposed that the calculations be made on the basis that the wife has retained, or received assets (being the motor vehicles, horse floats, shares, house contents and superannuation of $106,756) and that there should be add backs of a further $286,145 (being an adjustment of the loan account drawings by the parties of $136,145 and the partial property settlement orders made in March 2013 and April 2013 of $50,000 and $100,000, total being $286,145). According to the husband that would bring into account $392,901 as received or retained by the wife. It was proposed that the adjustment be made on the basis that the wife’s 30 per cent of Property B would be calculated after the property had been sold and that the remaining assets should be adjusted according to the values attributed by the husband.
The husband opposed any spousal maintenance order or any adult child support order being made.

Documents and witnesses

The wife relied upon the following documents:
a)Amended Initiating Application filed 12 March 2013;
b)Trial affidavit filed 1 May 2013;
c)An affidavit of her solicitor Sharon McKinnon annexing a report from business valuer Mr A of L Firm;
d)Updated Financial Statement filed 1 May 2013;
e)Outline of Case document filed 8 May 2013;
f)An affidavit of her solicitor Sharon McKinnon annexing a livestock appraisal of stock report from Mr M of Company N filed with my leave at the hearing on 13 May 2013;
g)An affidavit of Company P accountant Mr O filed 22 April 2013;
h)Chronology, List of Documents and Summary of Argument document filed 6 May 2013;
i)Trial affidavit of the parties’ daughter Ms K Harradine filed 9 May 2013; and
j)Schedule of assets and liabilities received on 19 June 2013.
In addition to her oral evidence, the Court also heard oral evidence of Mr M, Mr O and Ms K Harradine.
The husband relied upon the following documents:
a)Amended Response to Initiating Application filed 1 May 2013;
b)Trial affidavit filed 1 May 2013;
c)Trial affidavit of the husband’s father Mr R Harradine filed 1 May 2013;
d)Financial statement filed 1 May 2013
e)Affidavit of accountant Mr Q filed 6 May 2013;
f)Affidavit of valuer Mr S filed 6 May 2013;
g)Updated Case Outline document filed with my leave during the hearing on 13 May 2013; and
h)Balance sheet filed 10 May 2013 with an updated version received 19 June 2013.
In addition to his oral evidence, the Court also heard the oral evidence of the husband’s father, accountant Mr Q and valuer Mr S.
Other documents became evidence as a result of their deponents being cross-examined on their contents or were tendered as exhibits during the hearing.

The Law
Property Orders under the Act

Part VIII of the Act is entitled “Property, spousal maintenance and maintenance agreements.” “Property” is defined in s 4(1) of the Act as meaning, “in relation to the parties to a marriage or either of them”, as the “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.” Section 79 of Part VIII of the Act is entitled “Alteration of property interests”:
Section 79
Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy Trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)    an order requiring:
(i)     either or both of the parties to the marriage; or
(ii)    the relevant bankruptcy Trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
…
Subsection 75(2) is relevant as it is referred to in subsection 79(4)(e) of the Act. Subsection 75(2) states:
Section 75(2)
(2)    The matters to be taken into account are:
(a)     the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)     himself or herself; and
(ii)    a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)     any law of the Commonwealth, of a State or Territory or of another country; or
(ii)    any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person -- the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)     the property of the parties; or
(ii)    vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of the person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Until recently, the process for the making of orders pursuant to s 79 of the Act was commonly dealt with by reference to a four stage process (see, eg, Hickey & Hickey (2003) FLC 93-143 at [39]). That process involved:
a)Identification and valuation of the property of the parties;
b)Identification and evaluation of contributions to the property (including property no longer owned by the parties);
c)Identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2); and
d)Consideration of matters of justice and equity.
In the High Court of Australia decision of Stanford v Stanford (2012) 247 CLR 108 the joint judgment of French CJ, Hayne, Kiefel and Bell JJ noted three fundamental propositions relevant to the operation of s 79 at 120. Those propositions were conveniently summarised by Bryant CJ and Thackray J in Bevan & Bevan (2014) Fam LR 387 at 402:
The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and 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;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
It is unclear how the decision in Stanford (Supra) alters the four step approach to s 79 property distributions (see, eg, the comments of Bryant CJ and Thackray J in Bevan (Supra) at 401). However, as noted by Finn, May and Murphy JJ in Norman & Norman [2010] FamCAFC 66 at [60], the established four step approach “merely illuminates the path to the ultimate result” and is not an approach that is mandated by the Act. Rather, it is the “mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result.”
The approach adopted throughout this judgment is as follows:
a)Identification of the existing legal and equitable interests in property of the parties, the effect of which will be to identify all of the assets which are available for distribution;
b)Determinate pursuant to s 79(2) of the Act whether, “having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order” and in doing so avoid “a determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), [as such a determination] would erroneously conflate what are distinct statutory requirements” as outlined in the third fundamental proposition identified by the joint judgment in Stanford & Stanford (Supra).
c)Identification and evaluation of contributions to the property (including property no longer owned by the parties) and contributions to the welfare of the family as set out in s 79(4)(a) to (c) of the Act;
d)Identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2); and
e)A final consideration of whether the result arrived at upon the conclusion of the above processes is a just and equitable outcome for the parties.

Spousal Maintenance

The wife seeks an order for lump sum spousal maintenance.
The applicable test is set out in section 72 of the Act. Section 72 states:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Section 72 contemplates the consideration of two factors prior to the granting of an order for spousal maintenance:
(a)Firstly, consideration of “the extent [if any] that the [respondent to the application] is reasonably able” to maintain the applicant for spousal maintenance; and
(b)Secondly, consideration of whether the applicant “is unable to support herself or himself adequately” with reference to the factors set out in 72(1) (a)-(c) as informed by any relevant matters in s 75(2).
Section 75 provides:
(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2)      The matters to be so taken into account are:
(a)      the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)         himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)         the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)        a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4)      In this section:
“party” means a party to the marriage concerned.
Section 74(1) provides a broad discretion in relation to an order for spousal maintenance. The section states:
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

Section 80 sets out various orders which can be made under Part VIII of the Act. Section 80 states:
(1)The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specific transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e)appoint or remove Trustees;
(f)order that payments be made direct to a party to the marriage, to a Trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)impose terms and conditions;
f)make an order by consent;
g)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
h)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
i)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
ii)The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
iii)If a bankruptcy Trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.
iv)If the Trustee of a personal insolvency agreement is a party to a proceedings before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.
v)Subsections (4) and (5) do not limit paragraph (1)(d).
As the applicant in the proceedings for spousal maintenance, the wife bears the burden of proof (Marklew & Marklew [2009] FamCA 753 at [32]).

Adult Child Maintenance

The wife also seeks an order for lump sum adult child maintenance for the child Ms K Harradine. Ms K Harradine is 20. Section 66L(1) reads:
Section 66L(1)
Children who are 18 or over
(1)A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a)to enable the child to complete his or her education; or
(b)because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect, when or after, the child turns 18.
The relevant matters to consider in determining whether to make a child maintenance order are set out at section 66J of the Act:
Section 66J
Matters to be taken into account in considering financial support necessary for maintenance of child
(1)In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:
(a)the matters mentioned in section 66B; and
(b)the proper needs of the child (this is expanded on in subsection (2)); and
(c)the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).
(2)In taking into account the proper needs of the child the court:
(a)must have regard to:
(i)     the age of the child; and
(ii)    the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and
(iii)   any special needs of the child; and
(b)may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
(3)In taking into account the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i)     the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and
(ii)    any entitlement of the child or any other person to an income tested pension, allowance or benefit.
(4)Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
Warnick J in Cosgrove & Cosgrove (1996) FLC 92-700 set out a list of factors that were likely to bear upon the exercise of the discretion to make a child maintenance order in respect of a child that has reached the age of majority:
(i)whether the “nexus” of dependence between the child and parents had ceased and the application amounts to a “resurrection” of that dependence;
(ii)the period between initial cessation of dependence (if any) and the application;
(iii)whether the child had completed the course of education intended by the parents to outfit him/her for employment sufficient to support himself/herself;
(iv)other assistance, benefits or education which the child has received;
(v)the ability of the child to complete the course in question;
(vi)the likelihood of the child completing the course in question;
(vii)the financial capacity of the child to maintain himself/herself to the completion of the “education”;
(viii)the financial circumstances of those persons responsible for support of the child (generally the parents);
(ix)the filial relationship between the child and the person from whom maintenance is sought.
Any consideration of whether an adult child maintenance order is appropriate is to be informed by an objective standard as to what is reasonable in the particular circumstances with reference to the parents’ resources and the child’s actual and potential resources (Federal Magistrate Brown (as he then was) in Maher & Maher [2012] FMCAfam 147).

Relevant background

The wife was born in 1961 and is now aged 52 nearly 53. The husband was born in 1963 and is now aged 49. The husband acquired an interest in the farming partnership of R Harradine Partners (the husband’s parents) in 1982.
In 1984 the husband purchased the property known as Property B for $250,000. There is a dispute about how he acquired that property and if monies were owing in relation to the purchase of that property at the time of the marriage.
The parties were married in 1988.
There is a dispute about the actual date of separation. The husband maintains the parties separated in July 2010. The wife maintains that the parties separated on 18 September 2010. The marriage was therefore a long marriage of some 22 years. The actual date of separation is not a significant factor in these proceedings.
There are four children of the parties, Ms T Harradine born in 1992, Ms K Harradine born in 1994, Mr U Harradine born in 1996 and V born in 1998.
The wife sought maintenance for the adult child, MS K Harradine.
The wife maintains at the commencement of marriage she had items of personal property and $120,000 in savings.
In 1988 the wife lent the husband’s parents the sum of $40,000 by way of an interest free loan. $8,000 was repaid with the balance of $32,000 being retained as representing the wife’s contribution towards the partnership R Harradine Partners in which the wife became a partner in 1995.
It was also in 1995 that Property C was transferred by the husband’s father to the company C Pty Ltd for a total consideration of $890,000.
Property C was held by the Harradine Family Trust, of which the husband was and remains the Appointor. The reimbursement of the husband’s parents for the debt due in relation to Property C, the forgiveness of the debt and the payment of various sums by the parties and the entities they controlled to the husband’s parents were relevant issues in these proceedings.
Subsequently, the parties and the entities which they controlled purchased more farming real estate, being Property D land purchased in 1988 for $750,000; Property E purchased in May 2007 for $1,750,000 and Property W purchased in April 2009 for $610,000.
During 1998 the wife received an inheritance from her father of $110,000.
In 2003 the parties formed a new partnership, Harradine Partners. The former partnership of R Harradine Partners (of which the husband, wife and the husband’s parents were involved) transferred plant, stock and equipment to the new Trust.
Informal arrangements were alleged to have been made by which the husband’s parents were paid money which went through various entities. At times the payments were described as “rent”, but were received by the husband’s parents as superannuation.
It is agreed that the wife received a further inheritance from her step-mother in 2004 which was used to reduce debts in the business.
It was also in 2004 that the husband and wife purchased an interest in the business known as X Pty Ltd. This business interest was owned by the Harradine Investment Trust.
In 2009 the wife received a further inheritance of $84,000 of which she contributed $70,000 to partnership debt.
The wife maintained that the parties did not separate until September 2010. The husband however says that it was in July 2010.
In October 2010 the wife withdrew large sums from the partnership funds (the cheque account and business loan). Several days later the wife transferred the money back to the business account.
The husband has continued to operate the farming business. The accounts have been prepared as if the partnership between the husband and wife continued. The husband however claims to have operated as a “sole trader” since 1 July 2011.
Both parties have made substantial drawings from the loan account of the businesses. The husband seeks that the difference in the drawings be accounted for by way of an addback. The wife opposes this.
It is conceded by the parties that during the marriage the husband primarily undertook the farming responsibilities.
It is also conceded that during the marriage the wife’s contributions were primarily related to the household duties and the care and upbringing of the children. Since the separation the wife has had responsibility for the care of the children, save and except, that from July 2011 Mr U Harradine returned to reside at the farm with the husband. Ms T Harradine resided at the farm with the husband from November 2010 until August 2011.
Since separation the wife has continued to support the children in their after school and sporting activities, and in particular horse-riding.

Discussion of evidence and findings in relation to issues in dispute

There was considerable dispute about the valuation of assets and the treatment of amounts paid to, or monies withdrawn by, the parties since the separation. There was also a dispute as to the assessment of the contribution made by the husband relating to the acquisition of the farming properties. Other significant disputes related to the treatment of other items described as “addbacks” and the treatment of the partial property settlement payments made.
The Court received the affidavit of evidence-in-chief of the wife and her brief evidence-in-chief. Part of her evidence included the wife’s assertion about the discrepancy in the number of stock valued at the direction of the husband and the discrepancy in the figures provided by the husband in relation to sales of seed.
During cross-examination by counsel for the husband, the wife accepted that the husband was the owner of Property B at the date of marriage and that she had not put any money towards the purchase of Property B.
The wife’s evidence generally in cross-examination indicated that she was not necessarily aware of the intricacies in relation to the establishment of the Trusts and the details of the balance sheets for each of the entities, but was involved in the general day to day running of the farming business during the parties’ relationship.
Having been shown documents from previous accounts, the wife acknowledged that there appeared to be deferred payments arranged in relation to crops in the past. The wife was also presented with documentation which she conceded indicated that the husband’s parents had received distributions from the various entities in the past.
During cross-examination the wife confirmed her evidence-in-chief that she had removed money from the business following the separation and had subsequently repaid that money. She did not concede that her actions had damaged the business.
Also during cross-examination, the wife confirmed that the updated valuations carried out by Mr S of the plant and equipment were not undertaken following her instructions, but on the sole instructions of the husband.
In an overall sense her evidence was not significantly challenged.
The adult daughter of the parties, Ms K Harradine, was called to be cross-examined. The wife relied upon the affidavit of the adult daughter filed on 9 May 2013.
The daughter was cross-examined about the expenses and invoices in her affidavit. She confirmed that she was intending to continue her university course and that she was working part-time fitting in with her university course, netball activities and horse-riding. She conceded if it were not for her netball and horse-riding activities she would have more hours free for her employment.
Other than this concession the evidence of the adult daughter was not challenged in cross-examination.
Mr O, accountant, provided oral evidence further to his affidavit. In evidence-in-chief he confirmed that in his expert opinion the delayed payment for grain of $709,000 should be included as an asset. He gave evidence that the assets of the business should also include the value of seed which was ready for planting.
Following upon cross-examination by counsel for the husband and re-examination, the evidence of the expert remained that the $709,000 deferred payment for grain should be included as an asset in these proceedings.
On that significant issue I accept that the evidence of the expert called on behalf of the wife forms a basis upon which to bring in the deferred payment of $709,000 as an asset in these proceedings.
The wife relied upon the evidence of the Agri Business Manager, Mr M, who gave further evidence following upon his affidavit. He confirmed that he had not counted the stock himself and was relying upon the email from the husband as the basis for the stock numbers. He confirmed that his valuation was based upon, and depended upon, the information provided by the husband. There was no cross-examination and Mr M was released.
The husband relied upon his affidavit and gave further oral evidence-in-chief. During that evidence he conceded that $709,000 worth of grain was based upon figures he had provided to Mr Q and contracts which he had entered into.
In his evidence-in-chief he confirmed that the value of livestock upon which he was relying was based upon the number of stock he had given to the valuer based upon the books which he had kept. He agreed that there had been 403 head of stock that had not been included in Mr M’s valuation. He said that he had not included them because he was concerned that if they were valued and then sold there would be a “double-value”. He also conceded that there were some other anomalies in the stock tallies, but maintained that there were only 403 head of stock which had not been brought into account in Mr M’s valuation.
The husband also gave evidence that the increase in the expenses of rent in the partnership accounts, being rent payments paid to the Trust, was an “adjustment”. He referred to it as an accounting number and not something that he had “physically paid”. His evidence was that this was a superannuation payment to his parents which is “called rent”.
The husband was cross-examined at length by counsel for the wife. His explanation for the differences in the stock numbers and the stock valued was detailed and at times inconsistent to the extent that his evidence could not be considered reliable as to the method he used to provide stock numbers from the stock tally to the valuer for valuation.
During cross-examination the husband was asked questions about the cessation of the partnership and the ongoing steps taken by the husband to operate the farming business as a sole trader. He conceded that he had not taken any action to consult the wife as a partner during the contested period but then maintained that the financial returns were all prepared on the basis that it had been “treated as a partnership”. He conceded that notwithstanding the way in which the accounts had been prepared, he had in fact been running the business as a sole trader and had “absolute control”.
The husband acknowledged the decision of Federal Magistrate Cole (as he then was). He was asked whether he had ignored the orders and behaved in a way inconsistent with the orders of the Federal Magistrates Court (as it then was) on the basis that “he didn’t like the Judge’s decision”. His answer was “I took steps to protect the business”. He conceded that one of the decisions about which he did not tell the wife was his decision to defer payment of the $709,000 in relation to the grain.
When cross-examined about the increase in payments of “rent” made to the parents by the Trust the husband was not initially able to answer the question about whether his parents had asked for an increase in payment. His answer, after being asked the question again and after considerable pause, was that they would have asked for a super contribution. He conceded that he had discussed the increased payment with the accountant, Mr Q. After considerable questioning the husband conceded that he had not involved the wife in this decision because it was his view that she would not agree.
The husband also conceded that he did not ask the wife whether the partnership funds should be paid into a separate sole account in his name because he considered that she would not agree to such an arrangement.
During cross-examination he also conceded that the orders of the Federal Magistrates Court (as it then was) for reinstatement of the partnership account were not obeyed. He said this was because he could not reinstate a closed account.
When questioned further about his failure to comply with the orders of Federal Magistrate Cole (as he then was) he said he could not recall whether he had told his parents about the orders of the Court. When questioned about whether his parents had refused to re-execute the guarantees, he eventually conceded that he had no memory of his parents saying they would not re-execute the guarantees for borrowings for the partnership.
When the cross-examination continued on the following day the inconsistencies in his oral evidence in cross-examination and his evidence in an earlier affidavit concerning the parents’ refusal to execute the guarantee continued. His evidence was not convincing. He eventually attempted to provide an excuse for his inconsistent evidence by saying that the order was “highly impractical”.

When cross-examined by counsel for the wife, the husband agreed that it was his decision to defer the payments for the crop. It was put to him that he had deliberately chosen not to tell the Court about the deferred payment for the crop and his reply was words to the effect that “it was just a cash flow”. It was put to him that it was a unilateral decision to defer the payment and his response at first was “we made the decision”. When cross-examined about who the people were that he referred to as “we”, he agreed that he had not discussed it with the wife and had not discussed it with the accountant. He agreed, that although the contracts had been disclosed, there was no reference to a deferred payment. During this cross-examination about the disclosure of the funds, the husband’s evidence was unacceptably inconsistent.
During cross-examination the husband conceded that benefits had been paid by the business to his parents.
The husband also conceded that for a period he did not collect rent for Property D on the basis that the tenant did work for him. When asked how the rent was accounted for in the Trust accounts of the Family Trust which owned the land, he said that the Trust did not receive any rent. He then conceded in cross-examination that he had previously been incorrect about the payment of the electricity by the tenants. He further conceded there was no record in the partnership accounts for the work being carried out by the tenant, nor any Workcover arrangements.
In cross-examination the husband said he purchased the Property B, using partnership funds. He was then asked whether the partnership had lent money to him and he said “he didn’t know how it was accounted for”. He was then asked whether he was denying that the money was a loan from the partnership and his reply was words to the effect that it was “thirty years ago and the relevance is what?”.
During cross-examination the husband also confirmed that when Mr S carried out the updated valuation, he did not carry out inspection of the real estate but Mr S had relied entirely upon information provided by the husband. He also confirmed that he did not tell the wife that he had commenced to carry on business as a sole trader, even though the financial records were maintained as if the partnership were continuing.
During the remainder of the cross-examination the husband frequently avoided answering the direct question or claimed that he had no memory of the transactions or particulars of the treatment of the financial transactions in the accounts.
Under re-examination by his own counsel he maintained that his savings and partnership funds contributed to the purchase price of Property B.
The husband said that at the time of the purchase of Property B he might have had some savings.
In summary the husband’s evidence on many matters relating to financial transactions, the interaction between the various business entities, his running of the business following the separation and the method in which the books of accounts were kept cannot be considered reliable.
The husband’s father, Mr R Harradine, gave evidence. In his evidence-in-chief he was asked about paragraph 8 of his affidavit filed 1 May 2013 which referred to superannuation payments being made during the period 2006 to 2012. He was also questioned about the rent paid. His evidence was that it was expected that there would be distributions to him and his wife from the Trust for living expenses “until the day we die”.
When asked about the purchase of Property B in 1984 and how the funds of $250,000 had been provided, he referred to a partnership between himself, his wife and the husband in these proceedings. His comment was “[The husband’s] loan account would have been debited to purchase that and profits in ensuing years credited to his account”.
During cross-examination it was clear that the relationship between the husband’s father and the wife in these proceedings had deteriorated considerably over the years.
The husband’s father confirmed that the accounts were prepared by Mr Q upon instruction from his son and without any direct independent input from him.
At the conclusion of his evidence the husband’s father gave evidence which confirmed that he had not been requested to sign fresh guarantees for the bank borrowings to be re-instated and had no recollection of being asked to sign such a document, nor did he have any dealings with Westpac about the reinstatement of the accounts.
The Chartered Accountant, Mr Q, gave evidence. He conceded that he was aware that the husband had been trading as a sole proprietor of the farming enterprise and that, notwithstanding his knowledge of this, the accounts prepared for the business were consolidated into the partnership accounts. His evidence was that when the property at Y Street was sold (which was owned by the Harradine Family Trust) the proceeds of sale were reflected in the financial accounts through loans between the Family Trust and the partnership. He also confirmed that the rent which was paid, was paid to the Family Trust to provide a superannuation contribution for the husband’s parents.
During cross-examination by Ms Pyke, QC the accountant admitted that he owed a duty to both partners of a partnership. He conceded that he had continued to prepare the accounts following upon the separation, but did not perceive that he had any conflict in his ongoing role in preparing the partnership returns without any input from, or consultation with, the wife. He further conceded that following the separation of the parties he gave separate advice to the husband in relation to the divorce. At first he said he considered them as separate matters and then conceded that there could be a “perceived conflict”. He conceded that he had not sought the wife’s input or provided her with advice since 30 June 2011.
The accountant conceded that he was aware that the husband had moved the funds into an account in his own name and was carrying on business as a sole trader, but that the accounts were being prepared as if the partnership had continued.
During the cross-examination he conceded that the consolidated accounts had been prepared on the basis that the sole trading business was “part of the partnership” and that he had prepared those accounts in that manner, notwithstanding that he was aware the husband was continuing to carry on the farming business as a sole trader and that the wife had not been consulted concerning the accounts.
He conceded that he had provided the consolidated accounts to the wife which he had asked her to sign, but had not told her that these accounts incorporated the sole trading “sub-entity” business carried on by the husband.
It was clear that the exhibits which were documents prepared by the accountant were prepared solely on instructions from the husband or information provided by him as to actual or estimated income and expenses.
During cross-examination the accountant gave evidence that confirmed that one of his accounts for $3,195 related to his advice to the husband about setting up a new sole business structure and giving him advice related to these proceedings or the parties’ separation (described as “the divorce”).
He conceded that the bundle of invoices included advice to the husband in relation to “divorce” matters which should be treated as personal.
During cross-examination he conceded that some of the “divorce” accounting fees were claimed as business expenses. The cross-examination also raised questions about whether some of the accounts included debits which had been put as drawings by the wife from the businesses when in fact they were the maintenance payable by the husband.
It was also conceded by the accountant that the decision to defer payment of a substantial sum of money due in relation to the crop was a decision that was made without any consultation by him or to his knowledge by the husband, with the wife.
He also conceded that the extra $150,000 rent payments had not been discussed with the wife and that these figures, namely, deferred crop payment of some $709,000 and increase of rent were significant matters which should have been discussed with the wife.
The accountant gave an explanation for the failure to include the deferred payment for the grain as an asset on the basis that the financial accounts were prepared on a “cash basis, not on an accrual basis”.
During re-examination the accountant confirmed that the debt allegedly owing to the husband’s parents in relation to the land given to the Trust in 1996 had been forgiven by them. Payments to the parents were described as rent payments and paid thereafter into their superannuation.
The property valuer, Mr S, was interposed during the evidence of the accountant. His affidavit was received and he gave further evidence concerning the basis of his valuation.
Cross-examination from counsel for the wife confirmed that the valuations of the plant and equipment were based upon the information and description provided to him by the husband. When provided with further information by counsel in relation to the Toyota Landcruiser he agreed that he would probably reconsider his valuation to be somewhere between $38,000 to $40,000 rather than $45,000.
Taking into account the evidence of the parties and each of the witnesses I am satisfied that it is appropriate to consider the wife and her witnesses as more reliable than the husband. The husband’s witnesses relied to a significant extent upon information provided to them by the husband and therefore their evidence is not as reliable as might otherwise be the case.
The main issues in dispute between the parties at the conclusion of the evidence were as follows:
(a)the valuation of the husband’s initial contribution relating to the purchase of Property B property and any loan or contribution on his behalf by his parents weighed against the contribution of the wife through her inheritances;
(b)the value of various assets and treatment of “addbacks”;
(c)the adjustments, if any, to be made in relation to the legal fees paid by the parties, the accounting fees paid by the husband in relation to the restructure of the business and other related charges, any adjustment for the rent not accounted for in relation to Property D and the electrical accounts;
(d)whether the deferred payments of $709,000 (now at agreed figure of $710,846) should be brought into account as an asset or “addback”;
(e)the treatment of the orders for partial property settlement in relation to the orders made on 20 March 2013 ($50,000) and ($100,000) and 19 June 2013 ($100,000);
(f)whether Property B, which was on the market for sale, should be brought into account at the values asserted by either of the parties ($1,058,000 husband or $1,323,000 wife) or whether the property should be dealt with on the basis that the proceeds of sale be divided upon sale;
(g)the assessment of contributions during the marriage including the arrangements made in relation to Property C;
(h)significant issues were outstanding in relation to both the orders for lump sum spouse maintenance sought by the wife and adult child maintenance sought by the wife.

The existing legal and equitable interest in property

Husband’s Assets	Agreed Value
1. Property C	$2,358,000
2. Property D	$1,534.000
3. Property E	$1,685,000
4. Property W	$564,000
5. Livestock (valued) – Agreed (save as to disputed addback items)	$487,024
6. AMP Shares	$3,033
7. X Pty Ltd	$193,000
8. Loan at Call (slight difference husband’s figures)	$85,562
9. Company Z – Agreed (Livestock Assets $5,000 & Monetary Loan Account @ March 2013 $7,957)	$12,957
10. Stored Stock Type 1 Semen (Company N valuation)	$780
Total:	$6,923,356

Assets of the husband in dispute were as follows:

Value asserted by Wife		Value asserted by Husband
1. Property B (on market for sale)	$1,323,000		$1,058,000
2. Plant & Equipment	$897,400		$827,000
3. New Plant purchases (total from itemised list)	$65,002		Nil by H
4. Part Share Stock Type 1 (as per 2012 draft financials Mr Q)	$19,525		Nil by H
5. Seed on hand (Exhibit 4 and evidence of husband) (Total from itemised list)	$44,700		Nil by H
6. Stock Type 2 1,250 (not valued) at say $85 (Company N Valuation) and Exhibit 3	$106,250		Nil by H
7. Stock Type 1 (not valued) at say $600 (Company N valuation) and Exhibit 3	$114,600		Nil by H
8. Deferred grain payments – Exhibits 1, 2 and letter Howe Martin & Assocs 22 April 2013 – Annexure “S” wife’s trial affidavit – figure agreed but treatment disputed (at times referred to as $709,000).	$710,846		Nil by H
Total:	$3,281,323		$1,885,000

Other figures which the wife seeks to be brought into account as “addbacks” or attributable to the assets retained by the husband.

1. Rent paid to Harradine Family Trust 2012 financials – Annexure KK wife’s trial affidavit ($199,000 less $50,000 for usual payments to Husband’s parents)	$149,000
2. Legal Fees	$192,912
3. Accounting Fees – Mr Q for Husband (divorce) Exhibit 8	$38,544
4. Mr AB’s rent – Property D – Exhibit 10 – 2 years at say $150 per week	$15,600
5. Mr AB’s Electricity – Exhibit 12 2011 – 2 quarters at say $630 per quarter 2012 – 4 quarters at say $850 per quarter 2013 – 2 quarters at say $850 per quarter	$6,560
6. Additional accounting fees incurred – unilateral restructure – Exhibit 19 Harradine Harradine Partners	$8,400 $13,500
Total:	$587,016

The Property C household contents value was agreed at $13,030. The husband sought to allocate $1,670 to the wife and retain $11,360 himself. The wife sought as part of the final orders a detailed list of items of furniture, equipment and personal belongings, the value of which is not determined. If the parties agree a division of the contents on an equal basis, then half the value should be included for each of the parties. ($6,515 each).

Wife’s Assets

The following matters were agreed in relation to the assets held by the wife.

1. I Street household contents	$6,600
2. Bank SA Everyday	$2,058
3. Bank SA Maximiser	$20,718
4. Westpac E-Saver	$12
5. AMP Shares	$1,905
6. Motor Vehicles and Horse Floats	$95,300
Total:	$126,593

Both parties included the following liabilities in their final statements:

Liabilities

1. (Husband) Westpac overdraft	$3,773
2. (Husband) Westpac Commercial Bills – Agreed	$1,800,000
3. (Husband) Westpac Variable Loan	$1,500,000 (or $1,496,000)
4. (Husband) Rural Bank Elders Loan – Agreed	$300,000
5. The wife asserted the jointly owed F School fees should be brought into account at	$11,423

As previously indicated the husband sought to bring into account an adjustment between the loan account monies drawn by the husband and the wife, being an amount which he calculated at $136,145 representing the difference in the drawings by each of the parties, less the horse float and Toyota brought into account at $64,313.
The wife did not concede that these amounts should be added back.
Similarly, the husband sought to bring into account the partial property settlements of $50,000 and $100,000. The wife sought to maintain that they not be brought into account as the monies had been used for the payment of legal fees already sought to be brought into account as the amount paid at the 19 June 2013, being $181,431. The wife conceded that that latter amount of legal fees should be brought into account, but not the $150,000 represented by the partial property settlement.
It was agreed that the superannuation of the parties should be brought into account at the figures provided, namely, for the husband at $27,186 and for the wife $16,581.
It is also necessary to take into account the interim property settlement order made on 19 June 2013 which directed the husband to pay the wife a further $100,000.
The value of the substantial property known as Property B, was sought by the wife to be included at the asking price of $1,323,000. The husband maintained that the property should be included at the valuation figure of $1,058,000. The husband also maintained that the property was on the market for sale and should be brought into account only at the value obtained when it was actually sold.
Paragraph 2 of the orders made on 19 June 2013 included the following:
2.Any net proceeds of sale from the property known as “[Property B]” be paid into an interest bearing account in the names of the husband and wife pending judgment with the solicitors to provide the Court with a joint document setting out particulars of the proceeds of sale to be taken into account in the judgment.
The Court has not received any document providing any information concerning the proceeds of sale of Property B, so it is assumed that it has not been sold.
The value to be attributed to the property is therefore the valuation figure of $1,058,000.
There was a disagreement as to whether a liability of the husband should be $1,500,000 or $1,496,000 as is asserted by the husband. On the information provided the $1,496,000 is the correct figure to be included.
I accept the evidence that the F School fees are required to be paid and as such that debt should be considered a “joint debt” leaving the husband liable to pay one half of the $11,423 which was due in relation to school fees.
Included in the wife’s claim for addbacks is an item referred to as “deferred grain payments”. It was agreed that the figure of $710,846 was an amount which was due and payable to the farming business, but which had been deferred. The husband maintained that this should be treated as “income” and not dealt with as an “asset”. Taking into account that the amount was a debt due by the Grain Entity, I conclude that it should be included as an asset of the husband and brought into account.
Taking into account the evidence given by the husband’s father and the reliable evidence given by the wife that there were monies to be paid back and still owing in relation to Property B when the parties married, I am not satisfied that the husband has established that his initial contribution, by way of Property B, is significant when offset against the monies and assets provided by the wife at the time of marriage.
There was a significant contribution made by the husband’s parents who provided assistance in relation to Property C and the ongoing farming partnership. This has been offset to some extent by the amounts paid by the entities to the father’s parents for superannuation.
The plant and equipment retained by the husband is to be brought into account at $827,000 together with the new plant purchases taken from the itemised list at $65,002.

Consideration of other claim/addbacks

The wife sought to bring into account as “addbacks” numerous items.
One of the “addbacks” sought to be included by the wife was $106,250 representing the 1,250 Stock Type 2 which she maintained had not been valued. She also sought to include $114,600 as the value of Stock Type 1 not included. The wife maintained that the valuation provided for the stock, together with the part share Stock Type 1 ($19,525) should be included in the calculations because of the failure by the husband to provide accurate information upon which the assets being retained in the farming business could be correctly ascertained.
The husband’s evidence in relation to the assets retained and their current value was frequently unreliable. Little weight can be placed upon the evidence of the husband as to the number of stock retained or the type of stock and the basis upon which the valuation should be maintained. It is, however, difficult to accept the submissions of the wife, which to a certain extent remain speculative, as to the method of calculating the number of stock.

It is not appropriate to bring the increased figures in as assets because the evidence is too speculative.
The wife also sought to bring into account item number 30 on the schedule, “Rent paid to [Harradine] Family Trust 2012 – Annexure “KK” to the wife’s trial affidavit, being $199,000 less $50,000 equalling $149,000. It is accepted by the husband that for many years before the separation the business paid to the Harradine Family Trust a rental figure of approximately $50,000 as the usual payment to the Harradine Family Trust. After the separation in the financial year ended 30 June 2012, this sum increased by $149,000. The husband maintained that this was an appropriate recompense to his parents through the Harradine Family Trust out of which they were allocated distributions in order to comply with the agreement that had been reached when the real estate was transferred.
I accept the evidence of the parties that the rent payment increased substantially after the separation of the parties and that this increase thereafter was passed on by the Family Trust to the husband’s parents as a distribution to them from the Trust.
It is not appropriate to addback this amount and attribute it as an asset of the husband. It is however, appropriate to take into account that the husband has distributed this amount to his parents as part of an arrangement which recompensed them, to a certain extent, for some of the value of the property transferred to the Trust.
Similarly, the wife sought to bring into account as an “addback” rent which was not collected for two years (Mr AB’s rent for Property D) $15,600 and electricity which was not reimbursed, $6,560 (Mr AB’s electricity). I accept the evidence indicates that the husband failed to collect the rent and electricity. I am not satisfied that it is appropriate to add these back and treat them as assets. Rather these are factors to be taken into account in assessing the overall orders to be made.
Both the husband and the wife have paid legal fees since the separation. The wife seeks to bring into account $192,912 paid by the husband. The wife has also paid as at 19 June 2013 the sum of $181,431 in legal fees. The figures are similar.
The wife maintains that her legal fees were paid using the monies received from interim property orders.
The evidence clearly indicates that the husband paid Mr Q for accountancy work, which was not directly related to preparation of accounts of the partnership, but was related to providing the husband with advice in relation to these property settlement proceedings. These fees should not be fees which the wife shares and should be taken into account (along with the legal fees already paid by the husband) before any percentage adjustments are carried out.
Therefore the legal fees paid by the husband of $192,912 and the legal fees paid by the wife of $181,431 are added back, together with the accounting fees paid by the husband of $38,544, and the account fees paid for the “restructure” $8,400 and $13,500.
The following table sets out the assets, liabilities and financial resources of the parties and other matters to be taken into account.

Husband - Assets

1. Property C	$2,358,000
2. Property D	$1,534.000
3. Property E	$1,685,000
4. Property W	$564,000
5. Livestock (valued) – Agreed (save as to disputed addback items)	$487,024
6. AMP Shares	$3,033
7. X Pty Ltd	$193,000
8. Loan at Call (slight difference husband’s figures)	$85,562
9. Company Z – Agreed (Livestock Assets $5,000 & Monetary Loan Account @ March 2013 $7,957)	$12,957
10. Stored Stock Type 1 Semen (Company N valuation)	$780
11. Property B	$1,058,000
12. Plant and Equipment	$827,000
13. New Plant Purchases	$65,002
14. Deferred Grain Payments	$710,846
15. Legal fees paid by husband	$192,912
16. Seed on hand (Exhibit 4 and evidence of husband) (Total from itemised list)	$44,700
17. Accounting fees paid by husband re divorce	$38,544
18. Account fees paid in relation to restructure: Harradine Harradine Partners	$8,400 $13,500
19. Husband’s superannuation	$27,186
20. Half share of Property C household contents	$6,515
Total items to be brought into account	$9,915,961

Husband – Liabilities

21. Westpac overdraft	$3,773
22. Westpac Commercial Bills	$1,800,000
23. Westpac Variable Loan	$1,496,000
24. Rural Bank Elders Loan	$300,000
25. Half share of F School fees (rounded up)	$5,713
Total liabilities:	$3,605,486
Husband total net items (including superannuation and other considered items)	$6,310,475

Wife - Assets

26. I Street household contents	$6,600
27. Bank SA Everyday	$2,058
28. Bank SA Maximiser	$20,718
29. Westpac E-Saver	$12
30. AMP Shares	$1,905
31. Motor Vehicles and Horse Floats	$95,300
32. Wife’s Superannuation	$16,581
33. Legal Fees paid by wife	$181,431
34. Half share of Property C household contents	$6,515
Total:	$331,120

Wife – Liabilities

35. Half share of F School fees (rounded up)	$5,713
Total liabilities:	$5,713

Wife total net items (including superannuation and other considered items)	$325,407
Total Husband and Wife NET ($6,310,475 plus $325,407) equals	$6,635,882

Subsection 79(2) – Is it just and equitable to make a property settlement order?

The High Court in Stanford & Stanford (Supra) at [39] confirmed that the decision does not begin with “the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4).”
The joint judgment notes at [42] the following:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
As noted by Bryant CJ and Thackray J in Bevan & Bevan (Supra) at [82], “in many cases the preliminary question is effectively answered in the affirmative by the way the parties present their cases.” That is the case in this matter. Both the husband and the wife seek orders adjusting the parties’ existing legal interests in the property of the marriage. Clearly, “the common assumptions upon which property was acquired and used during the currency of the parties’ relationship and which is represented now by the property of the parties or either of them [has] been brought to an end by” the dissolution of the marriage (per Murphy J in Marcello & Marcello [2013] FamCA 254 at [15]).
Harradine Partners was created when there was a continuing relationship between the parties. That is no longer the case. I am satisfied that it is just and equitable within the meaning of s 79(2) of the Act to alter the existing legal and equitable interest in property held by each of the parties to the marriage given the circumstances of this marriage. The exact alteration that will be made is dependent upon the consideration of matters as set out in s 79 and s 75(2) of the Act.

Subsection 79(4)(a) to (c) - Contributions

As previously indicated the husband owned Property B at the time the parties were married. The amount to be attributed to this asset at the time was the subject of dispute. I am satisfied that the husband had some equity in the property at the time, but the value of it remains unclear taking into account the evidence, including the evidence about funds borrowed from the partnership to fund the purchase.
I accept the evidence of the wife that she was told at the time of the marriage that a debt remained owing in relation to that property at the time of marriage.
By way of initial contributions the wife brought into the marriage assets of significance. The wife also made significant contributions during the marriage from her inheritances.
It was not in dispute the husband has made a significant contribution carrying out his role as farmer and manager of the properties. Similarly, the wife has made contribution assisting in the bookwork of the business and a significant contribution in her role as homemaker and parent over a lengthy period.
Property C was acquired with considerable assistance from the husband’s parents. They have received benefits pursuant to the informal arrangement.
Since the separation the husband has continued his role in managing the farm properties. As the evidence clearly indicates there have however been difficulties in his disclosure concerning transactions and the operation of the business. At times he purported to be a sole trader and at other times maintained the partnership was ongoing.
As previously indicated the Court takes into account when considering the financial contributions made by the husband, his unilateral decision not to collect rent for Property D or payment for the electricity which would otherwise have been recovered. Similarly, the Court takes into account the husband’s unilateral decision to increase substantially the rent payable which then benefited his parents.
Following upon the separation the husband has made some contribution as a father and carer for the children. The wife has continued a significant role in this regard, including maintaining the children’s sporting and extra-curricular activities.
Taking into account the significant factors and the overall evidence in relation to the financial and other contributions of the parties I am satisfied that it is appropriate to consider the contributions as 60 per cent by the husband and 40 per cent by the wife. This is a balance between the actual financial contributions and the non-financial contributions together with the difficulties created in this case by the addbacks claimed by the wife and the appropriate adjustments which arise from those issues.

Subsections 79(4) (d) to (g)

The provisions of ss 79(4)(d) provide that the Court take into consideration “the effect of any proposed order upon the earning capacity of either parties of the marriage”. If the husband is required to pay a considerable sum to the wife, then there is a strong possibility that the husband will be required to borrow funds and continue with the sale of Property B. A reduction in the real estate available for the farming enterprise is likely to have an effect upon the earning capacity of the husband.
The remaining items in ss 79(4) which are relevant are appropriately considered under the provisions of ss 75(2).

Section 75(2)

(a)The age and state of health of each of the parties;

The parties are of similar age. It is conceded that both parties are in good health, although the wife suffered from breast cancer some years ago.

(b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

Since the separation the husband has had the control of the significant income and property represented by the farming enterprise.
Both parties have the appropriate physical and mental capacity for gainful employment. The wife has not had employment outside of the family farming business which will make it more difficult for her to obtain an income from future employment.
Following upon the dissolution of the partnership the wife will no longer be entitled to receive income from the farming enterprise.
The husband will continue to have the capacity to earn income from the farming enterprises.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and

(e)the responsibilities of either party to support any other person;

The arrangements were that the children spend time with each of the parents. Both parties continue to provide support and commitment to the children. The youngest child, V, resides with the wife. The wife has her ongoing care and V is now the only child under 18 years.
Subsection (f) not relevant.

(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent;

Taking all of the above factors into account I am satisfied that a further adjustment of five per cent in the wife’s favour is appropriate, just and equitable.
When assessing the overall contributions of the parties I have already made adjustments taking into account the arrangement between the parties and the husband’s parents in relation to Property C, the failure of the husband to collect rent and reimbursement for electricity for Property D and the husband’s decision to run the farming business as a sole trader for a period after the separation.
If these factors were not taken into account under “contributions” the same appropriate adjustment would be made under s 75(2)(o).
The overall assessment is that it is just and equitable and in all of the circumstances for there to be a division of the net assets of the parties (including their superannuation expectations) of 55 per cent to the husband and 45 per cent to the wife.
Forty-five per cent of the net assets of $6,635,882 is $2,986,147 (rounded up).
If the wife retains the assets and liabilities already taken into account, receives a half-share of the Property C household contents and pays a half-share of the F School fees, she would retain $325,407. A total payment by the husband to the wife in settlement of $2,660,740 is therefore required.
Apart from the proceeds expected from the sale of Property B, there is also the deferred grain payment of $710,846 which will assist the husband in making the appropriate payment to the wife.
On 19 June 2013 I made orders which provided for the husband to pay the sum of $100,000 by way of interim property settlement from any sums he received from the deferred grain payments. If that payment has been made pursuant to those orders then there remains the sum of $2,560,740 payable to the wife. If the payment has not been made then the full amount of $2,660,740 remains payable.
Taking into account all of the evidence I consider the orders that commence at page two of this judgment to be just and equitable.

Spousal maintenance

The wife sought orders pursuant to s 72 and s 74 of the Act which would provide for the husband to pay her lump sum spousal maintenance in the sum of $275,000.
The Court has the capacity and the jurisdiction to make such an order should all of the necessary criteria be met.
The application for lump sum spousal maintenance needs to be seen in the context of the terms of the s 79 property settlement order proposed to be made (s 75(2)(n)). The wife will receive a substantial sum of money, which can be used to purchase a home and to provide a reasonable income.
The evidence is limited as to whether after the full payment, such an income would be sufficient in itself to fully maintain a reasonable standard of living for the wife. However, the balancing factor which needs to be taken into account is the significant requirement that the Court must be satisfied of the extent to which the husband is reasonably able to maintain the wife in these circumstances.
Taking into account the matters in s 75(2) the Court has not been satisfied to the necessary standard of proof that following upon the property settlement orders the wife will not be able to support herself adequately. The Court is also not satisfied that sufficient evidence has been produced to satisfy the Court that the husband will be reasonably able to contribute further to the maintenance of the wife after the terms of the property settlement have been carried out.

Adult child maintenance

The Court must consider the provisions of s 66L and the provisions of s 66J. The evidence of the wife and the adult child Ms K Harradine established that the adult child was not only undertaking a course of education, she was also participating in sporting activities. I accept the evidence of the adult daughter Ms K Harradine that if she were not participating in these sporting activities, she would be able to earn a greater income from her employment.
I am therefore not satisfied that the wife has provided evidence upon which the Court can find, to the necessary standard of proof, that the provision of maintenance is necessary to enable Ms K Harradine to complete her education.
The applications in relation to lump sum spousal maintenance and adult child maintenance are therefore dismissed.

I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 28 March 2014

Associate:

Date: 28 March 2014

[2014] FamCA 188

28 March 2014

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