Harvey & Harvey - [2022] FedCFamC2F 1304

Federal Circuit and Family Court of Australia
(DIVISION 2)
Harvey & Harvey [2022] FedCFamC2F 1304

File number(s): SYC 2431 of 2015

Judgment of: JUDGE MORLEY

Date of judgment: 6 October 2022

Catchwords: FAMILY LAW – property – application for final orders pursuant to section 79 – parties to a long marriage – assessment of contributions – where the Court finds the Husband owns 95% of the net matrimonial asset pool and the Wife owns 5% – where the Court finds it is just and equitable to alter the parties’ interests in the net matrimonial asset pool equally – where the Court finds the only order to be made is a superannuation splitting order in favour of the Wife with a base amount of $266,199 – where procedural fairness to the trustee of the Husband’s superannuation fund must first be afforded before final orders can be made – where parties must provide written submissions regarding the proposed splitting order

Legislation:
Evidence Act 1995 (Cth) – s 13

Family Law Act 1975 (Cth) – ss 13E, 75, 78, 79, 90XT, 90XZD

Cases cited:
AJO v GRO (2005) 191 FLR 317

Bevan & Bevan (2013) 279 FLR 1

Dickons & Dickons [2012] FamCAFC 15

Fields & Smith [2015] FamCAFC 57

Fontana [2018] FamCAFC 63

Grier & Malphas (2017) 55 Fam LR 107

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395

In the marriage of Harris (1991) 104 FLR 458

Jabour & Jabour [2019] FamCAFC 78

Keskin & Keskin [2019] FamCAFC 236

Masoud & Masoud [2016] FamCAFC 24

Naisby & Naisby [2021]FamCAFC 92.

Sadasivam & Seshan [2019] FamCAFC 76

Shan & Prasad [2018] FamCAFC 12

Stanford & Stanford (2012) 247 CLR 108

Talbot & Talbot [2015] FamCAFC 132

Trevi & Trevi [2018] FamCAFC 173

Vass & Vass [2015] FamCAFC 51

Division: Division 2 Family Law

Number of paragraphs: 194

Date of last submission/s: 21 May 2021

Date of hearing: 8-9 March 2021

Place: Sydney

Applicant: Litigant in Person

Respondent: Litigant in Person
ORDERS

SYC 2431 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HARVEY

Applicant

AND:
MR HARVEY

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

6 October 2022

THE COURT ORDERS THAT:
1.Order 6 made on 2 July 2015 is discharged as and from the date of last payment pursuant to that order.
2.Pending further order, the Husband is restrained from dealing in any manner with his superannuation entitlements, including but not limited to, the Harvey Self-Managed Superannuation Fund (‘Harvey SMSF’) of which Harvey SMSF Pty Ltd is trustee.
3.The Husband and Wife are to file and serve any written submissions in chief in relation to the Court making a superannuation splitting order in favour of the Wife from the Husband’s Harvey SMSF in the sum of $266,199 by no later than 4:00PM on 20 October 2022.
4.The Husband and the Wife are to file and serve any written submissions in reply should they choose to do so by no later than 4:00PM on 3 November 2022.
5.By no later than 4:00PM on 11 October 2022 both parties are to comply with the provisions set out in Part VIIIB of the Family Law Act 1975 (Cth) (‘the Act’) and the Family Law (Superannuation) Regulations 2001, in particular by way of procedural fairness on the superannuation trustee of the Harvey SMSF by providing to the superannuation trustee of the Harvey SMSF, Harvey SMSF Pty Ltd, the Court’s Reasons for Judgment dated 6 October 2022 in relation to the proposed superannuation splitting order with a base amount of $266,199 in favour of the Wife.
6.That the proceedings are listed for further mention and directions via Microsoft Teams at 9:30AM on 9 November 2022.

THE COURT NOTES THAT:
A.Pending procedural fairness being afforded to the trustee of the Harvey SMSF, the Court has found it is just and equitable to make an order pursuant to section 79 of the Act to make a superannuation splitting order with a base amount of $266,199 in favour of the Wife.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Harvey & Harvey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction.

These Reasons for Judgment relate to final property settlement proceedings between the applicant wife, Ms Harvey (‘the Wife’) and the respondent husband, Mr Harvey (‘the Husband’).
The final hearing took place on 8 and 9 March 2021. Both parties appeared on their own behalf.
The Wife’s application was for an order pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’) that the Husband pay to her $750,000 by way of alteration of the interests of the parties in their property.
The Husband sought that the Wife’s application be dismissed on the basis that the Court should not find that it would be just and equitable to proceed with a consideration of the making of an order under section 79 altering those interests.
At the commencement of the hearing, the parties presented a Balance Sheet that reflected a wide divergence in views in relation to values and in relation to what property should constitute the matrimonial property pool for consideration by the Court. During the course of the hearing, most of those issues as to valuation and inclusion were resolved.
The parties met in 1988 in United Kingdom, married in 1990, had four children between 1996 and 2002, and separated in mid May 2014. At separation, the children remained in the full time care of the Wife.
The proceedings.
The proceedings were commenced by the Wife filing an Initiating Application seeking parenting and property settlement orders on 20 April 2015, to which the Husband responded on 1 July 2015.
The matter was first before the Court on 2 July 2015 before Judge Henderson (as her Honour then was) and after a short interim hearing her Honour delivered a judgment and made orders including an order that the Husband pay to the Wife $2,000 per week by way of interim spousal maintenance, and an order that the Wife sell a Motor Vehicle 1 and retain the sale proceeds “by way of interim property distribution.”
The interim spousal maintenance order made 2 July 2015 has never been vacated, and I will deal with that issue later in these Reasons.
On 11 December 2015, final parenting orders were made between the parties by consent, including that the children would live with the Wife and that their place of residence would be relocated to Country AQ.
The Husband appealed the spousal maintenance order made on 2 July 2015, but by consent the appeal was withdrawn, with no order as to costs, on 12 December 2015. The events surrounding that consent are not in evidence, but can easily be inferred from the evidence and will be mentioned later in these Reasons when dealing with the still-in-force interim spousal maintenance order.
On 27 September 2018 an order was made by Judge Harper (as his Honour then was) pursuant to section 13E of the Act referring the property settlement proceedings to arbitration. That order, also, has never been vacated, but the parties did not attend an arbitration of the proceedings, and it proceeded to the final hearing on 8 and 9 March 2021.
The matter was first set down for hearing for 6 and 7 April 2020, but those dates were vacated due to the then-recently begun SARS-CoV-2/COVID-19 pandemic. The matter was eventually set down for the final hearing on 8 and 9 March 2021.
Final hearing proceeded by Microsoft Teams link. At the conclusion of the evidence, directions were made for the filing of written submissions by the parties. Those directions were complied with and on 24 May 2021 judgment was reserved.
I apologise to the parties for the inordinate delay between judgment being reserved and delivery of these Reasons and final orders.
The material relied upon at hearing.
The Wife relied upon the following materials:
(1)Her Case Outline document filed 7 March 2021;
(2)Her Amended Initiating Application filed 25 July 2020;
(3)Her affidavit affirmed and filed 8 December 2020;
(4)Her Financial Statement sworn or affirmed and filed 9 February 2018;
(5)Her written submissions dated 3 April 2021 and filed 10 April 2021; and
(6)Her written submissions in reply dated 15 May 2021 and filed 20 May 2021.
The Wife also relied upon the following exhibits:
(1)Exhibit A1 – Financial Statement of the Husband affirmed 24 June 2015 and filed 1 July 2015 and being paragraph 31 thereof;
(2)Exhibit A2 – statement number 3 (15 pages) for a Commonwealth Bank Complete Access account in the Wife’s sole name with account number ending #...55 for the period from 31 December 2015 to 30 June 2016;
(3)Exhibit A3 – statements numbers 1 and 3 for a Bank B Cash Management Account in the name of AS Pty Ltd as trustee for The Harvey Trust, being account number ending #...54 for the period is 27 January 2015 to 30 June 2015 (statement 1) and 30 September 2015 to 31 October 2015 (statement 3); and
(4)Exhibit A4 – SMSF Tax Return for the year ended 30 June 2019 for the Harvey Superannuation Fund and Financial Statement and reports for that financial year for that fund.
The Husband relied upon the following materials:
(1)His Case Outline document filed 8 March 2021;
(2)His Response filed 16 April 2017;
(3)His affidavit sworn and filed 9 December 2020;
(4)His Financial Statement sworn or affirmed and filed 9 December 2021;
(5)The Financial Statement of Ms C (the Husband’s wife) sworn or affirmed and filed 9 December 2020; and
(6)His written submissions dated and filed 3 May 2021.
In addition to annexures -1 to -14 attached to the Husband’s affidavit, he also relied on -Exhibit 1 to -Exhibit 26 delivered to the Court on 12 February 2021.
On the last page of his Case Outline document, the Husband set out four “offers made to date to settle the matter by the respondent to the applicant”. Pursuant to section 131 of the Evidence Act 1995 (Cth), I have not considered that material at all.
The Husband also relied upon the following exhibits:
(1)Exhibit R1 – all of the documents produced on subpoena by the Authority AM of Country AQ;
(2)Exhibit R2 –nine letters from Ms D, then solicitor for the Husband, to the Wife, the first being 11 October 2017 in the last being 8 January 2019;
(3)Exhibit R3 – a Minute of Consent Orders signed by the Husband on 18 December 2015, not signed by the Wife or either party’s then solicitors, tendered in Court by the Husband from his possession, not from the Court file;
(4)Exhibit R4 – Annual Accounts of E Pty Ltd for the year ended 30 June 2019;
(5)Exhibit R5 – Company Trading History Report for E Pty Ltd supplied by Company F, extracted from ASIC records on 15 June 2016, report dated 20 July 2016;
(6)Exhibit R6 – Notice of Decision made under Part 6A of the Child Support (Assessment) Act 1989 (Cth) dated 13 January 2016, with letter forwarding the document to the Husband of that date, and copy of a letter from Child Support to the Husband dated 6 April 2016;
(7)Exhibit R7 – statement for NAB Gold Banking – Choice account in the name of Ms C (now Ms C) being account number ending #...30 for the period 11 April to 11 June 2015 and 12 June to 11 August 2015;
(8)Exhibit R8 – statement for an ANZ Platinum credit card account in the Husband’s sole name with account number ending #...72 for the period 8 January to 7 February 2021; and
(9)Exhibit R9 – statement for a Virgin Money Credit Card account – Velocity High Flyer Card in the Husband’s sole name for account number ending #...43 for the period 6 January to 7 February 2021.
The parties jointly provided to the Court a Balance Sheet filed on 1 March 2021 pursuant to trial directions. That document was the subject of discussion between bench and bar table during the hearing so as to clarify issues reflected thereon in relation to whether or not certain asserted assets, liabilities and financial resources should be considered by the Court and as to disputes between the parties as to values.
I have carefully considered all of the materials relied upon by each of the parties.
The Wife was cross examined by the Husband and the Husband was cross examined by the Wife. I have carefully considered the oral evidence of the parties.
The competing proposals
The final orders sought by the Wife are contained in her Amended Initiating Application filed 25 July 2020. The orders sought are:
(1)Husband to pay the Wife the sum of $750,000.
(2)Husband pay the Wife’s costs in these proceedings.
The Wife indicated in her Case Outline document that “the sum of $750,000 [is] made up of a portion of the remaining matrimonial assets and spousal maintenance.” At paragraph 2 of the Wife’s trial affidavit she says:
I refer to my amended application seeking property settlement and spousal maintenance.
The Amended Initiating Application does not seek an order for spousal maintenance.
At the beginning of the hearing, I clarified with the Wife that she had not sought an order for spousal maintenance. The Wife responded that the spousal maintenance element was contained in the sum of $750,000 sought by her by way of alteration of property interests between the parties. I explained to the Wife that different sections of the Act and different considerations applied to, on the one hand, alteration of property interests under section 79, and on the other hand, spousal maintenance under sections 72 to 75 of the Act. I explained to the Wife that I would only consider the matter on the basis of the application for alteration of the parties’ interests in property pursuant to section 79, as there was no application before the Court for a final spousal maintenance order.
In paragraph 81 of her trial affidavit the Wife says:
I seek spousal maintenance that reflects my contribution to the marriage, the fact that I was out of work for 15 years, retraining, my age and my 100% care of the children.
The quoted paragraph is not strictly evidence, but more in the nature of a submission, and in that regard is a submission going to contributions. It was made clear from the inception of the hearing that the matter was proceeding as a property settlement hearing under section 79 of the Act. The matter proceeded on that basis.
Despite the final orders set out in the Husband’s Response filed 16 April 2017, being clearly orders directed to an alteration of the interests of the parties in their property, the Husband made perfectly clear at the commencement of the hearing that the only order he sought was dismissal of the Wife’s application, in effect, that the Court find that it was not just and equitable to make any order altering the interests of the parties in their property. The Husband stated the order that he sought at the commencement of his Case Outline document:
(1)That each party retains all assets in their possession at this moment.
The Husband did not set out any alternate orders he sought in the event that the Court determines that it is just and equitable to make an order under section 79 altering the interests of the parties in their property.
The evidence
The parties met whilst both studying health care at the G University and commenced cohabitation in 1988. The Husband graduated in 1989 and did an internship in the United Kingdom while the Wife finished the final year of her health care degree. The Wife also had a Bachelor degree from the H University.
The parties married in 1990 in the United Kingdom.
In 1991 the parties moved to Country AQ where the Husband took up a post as a medical professional and the Wife completed her studies in 1991 and 1992. Thereafter the Wife worked as a trainee health care worker and the Husband trained in health care.
The parties’ son, Mr J, was born in 1996 and their second son, Mr K, was born in 1998. The parties agree that between 1990 and 1998, when the parties and their sons Mr J and Mr K moved from City L, Country AQ to City M, Country AQ, the Husband and Wife both worked and contributed roughly similar salaries to the family income. Upon the move to City M in 1998 the Wife ceased paid employment and ceased the practice of health care. The Husband continued in paid employment throughout the whole of the parties’ cohabitation and continued thereafter up to the time of the hearing.
The parties had purchased a house in City L in 1995 that was sold at a loss in 1999 and the parties received a gift from the Wife’s family of Country AQ $53,000 to assist them at that time. During his cross examination the Wife put to the Husband that her family had given them $53,000 when they were selling the City L house, to which he responded “I do not recall”, but when the Wife’s next question was “it was initially a loan from my brother-in-law Mr N and he later wrote it off”, the Husband responded, “I recall he didn’t require repayment”, which I take to be a tacit acceptance that monies were gifted by the Wife’s family.
In 1999 the family moved to Perth and their daughter O was born in 2000 and their fourth and last child P was born in 2002. The family lived in Perth until 2004 except for six months spent living in City Q in the first half of 2001, during which they purchased and then sold a property, again at a loss.
Between 2004 and 2006 the family relocated to the United Kingdom where the Husband worked in a hospital to complete his post-fellowship training and to continue work as a medical professional.
In about 2005 the Husband received an inheritance from his late mother’s estate of £135,000.00, which was paid into the parties’ joint account with Bank R and, on the parties’ return to live in Australia in 2006, the remaining balance of $90,000 was used to open a joint account in the names of the parties with the Commonwealth Bank on 6 November 2006.
The whole of the Husband’s inheritance from his late mother was expended for family purposes prior to the parties’ separation.
In 2006 the family returned to live in Australia and took up residence in Sydney and the Husband obtained a position at S Hospital, the family living in rental accommodation in Suburb T for six months and then in rental accommodation at Suburb U.
In 2009 the parties purchased real property at V Street, Suburb U (‘the V Street, Suburb U property’) for $1,140,000. The property was purchased in the Wife’s sole name as registered proprietor as a deliberate asset protection strategy in relation to the Husband’s practice. The Wife’s mother provided a gift to the Wife of $175,000, of which $120,000 was applied by the parties to the deposit on purchase and the remainder was expended on stamp duty, moving and other expenses, with the balance of purchase price and costs being funded by a home loan secured by way of mortgage on title to the V Street, Suburb U property.
The Husband often worked multiple jobs – up to four jobs at a time – as a medical professional, undertaking training in various health care disciplines. The Husband sets out quite fully his work history during the relationship in paragraph 26 of his trial affidavit. Despite the at times high income earned by the Husband during the cohabitation, he put to the Wife in cross examination, “you agree that our lifestyle was frugal despite my large income?” The Wife replied, “yes, that is true.”

From 1998 the Wife was principal carer for the children and was principally responsible for the homemaker role for the family. Whilst the Husband concedes those contributions by the Wife he asserts that he contributed when he was available to do so by assisting with the homemaker role and by assisting with parenting the children, including by attending their sporting fixtures. It is inherent in his evidence as to his employment history and hours worked that he was simply not available to assist with parenting the children and with the homemaker role on a day-to-day basis, even working away from home in Canberra four days per fortnight between 2009 and 2012.
There is no doubt on the evidence that the Wife was principally responsible for parenting the children and for this the homemaker role during the parties cohabitation and that the Husband was the sole financial support for the family from 1998 until the parties separated in mid May 2014, with the parties contributing equally to the financial support of the family from 1990 to 1998. At the very beginning of the Husband’s cross examination of the Wife an exchange in words to the following effect occurred:
HUSBAND:You agree that prior to separation I contributed 100% of the income and you contributed largely childcare?
WIFE:I contributed 100% of the childcare and you contributed 100% of the income.
HUSBAND:You agree that our contributions were 50/50 during that period?
WIFE:Yes.
Following the parties’ separation in mid May 2014 the Wife and the children remained living at the V Street, Suburb U property and the Husband vacated that property and took up residence in Queensland to work at the W Hospital Brisbane. In 2016 the Husband married Ms C.
The Wife commenced these proceedings on 20 April 2015 and on 2 July 2015 an interim order was made that the Husband pay to the Wife $2000 per week by way of interim spousal maintenance. Though the Husband says in paragraph 60 of his affidavit “on 2 July 2015 orders are made for me to pay Ms Harvey the sum of $2000 per week by way of spousal maintenance until the property in V Street, Suburb U was sold”, there was no part of that or any other order made that day linking such payments to an obligation on the Wife to apply any of the spousal maintenance payments to a payment of the home loan secured on the V Street, Suburb U property, nor linking the continuance of that order to retention or sale of the V Street, Suburb U property. The Husband appealed that order, but by consent between the parties the appeal was withdrawn on 12 December 2015 with no order as to costs.
On 11 December 2015 final parenting orders had been made by consent between the parties providing for the parties to have equal shared parental responsibility for Mr K, O and P, the children to live with their mother and the mother was permitted to relocate the children’s residence to Country AQ. Orders were made in relation to the father spending time with the children during Country AQ school holidays and for a weekend every two months during school term. An order was made addressing Mr K spending time with his father in accordance with his wishes, but at the applicable time Mr K would have been over 18 years of age and so outside the jurisdiction of the Court to make any such order.
I raised with the parties during the hearing that I have carefully examined the whole of the Court file including the electronic data record of the file and I could find no order vacating or altering the order made on 2 July 2015 for the Husband to pay the Wife $2000 per week spousal maintenance. I made that comment to the parties before the morning tea adjournment on the second day of the hearing.
On resumption of the hearing after morning tea, the Husband tended from his possession the document that is Exhibit R3, a Minute of Consent Orders signed only by the Husband and hand dated 18 December 2015 as below:
(1)Paragraph 1 provided for the parties to sell the V Street, Suburb U property and after payment out of adjustment of rates, agents commission, legal another proper costs of sale, a sum sufficient to discharge the mortgage secured over the property, payment out of the Commonwealth Bank credit card in the joint names of the parties and payment of all outstanding fees owed to X School, with the Wife to receive the balance;
(2)Paragraph 2 provided that the balance of the proceeds of sale so be received by the Wife “by way of partial property settlement and the whole amount received by the Wife shall be included in the asset pool, as an asset received by the Wife, for the purposes of the final hearing/settlement regardless of whether such monies have been expended or converted into another form at the time of final determination of the matter”;
(3)Paragraph 3 provided “that the Husband’s super fund entitlements in the agreed amount of $490,000 shall be included in the asset pool, as an asset by the Husband, for purpose of the final hearing/settlement regardless of whether such monies have been expended or converted into another form at time of final determination of the matter”; and
(4)Paragraph 4 provided “on settlement of the sale of the property at V Street, Suburb U clause 6 of the orders made by Judge Henderson in the Federal Circuit Court of Australia in Sydney, relating to the payment of spousal maintenance by the Husband to the Wife, is discharged.”
No orders were ever made in terms of that document.
When the document was tendered to the Court by the Husband and admitted into evidence as Exhibit R3, I asked each of the parties if they agreed that they had acted on the basis of the agreement reflected in that document. The Wife confirmed that she had so acted and the Husband confirmed that he had so acted. That such is the case was certainly borne out by the Wife receiving the whole of the proceeds of sale of the V Street, Suburb U property, as I will shortly relate, though no order was ever made by the Court in that regard.
It is for the foregoing reason that I will make an order that the interim order for the Husband pay to the Wife the sum of $2000 per week by way of spousal maintenance made 2 July 2015 is discharged as at the date of the last payment. The making of final orders between the parties would extinguish that interim spousal maintenance order,[1] but that extinguishment would not discharge the arrears under the order of 2 July 2015. That is why it is necessary to make a specific order discharging the interim order as at the date to which it ended.
[1] Sadasivam & Seshan [2019] FamCAFC 76; Keskin & Keskin [2019] FamCAFC 236.
Following the parties’ separation the Wife and children lived at the V Street, Suburb U property until its sale was completed in January 2016 and the Wife, O and P then relocated to Country AQ and have remained living there up to the final hearing.
In November 2015 the Husband and Ms C moved from Queensland to Town Y in Victoria to live, whilst the Husband worked as a medical professional at Town Y Regional Hospital and began training in health care. The Husband left Town Y Hospital in July 2016 and in conjunction with Ms C (they had married in 2016) opened the Z Clinic in late 2016, then in late 2018 they closed that business and relocated to Brisbane. They both worked in various health care positions until February 2020 when E Pty Ltd commenced trading as the AB Clinic.
Between separation in mid May 2014 and relocation by the Wife with O and P to Country AQ in January 2016 (is unclear when Mr J and Mr K moved to Country AQ, but at the time of hearing all four children were residing Country AQ) the Husband on occasions spent some time with the children in Sydney by travelling down from Brisbane and later up from Town Y in Victoria, though it is beyond doubt on the evidence that following separation the Wife was the principal, and virtually sole carer as between herself and Husband for the children Mr K (16 years of age at separation), O (13 years of age at separation) and P (12 years of age at separation).
During his cross examination the Wife put to the Husband that following separation she had 100% care of the children, to which he responded that he would return to Sydney to see the children and asserted that he had 5% care of the children from separation until January 2016.
In cross examination the Husband accepted that since the Wife moved to Country AQ in January 2016 she had sole care of O who was 15 at the time of the move and P who was 14.
From separation until December 2014 most of the Husband’s earnings from his various positions with hospitals in Brisbane and Sydney was paid into the parties’ joint Commonwealth Bank account ending #...46, to which both parties had access.
From December 2014 until March 2015 the Husband regularly transferred funds totalling $88,325 to that Commonwealth Bank account #...46, of which $5,975 “was paid to direct debits from which I benefited, leaving the sum of $82,350 solely for Ms Harvey’s use.” It is not clear on all of the evidence that none of that sum of $82,350 was used by the Husband for his living expenses or otherwise.
In January 2015 the Husband set up a corporation, E Pty Ltd, of which he was sole director and sole shareholder until 27 January 2019 when Ms C was added as a coequal shareholder and director. The Husband also set up the Harvey Family Trust, of which AS Pty Ltd is trustee, the Husband and Ms C being the shareholders and directors, and both being the primary beneficiaries of the trust.
In January 2015 the Husband also set up the Harvey Superannuation Fund as a self-managed superannuation fund, of which Harvey SMSF Pty Ltd is trustee, the Husband and Ms C being the members. Also involved with that self-managed superannuation fund is AC Pty Ltd, of which the Husband and Ms C are shareholders and directors, and which is trustee of an AD Trust, the sole purpose of which is to hold assets on behalf of the self-managed super fund.
At inception, the Husband was the only member of the Harvey Superannuation Fund with a member account value at 30 June 2015 of $495,595.38. Ms C was added as a member on 23 June 2016 when she rolled into the fund her own superannuation entitlements.
The purpose of E Pty Ltd was and is for the Husband to have a corporate vehicle to market his services on contract and, more recently, to trade as AB Clinic.
In about April 2015 the Wife registered with the Child Support Agency for an assessment and payment of child support by the Husband for the benefit of the children Mr K, O and P. It seems from the evidence that the initial assessment was for a payment of about $4,220 per month or $974 per week, with a re-assessment after a departure application seeking to take into account the Husband’s payment of school fees to $2,933.53 per month. Exhibit A1 is paragraph 31 of the Husband’s Financial Statement affirmed 24 June 2015 in these proceedings asserting a weekly payment by the Husband for child support for Mr K, O and P of $967.
The Husband ceased paying towards the children’s school fees in about August 2015.
The V Street, Suburb U property was sold by agreement between the parties, reflected in the document that is Exhibit R3, with settlement taking place on 22 January 2016. The sale price was $1,600,000 and after the deductions necessary on sale including payment out of the loan accounts secured on the property, a net sum of $312,195.49 was paid to the Wife, as agreed. From that sum the Wife then paid out the parties’ joint Commonwealth Bank credit card in a sum of $25,092.32, and outstanding school fees to X School in a sum of $10,562.95, as part of the agreement between the parties. This left the Wife with the net amount to her of $277,298.
Pursuant to the orders made on 2 July 2015 the Wife sold the Motor Vehicle 1 for either $13,324 (the Wife’s evidence in paragraph 41 of her affidavit) or $12,301 (the Husband’s evidence in paragraph 66.2 of his affidavit). On the Wife’s evidence she paid the whole of the sum so received from the sale towards renovation work necessary to get the V Street, Suburb U property ready for sale, spending a total of $15,230 for that purpose. During the Husband’s cross examination he accepted that the Wife organised and carry out the work necessary to get the house ready for sale and when asked if he accepted that the Wife had spent money on the house to get ready for sale he replied it words to the effect of, “I think you spent $15,000 as you chose to, not that you needed to.” He was asked, “you accept I used the proceeds of sale of the Motor Vehicle 1 for the $15,000 to get that house at V Street, Suburb U ready for sale?” He replied, “I accept that you spend $15,000, but I’m not aware as to where it came from.”
The Husband accepted during his cross examination that after paying off the Commonwealth Bank joint credit card and the outstanding X School fees the Wife was left with a net amount of $277,298 from the sale of the V Street, Suburb U property. According to the Wife, the move to Country AQ in January 2016 “cost around $55,000. This included removal expenses, purchase of cars, new school uniforms, books.”
The Husband asserts in paragraph 65 of his affidavit that prior to the sale of the V Street, Suburb U property the Wife redrew $5,750 from the home loan accounts secured on that property. He refers to -Exhibit 1 to his affidavit being statements for the relevant account and he has highlighted seven withdrawals that total $5,750. The Wife’s trial affidavit was affirmed by her and filed on 8 December 2020. The Husband’s trial affidavit was sworn by him and filed on 9 December 2020, the Wife therefore not having the Husband’s evidence asserting that the redraws were by the Wife at the time she prepared her evidence in chief. The Wife was not cross examined about those redraws. The Wife was not cross examined about how any such redraws were spent, if made by her.
The evidence indicates that the Wife ceased drawing money from the parties’ joint CBA account ending #...46 in March 2015. The Husband had his salary paid into that account until 12 December 2014, and he gave evidence that from then until March 2015 he regularly transferred funds from his own ANZ Bank account number ending #...72 into the joint CBA account #...46.
The Husband asserts in paragraph 66 of his affidavit that the combined value of his six superannuation funds at the time of separation was $454,167.62, all of those funds being rolled into the Harvey Superannuation Fund. The actual amount rolled into that SMSF by May 2015 when all six of the Husband’s superannuation funds had been rolled in was $522,132.11. The Husband asserts that the difference is found in the value of the Super Fund AE that was rolled in with a value of $78,465.09, but in relation to which the Husband asserts that the fund had a value of $10,501.30 at the time of separation in May 2014 and that the additional $67,963.79 represented his contributions between separation in May 2014 and rollover of the Super Fund AE fund in May 2015, though he does not provide any documentation to show that the whole of that increase value of $67,963.79 is purely contributions and does not include any earnings on the separation value of $10,501.30.
The Husband asserts that at the time of separation the parties had the liabilities set out in paragraph 68 of his trial affidavit:

Item

Description

Sum

1

Lease on Motor Vehicle 2

$14,735.20

2

Lease on Motor Vehicle 1

$2655.69

3

Lease on Motor Vehicle 3

$8555.42

4

Company AE loan

$79,519.21

5

Virgin credit card

$20,034.54

6

CBA MasterCard #...23

$17,959.37

7

Tax to be paid on rollover of super

$29,856.75

TOTAL

$173,316.18

There are some problems with the Husband’s evidence in that regard. In paragraph 68 at 68.7 he uses the description “less tax to be paid on rollover of super $29,856.75”, but that amount is not a deduction but forms part of his total of $173,316.18. He refers to the Exhibit to his affidavit -Exhibit 2 pages 112 to 171 as being documentation in support of his evidence. One of those documents is the complete Financial Reports & Income Tax Returns for the Year Ended 30 June 2015 for the Harvey Superannuation Fund. Examination of the document shows that the correct figure for the tax paid by that SMSF in the financial year ended 30 June 2015 was $20,856.75, not $29,856.75 as the Husband says.
The Husband states that the Wife paid the CBA MasterCard #...23 from the proceeds of sale of the V Street, Suburb U property, the debt having grown from $17,959.37 to $25,092.32 by the time of payment. The Husband says that he paid the balance of the debts to a total of $155,356.81. However, the total of the debts without the CBA MasterCard and the tax on the superannuation is $125,500.06.
The Motor Vehicle 1 was sold by the Wife pursuant to the order made on 2 July 2015 and it is in the evidence that of the lease had been paid out prior to the sale. The Motor Vehicle 1 was a motor vehicle in the possession of and use of the Husband. Other than those points to take into consideration, there is no doubt on the evidence that any repayment of the debts other than the tax and the CBA MasterCard were paid by the Husband following separation.
The Husband asserts in paragraph 70 of his trial affidavit that the “sole remaining asset available for division is my superannuation held in the Harvey Superannuation Fund with a value of $425,655.87 at separation.” This assertion in Husband’s evidence conveys the distinct impression that he considered that the relevant matrimonial property pool was confined to the parties’ assets and liabilities and superannuation entitlements as at the time of separation. However, if that was his belief when he swore his affidavit, it had altered by the end of the hearing when the Balance Sheet was settled in relation to some items and values in issue between the parties by agreement between them in discussion with the bench, the Balance Sheet including assets acquired post-separation.
In December 2016 the Harvey Superannuation Fund purchased a property at AF Street, Town Y, Victoria, for $344,000. Renovation work at a cost of about $125,000 was carried out, funded through E Pty Ltd, and then the property was sold in January 2019 for $410,000 with a net being received by the Harvey Superannuation Fund of $388,153.55 (erroneously stated as $388,553.55 in paragraph 83 of the Husband’s trial affidavit, the correct amount being found in Exhibit -Exhibit 23 to his affidavit).
In paragraph 86 of his trial affidavit the Husband sets out his evidence of having provided cash in the sum of $344,480.45 and expenses paid to a value of $118,454.95 for the benefit of the Wife and the children, composed of cash provided, payments on the home loan account secured by way of mortgage on the V Street, Suburb U property, school fees, loan repayments, lease payments on the Motor Vehicle 2, lease payments on the Motor Vehicle 1 and payment of “children’s phone bills, miscellaneous school expenses, University expenses for Mr J”. He asserts that such monies were provided between 30 April 2014 (the parties separated in mid May 2014) and 15 December 2015.
During her cross examination the Wife agreed that the Husband paid sums of $5,604.46 and $9,130.74, being a total of $14,735.20 on the lease on the Motor Vehicle 2.
During her cross examination the figures in paragraph 86 of the Husband’s affidavit were put to the Wife and she accepted the accuracy of some:
(a)$181,552.65 cash available to her;
(b)$14,735.20 of the claimed $38,202.69 lease payments on the Motor Vehicle 2;
(c)$2655.69 lease payout of the Motor Vehicle 1; and
(d)$22,679.66 school fees paid directly by the Husband – and disputed the balance.
In cross examination the Wife asserted that from 1 April 2015 the Husband paid no money towards the home loan account secured by mortgage on the V Street, Suburb U property directly, but conceded that she had made the required payments from the monies she withdrew from the joint account. She agreed that the Husband had made those payments from May 2014 to 1 April 2015.

I infer from the Wife’s evidence in paragraph 35 of her affidavit that in mid-April 2015 the Motor Vehicle 2 was repossessed due to non-payment of lease payments.
The Husband includes amounts in his calculation of the $344,480.45 that would not seem to be for the exclusive benefit of the Wife and/or the children, or at all, such as $7,332.74 for “AG Life Insurance for which Ms Harvey was the sole beneficiary” and $6,615.30 “for business expenses, medical indemnity insurance”. Similarly, it is not at all clear that the $20,153.04 paid for “Personal Loans from CBA and Company AE” were debts for which the Wife was solely liable, nor is there any evidence as to what such loan monies had been expended on. The Wife asserts in paragraph 28 of her trial affidavit that some monies borrowed around the time of separation were expended by the Husband on a trip to Country AH with a lady friend and on paying off that lady friend’s credit card.
The Husband’s evidence in paragraphs 87 and 88 of his affidavit is that he paid a total of $380,035.02 into a CBA joint account in the period from 30 April 2014 until 15 December 2015, of which he used only $35,554.57, “for my food, the motorbike loan, cash out, rent and miscellaneous living expenses for me alone”, asserting that, “this left, for the benefit of Ms Harvey and the children, a total of $344,480.45”. However, the Husband conceded during his cross examination that he and Ms C had a holiday in the Country AJ and the United Kingdom in either July or August 2015 for three weeks. It is hard to see how the Husband lived for a period of one year and seven and a half months on $35,554.57 including the holiday, though it may be that the Husband had income available to him other than that referred to in paragraph 87 of his affidavit, but it is not clear on the evidence. There is evidence in Exhibit A3 of funds being paid out from the Bank B account of the Harvey Trust between January and October 2015 to Ms C in the sum of $80,000.
As the Husband points out in paragraph 91 of his affidavit, from April 2015 the Wife was receiving child support payments from the Husband pursuant to assessment under the legislation.
In paragraphs 90 to 93 of his affidavit the Husband misunderstands the order made for interim spousal maintenance on 2 July 2015 in that he asserts that such spousal maintenance was to be applied by the Wife toward payment of the home loan account secured by mortgage on the V Street, Suburb U property, but no such requirement was attached in any way to that order.
At some time the Husband and Ms C purchased a residential unit at AK Street, Suburb AL Queensland, title being placed in the sole name of Ms C. The property is subject to a mortgage securing repayment of a loan account obtained to fund purchase, the loan account and mortgage security being in the joint names of the Husband and Ms C. Near the end of the hearing the parties agreed in Court that the value of the property for the purpose of the proceedings is $670,000 and that the amount outstanding on the loan accounts secured on the property is $548,983, that the Husband is the beneficial owner of one half of the property and jointly indebted on the loan account, his interest therefore being valued at $335,000 and his liability on the home loan at $274,491, giving him in equity in that property of $60,509.
The Husband gives considerable evidence in his affidavit from paragraph 114 to paragraph 134 about the course of disclosure between the parties, addressing an assertion by the Wife that he failed to make full and frank financial disclosure. I have considered the evidence of the Husband, the evidence of the Wife and the written submissions of each and I find that there is no relevant consideration to be taken into account in relation to a failure of full and frank financial disclosure by either party.
In paragraph 135 of his affidavit the Husband asserts that the Wife may have an international bank account from which transfers were made into the Wife’s Westpac account ending #...01 and he refers to Exhibit -Exhibit 26 to his affidavit as grounding that assertion. That Exhibit does not ground that assertion. The Wife was not cross examined on the assertion.
In preparation for her move to Country AQ in 2016 the Wife contacted the Authority AM to see if she could obtain registration as a medical professional. Having been, at that time, absent from the practice of health care for 15 years, her application was not successful. In 2018 she formally applied for registration and was rejected. The Wife again contacted the Authority AM in 2020 to seek a registration for administrative purposes and was again rejected. Exhibit R1 is the documents produced on subpoena by the Authority AM and I find that those documents support the Wife’s evidence.
During his cross examination the Wife put to the Husband, “do you accept that after 15 years out of health care it would be difficult for me to return?” The Husband answered, I consider quite disingenuously, “No.” When the Wife asked the Husband, “do you accept that I needed to retrain [after moving to Country AQ]?” I consider that the Husband prevaricated by answering, “I can’t answer that. Retrain for what?” He did then concede that after 15 years away from health care the Wife was de-skilled and that many treatments and medications had changed during the 15 years.
In 2016 the Wife completed a Diploma in Health Care and in 2017 she took up a position as an educator at a school in Country AQ, and remained in that position until 2019 on a salary of Country AQ $89,000 per year, although she only received three quarters of that amount due to not being paid during school holidays. In the summer of 2018/2019 the Wife obtained a part-time position at a Company AN in City L and in July 2019 she took up a full-time contractor’s position with that company.
The Wife’s Financial Statement relied on at hearing was sworn or affirmed by her on 9 February 2018, three years and one month prior to the hearing. It did not reflect and it is difficult to see how it could have reflected her real personal expenditure as set out in Part G and Part N as at the time of the hearing. In paragraph 51 of her trial affidavit the Wife says that she has an income from her employment of $120,000. The Wife had no superannuation at the time of hearing. No evidence was given of an employer compulsory superannuation scheme in Country AQ that would have resulted in the Wife receiving a superannuation entitlement on commencement of employment. The Wife clarified during her cross examination that her income of what the Husband referred to in his question as “$110,000 Country AQ” was “before tax as a contractor”.
On hearing the Husband relied upon his Financial Statement sworn or affirmed 9 December 2020. He accepted in his cross examination that the Financial Statement reflected an annual income of $131,976, and he also accepted that it was an annual income significantly less than his annual income at about the time of separation. He confirmed that all of the earnings he generates and the earnings generated by Ms C are paid into E Pty Ltd and that they are each paid a salary of $1,538 per week, in addition to which they each receive $1,000 per week from the Harvey Family Trust – this is confirmed in the Financial Statement of Ms C sworn or affirmed 9 December 2020.
The submissions of the parties.
Most of the Wife’s written submissions traversed the evidence on hearing and in places where those submissions contained assertions of fact not found in the evidence on hearing I have disregarded that material. In the section under “Summary” the Wife submits that throughout the parties’ cohabitation and up to “the beginning of 2015” the parties made equal contributions, the Wife’s contribution as homemaker and parent being equal to the Husband’s contribution as income earner.
The Wife then submits that since 2015 her contributions exceeded those of the Husband in relation to the care and support of the children and referred to factors leading to her being “severely financially disadvantaged” since separation and factors that she asserts have provided to the Husband a financial benefit “from the divorce”.
The Wife makes a suggestion at the end of her submissions that the Husband may be concealing assets, but I can find no evidence to found that assertion.
The Husband’s written submissions contain the factors that he submits support a finding by the Court that it is not just and equitable to make any order altering the interests of the parties in the property. The Husband then engages with the evidence in his written submission and responds to written submissions of the Wife relating to post-separation contributions by referring to asserted factual matters.
In the Husband’s “Summary” at the end of his written submissions he sets out once again matters that he submits support his contention that there should be no alteration order made under section 79.
In the Wife’s written submissions in reply the Wife engages with some of the submissions made by the Husband in support of his proposed order, particularly in the section under “In Summary”.
I have carefully considered all of the written submissions made by the parties except any factual assertions not found in the evidence on hearing.
The law
The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[2] Relevant in this case, section 79(1) vests the Court with power to alter the interests of the parties in property,[3] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[4]
[2] Family Law Act 1975 (Cth) s 79.
[3] Family Law Act 1975 (Cth) s 79(1)(a).
[4] Family Law Act 1975 (Cth) s 79(1)(d).
However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[5] The legislative process required by section 79 was considered by the High Court in Stanford & Stanford.[6]
[5] Family Law Act 1975 (Cth) s 79(2).
[6] Stanford & Stanford (2012) 247 CLR 108.
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
(a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
(b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
(c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[7]
[7] Stanford & Stanford (2012) 247 CLR 108; see, especially, [37].
That the interests as described above are ‘existing’ is of importance, as the Court noted, because the text of the section gives reference to ‘altering’ the interests.[8]
[8] Stanford & Stanford (2012) 247 CLR 108, [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
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).[9]
[9] Stanford & Stanford (2012) 247 CLR 108, [42].
I will examine the matrimonial asset pool and the existing interests of the parties, before determining whether it is just and equitable to make a property adjustment order.
If the Court determines that it is just and equitable to make an order under section 79, the Court must then consider what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia.[10]
[10] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395, [39].
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a court when determining a property application:
(a)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[11]
(b)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b), and (c), and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties”;^[12]
(c)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[13]
(d)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[14]
[11] Hickey [2003] FamCA 395, [39].
[12] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c):
[13] Hickey [2003] FamCA 395, [39].
[14] Hickey [2003] FamCA 395, [39].
The Full Court pointed out in Hickey that pursuant to the wording of section 79, there can only be one property settlement order at any one time, and that the one property settlement order is final, subject only to anything that may be properly done pursuant to section 79A of the Act.[15]
[15] Hickey [2003] FamCA 395, [47].
The Full Court held in Fontana & Fontana:[16]
… Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513).[17]
[16] Fontana & Fontana [2018] FamCAFC 63.
[17] Fontana & Fontana [2018] FamCAFC 63, [27].
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship, during their relationship, and following separation.[18]
[18] See, eg, Jabour & Jabour [2019] FamCAFC 78.
The approach to determining the appropriate percentage of the net value of property in relation to the contributions of the parties, at step two of the four-step process, requires an assessment of contributions by, or on behalf of, each of the parties in a holistic manner, rather than attaching specific contributions to a specific item of property and making a determination upon that basis. To do the latter would be to disregard the whole of the contributions made during the whole of the relevant period of the relationship by or on behalf of each of the parties.
As the Full Court said in Dickons & Dickons[19] at paragraphs 14 to 16:
[14]As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[15]The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “...directly or indirectly...” “...to the acquisition, conservation or improvement of any of the property ...” and goes on to also refer to the financial contribution made “...otherwise in relation to any of that last-mentioned property...” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
[16]While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “...acquisition, conservation or improvement of any of the property...” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
... revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings ...[20]
[19] Dickons & Dickons [2012] FamCAFC 154.
[20] Dickons & Dickons [2012] FamCAFC 154, [14]-[16].
The Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.[21] The principle was expressed succinctly by the Full Court in the joint judgment of Bryant CJ and Ainslie-Wallace J in Fields & Smith[22] at paragraph 168:
...the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial, and the analysis requires the Court to weight all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of Hearing, including the post-separation period.[23]
[21] In the Marriage of Harris (1991) 104 FLR 458, 464.
[22] Fields & Smith [2015] FamCAFC 57.
[23] Fields & Smith [2015] FamCAFC 57, [168].
The Full Court has been repeatedly clear that the approach to property settlement under section 79 of the Act is not an accounting exercise. Here, I note the comments of the Full Court in Grier & Malphas[24] at paragraph 129, where Murphy and Kent JJ said:
As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. Nowhere error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and section 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.[25]
[24] Grier & Malphas (2017) 55 Fam LR 107.
[25] Grier & Malphas (2017) 55 Fam LR 107, [129].

The approach adopted by trial judges to the concept of ‘addbacks’ over the years since the commencement of the Act has varied between placing back into the matrimonial asset pool no-longer existent assets as “notional assets” and giving them a value and dealing with them as if they still existed, to taking any such notional assets into account at step three of the four-step process when considering the matters referred to in section 75(2) of the Act and, in particular, at section 75(2)(o), “any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.”[26]
[26] Family Law Act 1975 (Cth) s 75(2)(o).
In AJO v GRO,[27] at paragraphs [30] to [31], the Full Court identified three types of addbacks that are commonly encountered in property settlement decisions:
[27] AJO v GRO (2005) 191 FLR 317.
[30]To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)Where the parties have expended money on legal fees. In DJM v JLM (1998) 23 Fam LR 396 the Full Court said (at 410-411):
11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b)Where there has been a premature distribution of matrimonial assets. In In Marriage of Townsend (1994) 18 Fam LR 505 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said (at 509):
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the Husband did was to distribute to himself an asset in which the Wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the Husband as a matter to which regard should be had under section 75(2). It seems to me that the Husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the Husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c) In the circumstances outlined by Baker J in In Marriage of Kowaliw [1981] FLC 91-092 at 76,644: As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
•(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
•(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.
[31] As the Full Court said in Browne v Green [1999] FLC 92-873 at 86,360:
[44]We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction — a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.[28]
[28] AJO v GRO (2005) 191 FLR 317, [30]-[31].
In AJO & GRO, the Full Court was careful to point out the difference between a “premature distribution” and expenditure on reasonable day-to-day expenses and, in particular, expenditure on reasonable self-support.[29]
[29] See especially, AJO v GRO (2005) 191 FLR 317, [30](b).
In Talbot & Talbot, the Full Court said:
Where one party unilaterally distributes to themselves property which no longer exists and which, but for that premature distribution, would be susceptible to section 79 orders, justice and equity may require the Court to take account of the dissipated property by adding it back as against the dissipating party (Townsend & Townsend (1995) FLC 92-569). Whether that should occur, or whether the dissipation should be taken into account pursuant to section 75(2)(o), or indeed at all, are all matters requiring the exercise of a trial judge’s discretion (In the marriage of AD and AC Townsend (1995) FLC 92-569; Omacini & Omacini; Cerini & Cerini [1998] FamCA 143).[30]
[30] Talbot & Talbot [2015] FamCAFC 132, [31].
In Vass & Vass, the Full Court said the following at paragraphs 137 to 139:
[137]At [50] to [65] of the First Reasons under the heading “Add-backs,” the trial judge held that $25,000 withdrawn by the Husband from the parties’ bank accounts post-separation should be added back into the pool of assets, and further concluded that $50,000 which the Husband had, post-separation, paid to his parents, purportedly in repayment of a loan from them, should also be added back.
[138]There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
[139]The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.[31]
[31] Vass & Vass [2015] FamCAFC 51, [137]-[139] (emphasis in original).
The reference in the Full Court’s decision in Vass to the Full Court’s decision in Bevan & Bevan was to the comments made in obiter by Bryant CJ and Thackray J:
[79]We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under section 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that section 79(4) and in particular section 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.[32]
[32] Bevan v Bevan, (2013) 279 FLR 1, [79].
The question of addbacks was again considered by the Full Court in Masoud & Masoud in paragraphs 90 to 99 of that judgment, and in particular at paragraph 97 where the Court said:
[97]… The way in which non-existent property is to be treated remains a matter for judicial discretion (see Townsend & Townsend FLC 92-569) … the provision of an agreed balance sheet providing for the inclusion of notional property would not mandate his Honour’s acceptance of it or that he would treat the notional property in the same way as had the parties.[33]
[33] Masoud & Masoud [2016] FamCAFC 24, [97].
In that case, the Full Court held that it was open to the trial judge in the exercise of discretion to deal with asserted addbacks in a manner different to that proposed by either of the parties, or indeed by the parties jointly, as reflected in that case by the treatment of addbacks in an agreed balance sheet.
In Shan & Prasad, the Full Court, in dealing with the issue of ‘addbacks’ said at paragraphs 130 and 131:
[130]… A Court cannot create property for the purposes of alteration. Section 79 empowers a Court to alter interests of the parties to the proceedings in property. Property is defined in section 4 of the Act to mean:
... [In] relation to the parties to a marriage or either of them – means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
[131]As French CJ said in Kennon & Spry (2008) 238 CLR 366 at 390, “‘property’ in section 79 is to be read as part of the collocation ‘property of the parties to the marriage’”. It is to be read widely and conformably with the purposes of the Act. Gummow and Hayne JJ said at 397 that “the term ‘property’ is not a term of art with one specific and precise meaning”. The purpose of the Act as set out in section 79(1) is to alter interests in property to which a party has an interest in possession or reversion.[34]
[34] Shan & Prasad [2018] FamCAFC 12, [130]-[131].
The Full Court of the Family Court of Australia has provided useful guidelines for adding back to the property available at trial in paragraphs 27 to 42 and 46 and 47 of Trevi & Trevi, which I find it of assistance to quote in full, with original footnotes:
Guidelines for adding back to the property available at trial
(a) Dissipation of property and expenditure other than on legal fees
[27]The Full Court held in Omacini and Omacini[35] that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.[36]
[35] (2005) FLC 93-218 (“Omacini”).
[36] Omacini at 79,617 [30], referencing in particular Kowaliw and Kowaliw (1981) FLC 91-092 (“Kowaliw”); Townsend and Townsend (1995) FLC 92-569 (“Townsend”).
[28]However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”.[37] An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.[38]
[37] Omacini at 79,619 [39].
[38] Cerini & Cerini sub nom C & C [1998] FamCA 143 (“Cerini”) at [46].
[29]The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it”[39] at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation.[40] Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
[39] Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 355. See also, Stanford v Stanford (2012) 247 CLR 108.
[40] Marker & Marker sub nom M & M [1998] FamCA 42 at [2.11].
[30]Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.[41]
[41] Line and Line (1997) FLC 92-729 at [4.72] as quoted in Chorn at 79,317 [38] (noting that, at [4.71], legal fees were said, in obiter, to be different and there is reference to the “notional property” approach). It has also been said that premature expenditure might be taken up in the assessment of contributions, for example by a party making a disproportionately greater indirect contributions to the existing property by reason of other property having been dissipated (see, Watson & Ling (2013) FLC 93-527 at 86,924 [33]).
(b) Expenditure on Legal Fees
[31]To the considerations just discussed must be added the propositions emerging from authority that paid legal fees as a category of addback is imbued with considerations specific to that expenditure. The Full Court said in Chorn:
[56]     In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
[57]     If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
[58]     If funds used to pay legal fees have been generated by a party post‑separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post‑separation income or acquisitions.
[32]Those passages can be seen as an attempt to establish “guidelines”,[42] undertaken after a detailed examination of earlier authorities,[43] for the treatment of paid legal fees within s 79 proceedings. There can be little doubt that the statements made in that case have been applied by trial judges ever since.
[42] See, the comment to that effect in the earlier decision of Browne v Green (1999) FLC 92-873 at 86,360 [44].
[43] Chorn at [32] – [55] referencing: Farnell and Farnell (1996) FLC 92-681; Line and Line; A and A (unreported, 23 December 1997, Lindenmayer, Kay & Dessau JJ); Marker & Marker sub nom M & M [1998] FamCA 42; DJM v JLM (1998) FLC 92-816; C v C (1998) FLC 92-824; Ibrahim and Beavis [1999] FamCA 765; Gartner & Gartner [2000] FamCA 793; Clifford and Lodge [2000] FamCA 1666; Finlayson v Finlayson and Gillam (2002) FLC 93-121.
[33]The word “guidelines” is used advisedly so as to distinguish the same from “binding principles of law”.[44] The distinction is important. Failure to follow a binding principle of law is an error of law. By contrast, the failure of a trial judge to follow a guideline:[45]
[44] See, Norbis v Norbis (1986) 161 CLR 513 (“Norbis”) at 520 (Mason & Deane JJ); at 537-8 (Brennan J); Mallet v Mallet (1984) 156 CLR 605 at 608-9 (Gibbs CJ). See also, the discussion in Hoffman & Hoffman (2014) FLC 93-591 at [21]–[44].
[45] Norbis at 520 (Mason & Deane JJ).
…does not of itself amount to error, for it may appear that the case is one in which it is inappropriate to invoke the guideline or that, notwithstanding the failure to apply it, the decision is the product of sound discretionary judgment. [However] [t]he failure to apply a legitimate guideline to a situation to which it is applicable may … throw a question mark over the trial judge’s decision and ease the appellant’s burden of showing that it is wrong…
[34]The guidelines emerging from Chorn should be read together and read conformably with the Full Court authorities upon which they are based. That being so, the delineations there referred to — “the funds used existed at separation … such that both parties can be seen as having an interest in them”; or “funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours” or received by a party “in his or her own right (for example, by way of gift or inheritance)” - cannot be seen as determinative of the exercise of discretion but, rather, as informing it.
[35]Again, the matters just referred to have important ramifications in an appellate context. They may ease the appellant’s burden of showing that “although the nature of the error may not be discoverable … a substantial wrong has in fact occurred”,[46] or that the decision is “plainly wrong, [the] decision being no proper exercise of [the] judicial discretion”.[47] Equally, they may ease the burden of establishing that irrelevant considerations have been taken into account or that relevant considerations have not been taken into account.
[46] House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
[47] Gronow v Gronow (1979) 144 CLR 513 at 519 (Stephen J).
[36]Paid legal fees occupy a particular position in the consideration of addbacks by reason of s 117(1) of the Act; a matter not relevant to any other form of expenditure or dissipation of property the subject of an addback claim.
[37]An order failing to addback legal costs is a pre-emptive decision about one party paying the other’s legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party’s costs.[48]
[38]If, contrary to the demands of that section, there is to be a payment of costs, the award is dependent upon a finding of justifying circumstances which, in turn, is dependent upon (non-exhaustive) considerations all of which are informed by antecedent events - for example, whether one party has been “wholly unsuccessful” and “the conduct of the parties to the proceedings”.[49] An award of the costs of trial, if any, is in the usual run of events made after the respective entitlements of the parties to a settlement of property have been assessed and, importantly, any awarded costs are paid from the assessed entitlement to property received by the paying party.
[39]As has been said, legitimate guidelines “guide the exercise of a discretion”; they do not replace it.[50] Guidelines, must “[preserve], so far as it is possible to do so, the capacity … to do justice according to the needs of the individual case”.[51] The decision to addback or not addback paid legal fees remains a matter of discretion. But, a finding that it is just and equitable to not addback an amount of legal fees so paid is a finding that it is just and equitable for the other party to contribute to the costs of the first party in that proportion as part of an overall assessment of the justice and equity governing their property division.
[40]The considerations just referred to are plainly always important and central to the exercise of that discretion in respect of paid legal fees.
[41]The passages from Chorn, quoted above, draw a distinction between legal costs met from property that would otherwise be available at trial and legal costs met from funds “generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance)”. The proposition there advanced, that such expenditure “would generally not be added back”, also needs to be seen as a guideline informing the relevant discretion rather than determining it. A further distinction is suggested in Chorn between funds generated in that manner and “[f]unds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement”.
[42]The latter suggestion recognises the discretion inherent in the task and also, perhaps, that in the particular circumstances of a case, adding back sums generated post-separation in the different manners suggested might create injustice as much as it might cure it.[52]
…
[46]In Stanford v Stanford,[53] the High Court emphasised as fundamental that a consideration of whether it is just and equitable to make a property settlement order begins by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.[54]
[47]The essence of a claim for addbacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasised by the High Court. Adding back does not seek to create property interests that do not exist. Rather, doing so emphasises that satisfying the respective requirements of ss 79(2) and (4) of the Act to do justice and equity can require an “accounting” or “balance sheet” exercise for the purposes of s79(2) and (4), so as to include the value of the dissipated property or expended sums within the total value of the parties’ existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party.[55]
Is it just and equitable to make an order under section 79 of the Act altering the interests of the parties in the matrimonial property pool?
[48] Family Law Act 1975 (Cth) s 117(1).
[49] Family Law Act 1975 (Cth) s 117(2A), specifically sub-paragraphs (e) and (c), respectively.
[50] Norbis at 537 (Brennan J); 519-520 (Mason & Deane JJ).
[51] Norbis at 520 (Mason & Deane JJ).
[52] See, Doolan, P., “Now you see it, now you don’t: notional property and add-backs in family law”, Families, broken, blended, mended: conference handbook: 13^th National Family Law Conference, p 255 at [2.3]ff. The paper itself provides examples of the potential injustice and inequity that can occur by a strict adherence to the “source of funds” distinction referred to in Chorn.
[53] (2012) 247 CLR 108 (“Stanford”).
[54] Stanford at 120 [37] (emphasis in original) (French CJ, Hayne, Kiefel and Bell JJ).
[55] See, eg, Bevan & Bevan (2013) FLC 93-545 at [79]; Vass & Vass (2015) 53 Fam LR 373 and pre‑Stanford statements to similar effect in Milankov & Milankov (2002) FLC 93-095.

As pointed out by the High Court in Stanford, the Court’s first task is to determine if it is just and equitable in all the circumstances to make an order under section 79 altering the interests of the parties to the marriage in the property. The starting point for that determination is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The task at present is to identify what property should compose the matrimonial property pool and the interest of each of the parties in the property, not how, if at all, the parties’ interests in the property should be altered.
By the end of the hearing the Balance Sheet filed by the parties on 1 March 2021 had been amended by the deletion of items that by agreement should not have been included, such as a home owned by members of the Wife’s family of which the Wife had used rent-free, and real and personal property that had been owned by the Husband, but that had been sold. The Balance Sheet was also amended to reflect agreements between the parties achieved during hearing as to the values. However, the Balance Sheet by the end of the hearing still reflected some disagreements.
The Balance Sheet at the end of the hearing was as follows:

Item

Ownership

Description

Wife

Husband

ASSETS

1

Wife

Motor Vehicle 4

$12,000

$12,000

2

Wife

Household contents

$15,000

$15,000

3

Wife

Motor Vehicle 5

$3,000

$3,000

4

Husband

Household contents

$15,000

$15,000

5

Husband

E Pty Ltd t/a AB Clinic

Nil

Nil

6

Husband

Motor Vehicle 3

$12,000

$12,000

7

Husband

Motorbike

$15,000

$15,000

8

Husband

AK Street, Suburb AL - 50% beneficial ownership

$335,000

$335,000

9

Husband

Harvey Family Trust (Harvey AS Pty Ltd trustee)

Nil

Nil

10

Husband

AC Pty Ltd

Nil

Nil

Subtotal

$407,000

$407,000

Addbacks

11

Wife

Proceeds of sale of the V Street, Suburb U property

$277,298

$277,298

12

Wife

Proceeds of sale of Motor Vehicle 1

$13,340

$13,340

Subtotal

$290,638

$290,638

Liabilities

13

Wife

Loan from Mr N

$85,000

Nil

14

Wife

Westpac Visa Card

$5,000

Nil

15

Wife

Company AO

$15,000

Nil

16

Wife

Company AR Visa

$10,000

Nil

17

Wife

Company AP Visa credit card

$15,000

Nil

18

Husband

Virgin credit card ($5000 pre-separation debt)

Nil

$19,956

19

Husband

ANZ credit card

Nil

$20,099

20

Husband

Home loan on AK Street property (50%)

$274,491

$274,491

Subtotal

$404,491

$314,546

Superannuation

21

Husband

Harvey Superannuation Fund SMSF

$520,000

$459,889

Subtotal

$520,000

$459,889

The existing assets in the matrimonial property pool are identified and their ownerships in law and in equity are ascertained. The reference at items 5 and 10 to corporations are references to the value of the Husband’s shareholding in those corporations, agreed between the parties to be valued at nil. The reference at item 9 to the Harvey Family Trust is a reference to any beneficial interest the Husband has in that trust, agreed between the parties to be nil. On the evidence on hearing, I agree. The Husband’s interest in item 8, the real property at AK Street, Suburb AL is a beneficial interest on the basis that on the evidence he accepts that he contributed equally with Ms C to the purchase of the property, though not being on title as a registered proprietor, and he is jointly and severally liable with Ms Harvey in relation to the loan accounts secured on the property.
The assertion on the Balance Sheet of “nil” by the Husband in relation to the Wife’s liabilities and by the Wife in relation to the Husband’s liabilities does not reflect a contention by each that the other does not owe monies, but reflects a contention by the Husband that the Wife’s liabilities should not be included when determining the matrimonial property pool and an assertion by the Wife that she was not herself aware at the time of agreement on the Balance Sheet of the amount owing on each of the Husband’s liabilities.
The disagreement between the parties in relation to the value of the Husband’s member account in the Harvey Superannuation Fund is reflective only of the Wife’s assertion of what the account was worth at the time the Husband’s six previous superannuation fund entitlements were rolled into the self-managed superannuation fund in about May 2015, and reflective of the Husband’s assertion by inclusion on the Balance Sheet filed 1 March 2021 of the value of his member account in the fund – though how the figure was arrived at I cannot ascertain from the other evidence.
At 30 June 2015 the Husband’s member account was valued at $516,970.13 (Annexure 1 to the Wife’s affidavit); at 30 June 2017 at $471,948 (paragraph 123.11 of the Husband’s affidavit); at 30 June 2018 at $466,294.22 (Exhibit A4 at page 11 of 17); at 30 June 2019 at $424,128.90 (Exhibit A4 at page 12 of 17); and at 9 December 2020 at $406,944 (item 45 in the Husband’s Financial Statement of 9 December 2020).
All of the Wife’s liabilities have arisen post separation and post-sale of the V Street, Suburb U property. The Husband asserted in his affidavit that at the time of separation the Virgin credit card debt was $20,034.54, but asserted in the notes to the Balance Sheet filed 1 March 2021 that “at separation the joint debt on the Respondent’s Virgin Credit card was $19,956.92”, the amount asserted by him as the value of the debt at the time of hearing on the Balance Sheet. On the other hand, the Husband asserts in those notes that the Virgin credit card debt and the ANZ credit card debt “are debts accrued by the Respondent post separation and are included only to provide information as to the Respondent’s current financial position”, and similarly in relation to the Wife’s debts, accurately, “these are debts accrued by the Wife post separation.”
The Husband’s Financial Statement of 9 December 2020, three months prior to the final hearing, asserts that his ANZ credit card debt is $23,838 and his Virgin Visa debt is $35,653.
Leaving aside the debt asserted by the Wife to be owed to Mr N in a sum of $85,000, the Wife’s asserted liabilities total $45,000 and the Husband’s asserted liabilities total $40,055. It is clear that all of those liabilities were accrued by the parties post separation, separation having occurred just short of seven years prior to the hearing. As a matter of discretion, I do not intend to include any of those liabilities in the calculation of the matrimonial property pool.
The Wife includes a debt of $85,000 to Mr N at item 50 of her Financial Statement of 9 February 2018. From the evidence on hearing we know that Mr N is the Wife’s brother-in-law. The only reference to a loan from the family in the Wife’s evidence is in paragraph 34 where she says, referring to the period after 1 April 2015 when the Husband suspended financial support to the Wife and the children: “my family in the UK helped us financially”, and paragraph 49 where, referring to her circumstances in December 2020 when she completed her affidavit, the Wife says:
In order to support the children and my training I have had to take out high interest loans and borrow from family. I now owe $40,000 on credit cards and loans and a further $40,000 to family.
I have no evidence as to when the asserted loan or loans totalling $85,000 were provided to the Wife by Mr N, or the terms of any such loan or loans – any amounts provided by way of debt repayable on demand on or before 7 March 2015 would be statute barred. As a matter of exercise of discretion, I will not include a debt of $85,000 owed by the Wife to Mr N and calculation of the matrimonial property pool.
The sum of $277,298 received net by the Wife from the sale of the V Street, Suburb U property in January 2016 had been wholly expended by her on living expenses for herself and the children, the costs of moving to City L, Country AQ and setting up a household and purchasing a car in Country AQ. Similarly, the proceeds of the sale of the Motor Vehicle 1, $12,301 (I accept the Husband’s figure) was wholly expended by the Wife on preparation of the V Street, Suburb U property for sale. What was once a property owned by the Wife - the actual money - is long gone.
I respect the statements of the law by the Full Court referred to earlier in these Reasons under “The law” in relation to the concept of addbacks and am bound by those decisions. My view is that in accordance with the statement of the law as it relates to section 79 (and section 90SM) of the Act by the High Court in Stanford & Stanford, referred to in obiter by the Full Court in Bevan & Bevan, an order altering the interests of the parties in the property under those sections must relate to existing property. On that basis I will not add back either amount to the matrimonial property pool.
However, I do find that it is appropriate that those monies received by the Wife post separation and expended by her be considered when assessment is made of any adjustment appropriate between the parties relating to the factors in section 79(4)(d), (e), (f) or (g), particularly when considering the matters in section 75(2).
I find that the value of the Husband’s member account in the Harvey Superannuation Fund is $459,889 as stated by the Husband on the Balance Sheet filed 1 March 2021. The figure asserted by the Wife at $520,000 is an historical figure of the value of the Husband’s superannuation interests at about the time of separation and it is trite law that the relevant values when considering composition of the matrimonial property pool, including superannuation, is as at the date of hearing, with changes in value between separation and hearing being matters for consideration, where appropriate, when assessing contributions or any adjustment between the parties under section 79(4)(d) to (g).
The parties separated in mid-May 2014 and have not lived in a marital relationship since that time. There is not and will not be a common use of property. There is no property in which the parties have a joint interest. On the basis of what I have asserted to be the interest of the parties at law or in equity in the property that I find composes the matrimonial property pool, the Husband is the owner at law or in equity of a vastly greater proportion than the Wife, being a net $562,398 including his superannuation account, compared to the Wife’s $30,000. That is 5% in the hands of the Wife and 95% in the hands of the Husband.
On the evidence I have reviewed as to contributions at cohabitation, during cohabitation and post separation it would not be just and equitable to leave the parties interests as they are. I have no difficulty in finding that it is just and equitable to make a property settlement order under section 79 of the Act in this matter.
The parties’ contribution based entitlements.
Neither party made any initial contribution at the commencement of cohabitation.
The parties agree that they each worked and contributed on an equal basis financially from the commencement of cohabitation in 1988 until the Wife left work in 1998 when the parties moved from City L to City M in Country AQ. Their first two children, Mr J and Mr K, were born in 1996 and 1998 respectively.
From the time that the Wife left work to be a full-time homemaker and parent for the family until the parties’ separation in mid May 2014, the Husband was the sole financial supporter of the family, often working multiple jobs at a time and for long hours, including periods of several days at a time away from home. I find that the Wife was virtually solely responsible as between the parties for the parenting of the children and the homemaker role from 1998 through to separation, with some occasional contributions thereto by the Husband. In keeping with the parties’ evidence I find that the contributions of the parties - as homemaker and parent on the Wife’s part, and as financial supporter on the Husband’s part - were equal during cohabitation, with the parties having made equal contribution in all respects from commencement of cohabitation in 1988 until the Wife left work in 1998.
I find that in 1999 parties had benefit of Country AQ$53,000 received as a gift from the Wife’s family, being a contribution on behalf of the Wife.
In 2005 the Husband received an inheritance from his late mother’s estate of £135,000.00 and I find that he contributed the whole of that sum to expenditure on behalf of the family and that this was a contribution by the Husband.
When the parties purchased the V Street, Suburb U property the Wife received a gift of $175,000 from her mother, the whole of which was applied toward the purchase, including the cost of purchase. I find that this sum represents a contribution by the Wife.
I find that the contributions by each of the parties in terms of monies received from family members during cohabitation was also an equal contribution. Accordingly, from the commencement of cohabitation until separation the parties made equal contributions.
The contributions of the parties from separation to hearing is somewhat more difficult to assess. The Husband gives his meticulous, though not always accurate, evidence as to monies provided from his earnings for the benefit and support of the Wife and the children post separation, as well as his evidence, which is once again not entirely accurate, of the debts arising from the parties’ cohabitation paid by him after separation without contribution by the Wife. There is no contest that significant sums of money were provided by the Husband to the Wife for payment of living expenses, including school fees post separation, in addition to the amount paid by the Husband to the Wife under the interim spousal maintenance order made 2 July 2015 and payment of child support by the Husband to the Wife for the children after formal assessment in April 2015.
The Husband made much in his evidence of the extra $67,963.79 that he asserts represented contributions made by him to his Super Fund AE between separation and rollover of that fund into the self-managed superannuation fund in about May 2015, but his arguments in that respect are a bit hollow when one considers that his member account in the self-managed super fund is only $5,721 more after nearly seven years of contribution post separation than what he asserts was the value of his member account on completion of rollover, without including that $67,963.79. Accordingly, I cannot find that the Husband has made any significant contribution to his superannuation entitlement post separation.
The Wife had sole occupation as between herself and the Husband, together with the children, of the V Street, Suburb U property from separation in mid-May 2014 until its sale in January 2016, being one year and seven months, with the required payments on the home loan account secured by mortgage on the V Street, Suburb U property being paid directly from the Husband’s earnings from separation until April 2015 and indirectly from those earnings, through the hands of the Wife, thereafter.
For her part, the Wife was virtually sole carer for the children Mr K, O and P from separation until each child reached the age of 18. At separation, Mr J had already reached 18 years of age, Mr K was 16, O 13 and P 12 years of age. Mr K reached 18 in March 2016, O in October 2018 and P in January 2020. Certainly, from no later than December 2015 the Wife did not have access to the Husband’s income and received no benefit from it. The Husband was paying child maintenance in accordance with the legislation, though payments fell into arrears to the extent that I accept the Wife’s evidence – that at one point he was $23,000 in arrears. The arrears were ultimately paid to the Wife.
Whilst the Wife did have access to the Husband’s earnings over the period from separation to December 2015, on its face a contribution by the Husband to the welfare of the family unit during that time, there is to an extent a partly counterbalancing contribution by the Wife to the income of the Husband in that period in that her performance of the role of homemaker and parent through the parties’ cohabitation from 1998 onwards. This freed the Husband not only to engage in various employments as a medical professional and so increase his experience and therefore employment value and earning capacity, but also to engage in further training and attendance at conferences and further education events which also increased his employment value and earning capacity.
I assess the contribution based entitlements of the parties from the commencement of cohabitation to hearing, considered holistically, to be equal.
Is there a basis for an adjustment between the parties under section 79 (4) (d), (e), (f) or (g)?
The order proposed by the Wife, that the Husband pay to her $750,000, could have a significant effect upon her earning capacity by freeing her to take time off from paid employment to engage in retraining over a period of years that may enable her to regain her registration as a medical professional in Country AQ. However, in real terms it has no effect as there is no fund from which that sum can be obtained in the matrimonial property pool. It is a sum in excess of what I have calculated be the net value of the matrimonial property pool.
The order proposed by the Husband is that there be no alteration of the parties interests in the matrimonial property pool and as such, an order would not have any effect on the earning capacity of either party to the marriage.
The Wife was 57 years of age and the Husband 56 years of age at the date of hearing, although there is one week short of two years difference in their age. There is no evidence that the health of either party is a matter that should be taken into account in assessing any adjustment between the parties.
The Wife has an income of $120,000 per year and the Husband has an income of $132,000 per year. However, clearly on the evidence, the Husband’s income is split with his Wife, Ms C, even bearing in mind that any income generated by Ms C’s participation in their practice is a component of the source of their incomes. Both the Husband and Ms C indicate exactly the same income from the same sources. Based upon the Husband’s own evidence of the course of his earnings over the relevant period from 1988 to the hearing there is no doubt that the Husband’s earning capacity is significantly greater than that of the Wife, and that the Husband has available to him for his financial support all the earnings of his Wife, Ms C. This consideration grounds an adjustment in favour of the Wife.
Each of the parties has the physical and mental capacity to engage in appropriate gainful employment.
The children of the marriage are all or over the age of 18 years, though it is made plain on the evidence that the Wife financially assists each of them so far as she is able, and that the Husband ceased to financially assist the children some years before the hearing.
There is no evidence of the commitments of the Wife necessary to enable her to support herself that is of any real use, as her Financial Statement relied on at the hearing was three years out of date. The Husband’s Financial Statement reflects that his fixed expenses set out in Part G of his Financial Statement are $378 per week less than his weekly income, but that does not include the day-to-day living expenses such as food, household supplies utility costs, motor vehicle costs and so forth. The Husband shares his day-to-day living expenses with his wife, whose Financial Statement shows an excess of income over fixed weekly expenses of $1,608. However, in the absence of evidence in relation to the Wife’s commitments necessary to enable her to support herself dated approximate to the hearing I cannot find that there is a basis for an adjustment between the parties on this consideration.

The Husband is in a marital relationship with Ms C and it is plainly a relationship of mutual financial support. The Wife is not responsible (in law) for the support of any other person, though on the evidence she contributes financially to assisting the children, so far as she is able.
The Husband is not eligible for or in receipt of any pension, allowance or benefit under the law of the Commonwealth, a State or Territory or any other country or any superannuation fund or scheme.
The Wife’s Financial Statement of 9 February 2018 indicated that she was in receipt of “Working with Families Tax credits” in the sum of $100 per week, but at that time both O and P were still minors and the Wife’s earned income was about $50,000 per year. There is no evidence that at the time of the hearing the Wife was in receipt of or eligible for a pension, allowance or benefit under any law of the Commonwealth, a State or Territory or of any other country or pursuant to any superannuation fund or scheme.
The parties’ standards of living have evolved over the seven years between their separation and the hearing and I am not in any real position to compare their current standard of living with what the Husband suggested was, and the Wife accepted was, a frugal lifestyle during their cohabitation. I can only find that the standard of living of each of the parties is reasonable in all of the circumstances.
The Wife contributed to a significant degree to the income, earning capacity and property of the Husband (in particular the accumulation of his superannuation entitlements) both during their cohabitation and after separation until P reached 18 years of age on in 2020, by attending almost solely as between the parents to the parenting role and the homemaker role, freeing the Husband to develop his income and earning capacity as I have already outlined when considering the assessment of the contributions of the parties. In that regard, I must be most careful not to double count that contribution by including it as a significant factor in my assessment of contributions entitlements of the parties as I have already done, and also considering it as a basis for an adjustment between the parties in favour of the Wife. For that reason I do not regarded it as a matter justifying further adjustment between the parties.
However, the consideration of section 75(2)(k) requires me to take into account the duration of the marriage and the extent to which it has affected the earning capacity of either party. This is a consideration of significance in these proceedings. The Wife left the workforce as a qualified and registered medical professional in 1998 and thereafter was engaged exclusively in the homemaking and parenting roles in the family for the balance of the parties’ cohabitation and following separation up until she sought and obtained employment after moving to Country AQ. This employment was not as a medical professional as she was not in a position to take the further time without income that would be required to enable her to regain registration as a medical professional, but was employed a lower rate of pay than that demonstrated to have been available to the Husband due to his development of his experience and skills as a medical professional.
The Wife was out of the workforce entirely for 19 years until obtaining her post as an educator at a school in Country AQ in 2017. This consideration justifies an adjustment between the parties in favour of the Wife, but such consideration must be paired carefully with consideration of adjustment in favour of the Wife on the basis of disparity in income and financial resources (section 75(2)(b)), and most particularly disparity in earning capacity (section 75(2)(o)) between the parties so as to avoid doubling up on the same consideration.
I am required to consider any child support under the Australian legislation that the Husband has provided for the children of the marriage, but once again that factor has been a consideration in my assessment of the contributions based entitlements of the parties and will not be a consideration when assessing any appropriate adjustment between the parties.
I find that there are facts and circumstances which the justice of this matter requires to be taken into account, being the funds received by the Wife from the sale of the V Street, Suburb U property and expended by her. Though a paragraph in the document that is Exhibit R3 refers to the Wife’s receipt of the net proceeds of sale as being “by way of partial property settlement” and states that:
The whole amount received by the Wife shall be included in the asset pool, as an asset received by the Wife, for the purpose of the final hearing/settlement regardless of whether such monies have been expended or converted into another form at the time of final determination of the matter,
I have not dealt with those monies as an addback to the matrimonial property pool.
The document that is Exhibit R3 never found its way into becoming an order, though it was acknowledged by both parties during the hearing that they both acted in accordance with that document. Is there an injustice to the Husband in not treating the net proceeds of sale of the V Street, Suburb U property “as an asset received by the Wife”? There is not, by reason of the Husband’s superannuation being valued for the purposes of assessing the matrimonial property pool, at $459,889, not $490,000 as paragraph 3 of the Exhibit R3 document would require, and also by reason of my stated intention to make an order vacating the interim spousal maintenance order made 2 July 2015 as at the date to which stands paid, where otherwise there would be an arrears payable under that order of something in excess of $600,000.
But I do take the sum of $277,298 received by the Wife as the net proceeds of sale of the V Street, Suburb U property (after payment out of the joint CBA credit card and the X School fees) into account and find that it justifies consideration of an adjustment in favour of the Husband.
The amount of $12,301 received by the Wife from the sale of the Motor Vehicle 1 was expended by her entirely on preparing the V Street, Suburb U property for sale and so any benefit at all therefrom finds its way into the net proceeds of sale that she received and I do not regard it as a separate matter to be taken into account in considering whether it justifies any further adjustment between the parties in favour of the Husband.
I bear carefully in mind when considering the issue of any adjustment between the parties, the ages of the parties and how much longer any factors that I consider justify adjustment may be relevant.
In considering all the factors that I have found justify adjustment between the parties, involving adjustments in both directions, I find that there should be no adjustment between the parties of the percentage division I have determined is appropriate on assessment of contributions.
Accordingly, I find that it is just and equitable to make an order altering the interests of the parties in the property composing the matrimonial property pool and that a just and equitable order will affect an equal division of the matrimonial property pool between the parties.
I find that in the circumstances of this case, where the available assets are limited and have a net value of $132,509, the main component of which is the Husband’s $60,509 equity in the AK Street Suburb AL property, the appropriate approach is to consider the matrimonial property on a single pool approach including all of the available assets and the Husband’s superannuation entitlement and the liability relating to the AK Street Suburb AL property.
What orders altering the interests of the parties in the property are appropriate, just and equitable to be made?
Having determined that the interests of the parties in the matrimonial property pool should be altered so as to affect an equal division between them, I must consider what orders are just and equitable to bring about that result.
The Wife seeks an order that the Husband pay to her a sum of money. She also deposes in paragraph 80 of her affidavit that she seeks an order that would provide to her “a reasonable share of the superannuation that reflects my contribution to the marriage”.
If the Husband retains the property in which he has an interest before alteration being his household contents, the Motor Vehicle 1, the Motorbike, his equitable interest in the AK Street Suburb AL property, together with his liability for half of the debt secured on that property, and his superannuation entitlements (and leaving aside his interest in property that has no value) he holds $562,398 value, being 95% of the net matrimonial property pool of $592,398. The Wife holds the Motor Vehicle 4, Motor Vehicle 5 and her household contents with a total value of $30,000 or 5% of the pool.
An equal division of the pool between the parties will require an alteration of the interests of the parties so as to provide $266,199 to the Wife from the Husband. There is no asset apart from his superannuation entitlements that would enable the Husband to make such a payment and there is no asset that he can offer as security to borrow such sum or even part thereof, noting nothing should be done by way of order affecting the AK Street Suburb AL property as to do so would affect the rights of Ms C who is not a party to proceedings.
The only just and equitable order that will achieve what I have determined is the appropriate alteration of interest between the parties is a splitting order affecting the Husband’s entitlements in the Harvey Superannuation Fund providing a base amount to the Wife of $266,199.
At hearing neither party sought a superannuation splitting order. No opportunity was afforded for the parties to make specific submissions relating to the making of a superannuation splitting order. No formal procedural fairness has been afforded to the trustee of the Harvey Superannuation Fund, Harvey SMSF Pty Ltd, of which the Husband and Ms C are directors, pursuant to the requirements of section 90XZD of the Act. Until that section has been complied with the Court has no power to make a superannuation splitting order under section 90XT of the Act.[56]
[56] Naisby & Naisby [2021]FamCAFC 92.
I find that the just and equitable order to be made in this matter is a superannuation splitting order affecting the Husband’s member account in the Harvey Superannuation Fund, in favour of the Wife, with a base amount of $266,199, and otherwise each party retain the property currently in the party’s power, possession or control. To make that order I must both find that procedural fairness has been afforded to the trustee of the fund under section 90XZD of the Act and give the parties the opportunity to make submissions on such proposed order, as a matter of natural justice.
In affording the parties that opportunity I will not be affording them the opportunity to make submissions on my determination of the basis upon which the interests of the parties in the property should be altered, that being by equal division, but only in relation to the proposed nature of the order achieving that alteration – the superannuation splitting order in favour of the Wife that I have determined is just and equitable as the only way of achieving the required alteration.
That being the unfortunate circumstance, I will make an interim order restraining the Husband from dealing in any manner with his superannuation entitlements pending final order.
I will publish these Reasons and list the matter no less than 28 days later and make directions for the parties to each file and serve written submissions addressing what order is just and equitable to be made altering the interests of the parties in the property so as to achieve the division of the property between the parties that I have determined is appropriate. The expiration of 28 days will have provided the required procedural fairness to the trustee of the Harvey Superannuation Fund. I will consider any written submissions from the parties and on the further listing date, I will make a final order.

I certify that the preceding one hundred and ninety-four (194) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 6 October 2022

(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 …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …

File number(s):	SYC 2431 of 2015
Judgment of:	JUDGE MORLEY
Date of judgment:	6 October 2022
Catchwords:	FAMILY LAW – property – application for final orders pursuant to section 79 – parties to a long marriage – assessment of contributions – where the Court finds the Husband owns 95% of the net matrimonial asset pool and the Wife owns 5% – where the Court finds it is just and equitable to alter the parties’ interests in the net matrimonial asset pool equally – where the Court finds the only order to be made is a superannuation splitting order in favour of the Wife with a base amount of $266,199 – where procedural fairness to the trustee of the Husband’s superannuation fund must first be afforded before final orders can be made – where parties must provide written submissions regarding the proposed splitting order
Legislation:	Evidence Act 1995 (Cth) – s 13 Family Law Act 1975 (Cth) – ss 13E, 75, 78, 79, 90XT, 90XZD
Cases cited:	AJO v GRO (2005) 191 FLR 317 Bevan & Bevan (2013) 279 FLR 1 Dickons & Dickons [2012] FamCAFC 15 Fields & Smith [2015] FamCAFC 57 Fontana [2018] FamCAFC 63 Grier & Malphas (2017) 55 Fam LR 107 Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395 In the marriage of Harris (1991) 104 FLR 458 Jabour & Jabour [2019] FamCAFC 78 Keskin & Keskin [2019] FamCAFC 236 Masoud & Masoud [2016] FamCAFC 24 Naisby & Naisby [2021]FamCAFC 92. Sadasivam & Seshan [2019] FamCAFC 76 Shan & Prasad [2018] FamCAFC 12 Stanford & Stanford (2012) 247 CLR 108 Talbot & Talbot [2015] FamCAFC 132 Trevi & Trevi [2018] FamCAFC 173 Vass & Vass [2015] FamCAFC 51
Division:	Division 2 Family Law
Number of paragraphs:	194
Date of last submission/s:	21 May 2021
Date of hearing:	8-9 March 2021
Place:	Sydney
Applicant:	Litigant in Person
Respondent:	Litigant in Person

SYC 2431 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HARVEY Applicant
AND:	MR HARVEY Respondent

order made by:	JUDGE MORLEY
DATE OF ORDER:	6 October 2022

Item	Description	Sum
1	Lease on Motor Vehicle 2	$14,735.20
2	Lease on Motor Vehicle 1	$2655.69
3	Lease on Motor Vehicle 3	$8555.42
4	Company AE loan	$79,519.21
5	Virgin credit card	$20,034.54
6	CBA MasterCard #...23	$17,959.37
7	Tax to be paid on rollover of super	$29,856.75
TOTAL		$173,316.18

Item	Ownership	Description	Wife	Husband
ASSETS
1	Wife	Motor Vehicle 4	$12,000	$12,000
2	Wife	Household contents	$15,000	$15,000
3	Wife	Motor Vehicle 5	$3,000	$3,000
4	Husband	Household contents	$15,000	$15,000
5	Husband	E Pty Ltd t/a AB Clinic	Nil	Nil
6	Husband	Motor Vehicle 3	$12,000	$12,000
7	Husband	Motorbike	$15,000	$15,000
8	Husband	AK Street, Suburb AL - 50% beneficial ownership	$335,000	$335,000
9	Husband	Harvey Family Trust (Harvey AS Pty Ltd trustee)	Nil	Nil
10	Husband	AC Pty Ltd	Nil	Nil
Subtotal			$407,000	$407,000
Addbacks
11	Wife	Proceeds of sale of the V Street, Suburb U property	$277,298	$277,298
12	Wife	Proceeds of sale of Motor Vehicle 1	$13,340	$13,340
Subtotal			$290,638	$290,638
Liabilities
13	Wife	Loan from Mr N	$85,000	Nil
14	Wife	Westpac Visa Card	$5,000	Nil
15	Wife	Company AO	$15,000	Nil
16	Wife	Company AR Visa	$10,000	Nil
17	Wife	Company AP Visa credit card	$15,000	Nil
18	Husband	Virgin credit card ($5000 pre-separation debt)	Nil	$19,956
19	Husband	ANZ credit card	Nil	$20,099
20	Husband	Home loan on AK Street property (50%)	$274,491	$274,491
Subtotal			$404,491	$314,546
Superannuation
21	Husband	Harvey Superannuation Fund SMSF	$520,000	$459,889
Subtotal			$520,000	$459,889