Hunter & Hunter & Anor

FAMILY COURT OF AUSTRALIA

HUNTER & HUNTER AND ANOR

[2015] FamCA 1075

FAMILY LAW – PROPERTY – where the parties were married for twenty-seven years – where the parties engaged in a farming enterprise – equity of exoneration - whether the parties should be exonerated in respect of liability – where the wife asserts her contributions were made more onerous by the presence of domestic violence in the parties’ relationship – Kennon & Kennon – where the husband’s mother made significant financial contributions to the parties’ relationship

Family Law Act 1975 (Cth)

Brandt and Brandt (1997) FLC 92-758
D & D [2005] FamCA 1462 at [271]
Hoffman & Hoffman [2014] FamCAFC 92
Kennon v Kennon (1997) FLC 92-757
Mallet and Mallet (1984) 156 CLR 605
Parsons v McBain (2001) 109 FCR 120
Norbis v Norbis (1986) 161 CLR 513 at 522
Rosati & Rosati (1998) FLC 92-804
Spagnadi & Spagnadi [2003] FamCA 905
Stanford & Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT:

Ms Hunter

FIRST RESPONDENT:

Mr Hunter

SECOND RESPONDENT:

D Pty Ltd

FILE NUMBER:

BRC

10255

2011

DATE DELIVERED:

3 December 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

26, 27, 28, 29, 30 August 2013,
6 November 2013, 4 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Condon Charles Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Lee

SOLICITOR FOR THE FIRST RESPONDENT:

Hartley Healey Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

Ms Wheatley

SOLICITOR FOR THE SECOND RESPONDENT:

Condon Charles Lawyers

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10255 of 2011

Ms Hunter

Applicant

And

Mr Hunter

First Respondent

And

D Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

I commence these Reasons with a sincere apology to the parties for the significant delays in finalising this matter. I assure them that I have had particular regard to the extensive contemporaneous notes I took during the hearing and the transcript of the proceedings. I have revisited these notes, the transcript, the affidavit material, the exhibits, the various reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described.
I record that the Applications for leave to re-open filed by the wife and Second Respondent will be dismissed and that orders will be made to that effect after the parties are afforded an opportunity to be heard in relation to the form of order best suited to give effect to the findings I have made and determinations I have reached as set out in the reasons which follow. Reasons for the refusal of the Applications are set out at the conclusion of these Reasons provided in determining the substantive Applications.

Broad Overview

The husband was born in 1947 and is now 68 years of age. The wife was born in 1956 and is now 59 years of age. They met in late 1983. At that time, the husband was not long separated from his first wife (Ms F Hunter)[1] and their property settlement had not been finalised. This is of relevance in assessing the husband’s initial contribution to the property of the parties in these proceedings.
[1] The husband has two adult children from that relationship.
The parties commenced cohabitation when they married in 1984.[2] They have two daughters: Ms I, born in 1986 and Ms J, born in 1988.
[2]Although the written submissions prepared on the wife’s behalf refer to … 1984, the husband and wife join in their evidence in saying that they married in… 1984.
During their cohabitation, the parties earned income from farming undertaken on real property owned by them (or within a trust structure under their control or by corporate entities under their control) or on land which they share-farmed. No conclusion other than that they both worked extremely hard, often in difficult circumstances, during the entirety of their cohabitation could sensibly be reached.
They separated in September 2011, after approximately 27 years of marriage.
The parties’ voluntary separation has meant that they no longer enjoy the common use of property and superannuation in which their existing legal and equitable interests were acquired during their cohabitation. Such separation has also brought to an end any “assumption that any adjustment to those interests could be effected consensually as needed or desired”[3].
[3] Stanford & Stanford (2012) 247 CLR 108
In these circumstances, I consider it just and equitable that orders altering the interests in property owned by the husband and wife are made. Whilst each of the husband and wife join to advocate that it is just and equitable that orders altering their interests in property are made, they are in conflict as to the terms of the orders which are appropriate to reflect properly those matters which, by s 79(4) of the Family Law Act 1975 (Cth), must be considered.

The competing proposals

The wife submits that it is just and equitable she receive property and superannuation interests with a combined value representing 55 per cent of the total value of the property and superannuation interests of the parties. She advances that, save for an adjustment of 5 per cent to reflect the impost on her contributions of the husband’s alleged domestic violence toward her – acts which she asserts made her contributions more arduous than they would otherwise have been[4] – the parties contributed equally (albeit differently) during their long marriage. If her primary contentions in relation to domestic violence find favour, she does not submit that any further adjustment for relevant s 75(2) considerations is appropriate. If they do not, she seeks a further slight adjustment in her favour.
[4] See: Kennon v Kennon (1997) FLC 92-757 and subsequent authorities
The husband submits that it is just and equitable he receive property and superannuation interests with a combined value representing between 57.5-61 per cent of the total value of the property and superannuation interests of the parties. He does so on the basis that he contends his contributions to trial exceed those made by the wife and that an assessment of the relevant s 75(2) considerations results in a further adjustment in his favour: in essence, he contends that it is just and equitable he receive property and superannuation entitlements totalling between 55 per cent and 57.5 per cent of the nett value of the property of the parties on account of his contributions and that a further 2.5 per cent to 3.5 per cent adjustment is proper upon consideration of the relevant s 75(2) matters.[5]
[5] Depending on the Court’s assessment of capital gains tax consequences.

The parties’ credit

Senior Counsel for the wife submitted that the Court would prefer her evidence and that given by the parties’ daughters to that given by the husband where the two conflict. He further submitted that the husband’s evidence in his own interests should not otherwise be accepted unless corroborated by independent documentary or other evidence.
Counsel for the husband submitted, in essence, that the Court should not accept or prefer the evidence given by the wife generally, particularly given her admitted actions in backdating the share-farming agreement between the Family and Property Trusts, allocating payments made for matters such as obtaining expert evidence to the husband’s beneficiary loan account and, on his case, colluding with their daughters in the decision they made about the Property Trust.
Counsel for the Second Respondent submitted that, where the evidence given by the husband differed from that given by the wife and the parties’ daughters, the evidence of the latter should prevail.
All Counsel urged that various inferences adverse to the cases and evidence of those opposed to their clients should be drawn. Each sought to persuade the Court that the absence of certain persons as witnesses in the case presented by the other/s should result in findings that the evidence of such persons was unlikely to have assisted the party asserted to have the responsibility for calling them.
Given my conclusion that many of the issues in respect of which such evidence may have been called do not require resolution for the determination of the relief sought by each of the parties, I am not persuaded to draw any of the adverse inferences contended for by any Counsel.
I consider that both the husband and wife were quite prepared to tailor their evidence to support their own contentions. I conclude that each was prepared to attempt to rationalise behaviours that may have been intended for their own financial benefit – for example, the husband was equivocal in his denial of a challenge that he was quite prepared to lie for financial advantage, whilst the wife admitted she had backdated the share-farming agreement she relied upon in her case; further, whilst a significant aspect of the wife’s case in relation to her contributions during the marriage rested upon her discharge of the administrative aspects and bookkeeping duties of the farming enterprise, she retreated into an oft repeated refrain that she only entered into the Financial Statements and records of the structures within the Hunter Group what the husband told her to – a contention I do not accept. Such matters persuade me that the evidence given by each of the husband and wife must be carefully assessed, especially where it is uncorroborated by contemporaneous documentary evidence.
To the extent that it is necessary to comment particularly about other evidence, including that given by the parties’ daughters, I will do so when necessary during the course of these Reasons.

An overview of the real property, the corporate entities, the Trusts and the Superannuation Fund

Shortly after they married in 1984, the husband and wife established the Hunter Partnership through which they initially operated their farming enterprise.[6] They established joint bank accounts from which their household expenses and expenses associated with the partnership were met. They agree that the value of any plant and equipment owned by the partnership has been included within the valuation of the Hunter Family Trust (the Family Trust) through which they subsequently operated the farming enterprise.
[6] Affidavit of the Husband 15 August 2013 at [125.1].
Real property owned by the husband and wife personally
The parties acquired “C Property”, a 793 hectare property, personally as joint tenants in March 2002 for $775,000.00.[7] This property, valued by agreement for the purpose of the proceedings at $2,850,000.00, secures their borrowings from the Commonwealth Bank of Australia (CBA) in an amount of $248,000.00 and the borrowings of L Pty Ltd ATF the Hunter Property Trust (the Property Trust) - which currently stand at $324,000.00 - and the guarantees provided by the husband and wife, amongst others, in respect of those borrowings. The manner in which the latter borrowings are to be treated is one of the significant disputes in the proceeding and part of the reason for the Second Respondent’s presence.
[7] Affidavit of the husband filed 15 August 2013 at [172].
The husband lives on “C Property”. It is agreed he should retain his interest in it and that the wife should transfer her interest in it to him as part of the property he will receive in this proceeding.
In June 2013, the husband and wife paid $13,000.00 for a further 25 acres of land adjacent to “C Property”. Whilst they disagree about the value of this land for the purpose of these proceedings, it is not disputed that the husband should also receive this parcel of land as part of whatever entitlement to property is ultimately determined to be just and equitable.
The husband and wife also own K Street, W Town (the W property) personally as joint tenants.[8] It was purchased in or about 1987/1988 for either $135,000.00 (according to the wife)[9] or $155,000.00 (according to the husband).[10] A resolution of this difference is unnecessary. This property is valued, by agreement, for the purposes of these proceedings at $950,000.00. It is unencumbered. The wife lives on this property. It is agreed she will retain her interest in it and that the husband will transfer his interest in it to her as part of the overall property she will receive in this proceeding.
[8] Affidavit of Mr R filed 1 August 2013 at 26/86.
[9] Affidavit of the wife filed 13 August 2013, at [56].
[10] Affidavit of the Husband filed 15 August 2013 at [146].
The corporate entities
The husband and wife are both directors of Hunter Family Holdings Pty Ltd. They each own one of the two shares in this company. It is the corporate trustee for the Family Trust. It is also the corporate trustee for the Hunter Family Superannuation Fund (the Superannuation Fund).
The husband and wife are directors of both E Pty Ltd[11] and G Pty Ltd.[12] They agree that the value of their interest in G Pty Ltd is taken up in the valuation of the shares in E Pty Ltd. Those shares are held within the Family Trust. The wife is also the secretary of E, a role for which she receives remuneration.
[11] The husband and wife are two of the five directors of this company.
[12] The husband and wife are two of the five directors of this company.
The husband and wife are both directors of L Pty Ltd (L) and B Pty Ltd (B).[13] Until February 2012, L was the corporate trustee for the Property Trust, a unit trust. L owns no assets other than as trustee for the Property Trust and it is agreed it has no value. The husband and wife each own 20 shares in B. Previously, it was the entity through which they operated a service[14] provided to, or used by, the farming enterprise operated within the Family Trust. Additionally, it leased machinery and vehicles for this purpose to other entities.[15] B has not traded since about 2003.[16]
[13]        Incorporated in 1997.
[14]        For livestock, grain and produce.
[15]Affidavit of Ms S filed 20 August 2013 at section 9, affidavit of the husband filed 15 August 2013 at page 8.
[16]         Affidavit of Ms S filed 20 August 2013 at section 9.
The Superannuation Fund
In its capacity as trustee for the Superannuation Fund, Hunter Family Holdings Pty Ltd owns real property located at:
a)W property, Queensland[17]: acquired in1988/1989 comprising Lots 2 and 5 (a combined area of approximately 42.75 hectares) with an agreed total value of $1,100,000.00; and
b)O Property,: 407 hectares, acquired in mid-2006, adjacent to “C Property”[18], with an agreed value of $1,450,000.00.
[17]Affidavit of Mr R filed 1 August 2013 at p 7/86.
[18] Affidavit of the husband filed 15 July 2013 at [22]
These properties are leased to the Family Trust and used by it in the conduct of the farming enterprise.
The husband seeks to receive Lot 3 and the wife seeks to receive the property at 2 K Street.
The Family Trust
The Family Trust is a discretionary trust. It was settled in 1991.[19] The husband and wife are both appointors of the Family Trust. The husband, wife, Ms I and Ms J are beneficiaries of the Family Trust.
[19] Affidavit of Ms S filed 20 August 2013, Report at [7.1.1].
The parties operated their farming enterprises – which focussed primarily on grain production - via the Family Trust. The farming activities were undertaken at the real properties in respect of which the parties’ various corporate entities had leases and share-farming agreements. The farming enterprise has operated on property at 1 and 2 K Street, “C Property” and the “O Property” properties[20]. The Family Trust paid rent in respect of its use of any properties not owned by the husband or wife or entities under their control.[21]
[20] Both Lot 3 and the “O Property” Properties through lease and share-farming agreements
[21] Affidavit of Ms S filed 20 August 2013, Report at [7.1.7].
The assets of the Family Trust have been valued by jointly appointed experts. Such assets include plant and equipment and, as recorded in the Financial Statements of both it and the Property Trust, a loan to the Property Trust. The manner in which this asset is to be treated and quantified is the basis of further dispute between the parties: by way of broad summary, the husband contends that the Property Trust should repay to the Family Trust the monies advanced by the Family Trust on its behalf, whilst the wife and Second Respondent join in advancing that this should not occur, either because the funds were never actually advanced (but were simply recorded as entries in the books of account of the two Trusts) and/or because the asserted quantum of the amount asserted to be owing does not accurately portray the position vis a vis the Family and Property Trusts.
It is, I think, relevant to record that, despite this position, the wife adopts, within the value of the Family Trust she advances, the sum of $187,518.00 as representing the quantum of this loan. Whilst it may be said that in accepting this sum the wife should not be taken to accept the appropriateness of the liability or that the Property Trust should be called upon to repay it, there appears to me to be a certain tension in these two positions.
A further asset of the Family Trust is a 41.8 per cent shareholding in E and, consequently, the value of these shares are included in the valuation of the Family Trust.
The Property Trust
The units in the Property Trust were initially owned by the Superannuation Fund.[22] In May 2005 – nearly 6½ years before separation – the husband and wife caused them to be transferred to Ms I and Ms J (then 18 and 16 years of age respectively) for $100.00.[23]
[22] Affidavit of the husband filed 15 July 2013 at [16].
[23] Affidavit of the husband filed 15 July 2013 at [19], DH-02
In late 2005/early 2006, the husband located three adjacent blocks of land: Lot 1 and Lot 2 “O Property” (Lots 1 and 2) and Lot 3 “O Property” (Lot 3). As noted above, Lot 3 was bought by Hunter Family Holdings Pty Ltd as trustee for the Superannuation Fund. It provides access to Lots 1 and 2. Lots 1 and 2 adjoin “C Property”.
As noted, L was the original trustee of the Property Trust. In that capacity it purchased Lots 1 and 2 on 6 January 2006 for $612,000.00. Whilst the funds used for this purchase were borrowed by L from the Commonwealth Bank (the CBA loan), Lots 1 and 2 are not the subject of mortgage. Instead, the CBA loan is guaranteed by the husband[24] and wife[25], B[26] and Hunter Family Holdings Pty Ltd as trustee for the Family Trust.[27] The personal guarantees provided by the husband and wife are secured by mortgage over “C Property”.[28]
[24]         Affidavit of Ms I Hunter filed 13 August 2013 at Annexure SEH-20, p 178
[25]         Affidavit of Ms I Hunter filed 13 August 2013, at Annexure SEH-20, p 191
[26]         Affidavit of Ms I Hunter filed 13 August 2013, at Annexure SEH-20, p 164
[27]         Affidavit of Ms I Hunter filed 13 August 2013, at Annexure SEH-20, p 157
[28]         This mortgage is a separate and distinct liability to Item 23
After the purchase of Lots 1 and 2, the Property Trust and the Family Trust entered into a lease agreement for their use by the Family Trust in the farming enterprise. When the lease agreement expired, the Property Trust and the Family Trust apparently entered into a share-farming agreement under which the Property Trust was entitled to receive 25 per cent of the proceeds of crop grown on Lots 1 and 2 and the Family Trust the balance.

No farming has been undertaken on Lots 1 and 2 after this share-farming agreement expired in 2011.[29]
[29] Affidavit of the wife filed 13 August 2013 at [144].
In 2011, the CBA loan was varied to be an interest only facility.[30] At that time, the balance outstanding was $355,200.00.
[30] Exhibit 23.
The husband and wife were the original appointors of the Property Trust. However, on 9 December 2007, they resigned as appointors and Ms I and Ms J became the appointors of the Property Trust. L remained the trustee of the Property Trust.
This changed when, on 2 February 2012 (approximately five months after their parents separated), Ms I and Ms J exercised their powers of appointment to remove L as trustee of the Property Trust and appoint the Second Respondent in its place.[31]
[31] Affidavit of Ms I Hunter filed 13 August 2013 at Annexure SEH-18.
This decision by Ms I and Ms J resulted in them taking control of the Property Trust: not only are they its appointors, they now control its trustee. As a result, they are the persons able to make the decisions about Lots 1 and 2.
On 9 February 2012, without notice to the husband, the wife arranged for the L bank account, from which the payments for the CBA loan were deducted by direct debit, to be closed. She transferred funds standing in that account to an account in the name of the Second Respondent. The husband was unaware of these actions.
As a consequence of the wife’s actions and the fact that the Second Respondent determined not to take any steps to meet the payments required by the terms of the CBA loan, no payments were made to it for about four months.[32] After correspondence from CBA in respect of the arrears, the husband and wife agreed in June 2012 that the arrears then owing in respect of the CBA loan would be paid by the Family Trust.[33] Consequently, the Family Trust paid $8,416.66 to bring the facility into line.
[32] Affidavit of the husband filed 15 July 2013 at [90].
[33] Affidavit of the husband filed 15 July 2013 at [91].
L remains the registered proprietor of Lots 1 and 2. This is the case because the husband has refused to sign the documents necessary to transfer title to those properties to the Second Respondent in its capacity as trustee for the Property Trust.[34]
[34] Affidavit of Ms I Hunter filed 13 August 2013, at [10].

The property of the parties

The parties have each produced various Balance Sheets. These contain their respective contentions as to the property to be considered in the proceedings and the value to be ascribed to it. As is apparent from the contents of the table below, the husband has contended for different values of various items at different times, including in the submissions and submissions in reply prepared on his behalf.

*Ownership*		*Description*	*Wife’s value* $		*Husband’s value* $
*Property*
1.	Husband and wife as joint tenants	K Street W property (the W property)	950,000.00[35]		950,000.00
2.	Husband and wife as joint tenants (through the Hunter Partnership)	“C Property”	2,850,000.00[36]		2,850,000.00
3.	Husband and wife as joint tenants through the Hunter Partnership)	Extra portion of “C Property” acquired in June 2013	37,000.00		0.00
4.	Husband & Wife (Appointors)	The Hunter Family Trust[37]	2,738,503.00[38]		2,774,918.00[39]
					2,125,127.00[40]
					2,513,538.00[41]
Specifically:
· E Company Pty Ltd shares - 536,403	1,669,372.00		1,669,372.00
· Plant & Equipment at “O Property” & “C Property” properties	849,165.00		795,530.00
· Stock on hand	331,512.00		95,000.00
· Monies due from Property Trust	187,518.00		223,215.00
· Overdraft	(243,293.00)		(301,715.00)
· GST payable	(32,136.00)		(32,136.00)
2,762,138.00		2,449,266.00
5.	Husband and Wife (Directors and as equal shareholders)	Hunter Family Holdings Pty Ltd	0.00		0.00
6.	Husband and Wife as equal shareholders	L Pty Ltd	0.00		0.00
7.	Husband and Wife as equal shareholders	B Pty Ltd	295,565.00[42]		32,179.00[43]
7.	Husband and Wife as equal shareholders	B Pty Ltd	295,565.00[42]		101,857.00[44]
193,659.00[45]
Specifically:
· Tractor and Austek	213,500.00
· Cash	1,757.00
· Loan to Family Trust
· Liabilities	($21,598.00)
8.	Joint	Commonwealth Bank Account #...	500.00		500.00
9.	Wife	Commonwealth Bank Account · #... · #... · #...	56,724.00		56,724.00
10.	Husband	Husband’s personal bank account[46]	7,000.00		7,000.00
11.	Husband and Wife	Furniture and chattels at W property	12,854.00		12,854.00[47]
12.	Husband and Wife	Plant and Equipment at W property	48,540.00		48,540.00
13.	Husband and Wife	Furniture and chattels at “C Property”	3,800.00		3,800.00
14.	Husband and Wife	Dividend distribution to be received from shares in E Company Pty Ltd	250,000.00
15.	Reimbursement due to husband from wife	0.00		1,362.72
16.	Husband and Wife	Grain store on NSW properties
17.	Husband and Wife	Current crop at “C Property” and “O Property” to be harvested
*ADD-BACKS*
18.	Wife	Partial property settlement to the wife		345,000.00	446,940.00
19.	Husband	Partial property settlement to the husband		442,600.00	442,600.00
20.	Husband	Funds withdrawn at separation[48]		0.00	0.00
21.	Insurance proceeds for car alleged by wife to have been retained by husband		36,640.00	0.00
*LIABILITIES*
22.	Husband and Wife	“C Property” loan		(248,000.00)	(248,000.00)
23.	Husband and Wife	CBA loan (for Lots 1 and 2 purchased) - secured by “C Property”		(324,200.00)	0.00
24.	Husband and Wife	Contingent tax liability for 30 June 2013
25.	Wife	Tax liability
26.	Husband	Tax liability
27.	Husband and Wife	CGT and sales costs on property the husband will retain		(988,429.00)
Specifically:
· “C Property”		(536,719.00)
· O Property		(72,146.00)
· Plant & Equipment		(309,886.00)
· B (tax on retained earnings)		(69,678.00)
*SUPERANNUATION*
28.	Hunter Family Superannuation Fund:[49]		$2,398,833.00	$2,398,833.00
(a) Wife’s member account: $1,280,513.00;
(b) Husband’s member account:$1,061,580.00
Total: $2,342,093.00
Assets specifically:
· 2 K Street W property: $1,100,000.00[50]
· Lot 3 “O Property”,: $1,450,000.00
· Cash at Bank: $6,773.00
· Income tax: $1,742.00
· Liabilities: ($212,938.00)
Total: $2,345,572.00
Total
Nett assets including superannuation

[35] Affidavit of Mr R filed 1 August 2013, Report dated 23 April 2012, at page 11.

[36] Affidavit of Mr R filed 1 August 2013, Report dated 26 April 2012, at page 27.

[37]The husband proposes that the loan from B of $95,406.00 is excluded and that the husband and wife’s beneficiary loan accounts totalling $902,201.00 are excluded.

[38] This figure is not the total of the items identified - 23,635,000.00 is unaccounted for.

[39] Affidavit of the husband filed 15 August 2013 at page 7; Written submission of the Wife.

[40] Written Submissions of the Husband, Annexure A, p 151.

[41]Schedule of nett Matrimonial Assets attached to the Submissions filed in Reply by the Husband: I note that this does not equal the total of the items identified – there being $64,272.00 unaccounted for.

[42] valuation prepared by Ms S.

[43] Affidavit of the husband filed 15 August 2013 at page 8.

[44] Written submissions of the Husband, Annexure A, p 153.

[45]Schedule of nett Matrimonial Assets attached to the Submissions filed in reply by the Husband.

[46] sometimes referred to as Commonwealth Bank of Australia.

[47] Adopted value of expert report Affidavit of Mr T filed 30 July 2013 at p 46/60.

[48]Whilst the wife initially contended that the sum of approximately $204,000.00 be notionally added back for the purpose of determining the value of the property of the parties and characterised as property received by the husband, she did not press this during the hearing.

[49]I have deliberately included all of the different figures contended for by the parties at different times to demonstrate the difficulty in attempting to arrive at definitive figures on occasion.

[50] Lot 2: $400,000.00; Lot 5:$ 700,000.00.

Reference to the above makes it clear that the parties are in dispute about a number of matters relevant to the determination of their property and its value. Resolution of these disputes is obviously necessary.
Item 3 – Extra parcel of “C Property” purchased in June 2013
In June 2013, the husband and wife purchased 25 acres of crown land adjacent to “C Property” for approximately $13,000.00.[51] There is no expert evidence before the Court to establish the value of these acres.
[51] Affidavit of the wife filed 18 August 2013 at [118].
The wife proposes that a value of $37,000.00 is accorded to this parcel - a value she has calculated simply by applying the same per hectare valuation to it as has been applied by the valuer who prepared the valuation of “C Property”.[52]
[52] Written submissions of the wife filed 15 October 2013, at p 8
In the absence of expert evidence establishing the same, the husband objects to the figure of $37,000.00 calculated by the wife. He asserts that she deliberately refrained from having this land valued by an expert and should not be permitted to proffer a lay opinion in relation to its value.
The Order made 17 June 2013 (by which the parties agreed to buy the additional land) provided that, if a party contended for an updated land valuation to be prepared and the other party did not agree to the same, the contending party had liberty to apply before 7 July 2013 to seek that an updated valuation be prepared. The husband advances that, as he did not agree to an updated valuation (being content to rely on the earlier valuation – prepared at a time before the acquisition of this land) the wife could have approached the Court for the same but, as she did not, the parties are left with an absence of expert opinion to establish its value.
In the absence of expert evidence establishing the value of this separate 25 acre parcel, I am not prepared to simply accord to it a value arrived at by applying the same value per hectare as was applied to the “C Property”. The fact that the parcel is adjacent to “C Property” does not of itself establish that its value per hectare is the same as that accorded to “C Property”. However, I am also not prepared to proceed to effectively ignore the existence of the land and, by doing so, accord the husband the benefit of property which he (and the wife jointly) determined to have a worth of $13,000.00 to them.
For these reasons, and doing the best that I can on the evidence before me, I intend to value the acres acquired in 2013 at a value equivalent to the price the parties paid for it: namely, $13,000.00.
Item 8 – B
The wife proposes that the Court adopt the valuation prepared by Ms S.[53] Ms S included the (accepted) loan payable by the Family Trust to B in the (accepted) amount of $95,406.00 within the assets of B and used a valuation of plant and equipment (prepared by Mr T in April 2012) as part of the factual basis from which she concluded that the value of the nett assets[54] of B are $295,565.00.
[53] The single expert valuer appointed by the parties.
[54] Which consist primarily of plant and equipment and a loan to the Family Trust.
The husband does not contest the methodology employed by Ms S. He simply proposes that the value outlined in her report should be adjusted by:
a)replacing the adjusted valuation of $220,00.00 used by Ms S for plant and equipment with the figure of $213,500.00, being the value obtained from an updated valuation of plant and equipment prepared by Mr T in about August 2013; and
b)excluding the inter-entity loan from the Family Trust on the basis that this approach is consistent with that otherwise adopted by him and the wife in excluding the amounts recorded in the beneficiary loan accounts of the Family Trust for the purpose of valuing it.
If the husband’s approach is adopted, B will be accorded a value of $193,659.00.
The wife opposes the course proposed by the husband on the basis that it is unacceptable to permit him to ‘cherry-pick’: she asserts that, having engaged a single expert witness to value the entities, a ‘line in the sand’ has been drawn and, unless the parties agree otherwise, they have to accept the contents of that person’s report.
Having taken into account the basis of the wife’s opposition, I prefer the approach advanced on behalf of the husband.
Insofar as the value of the plant and equipment is concerned, I do so because I consider that, in circumstances where Ms S simply adopted the expert evidence given by Mr T in valuing the plant and equipment in 2012, there is no rational basis for refusing to update the valuation arrived at via such process by using more recent expert opinion, representing the more recent and, therefore, better evidence of the value of the plant and equipment – especially where it is proffered by the same person who had previously valued the plant and equipment. In arriving at her valuation using Mr T’s earlier opinion, Ms S simply adopted it and used it in her calculations; if asked to update her opinion on the basis of Mr T’s more recent valuation, there is no logical reason to think she would have done anything other than follow the same process. In such a circumstance, there is no reason why, in arriving at the finding of fact which is the value of B, the Court cannot simply adopt that process also.
I prefer the approach to the inter-entity loans suggested by the husband. I do so because it is consistent with the manner in which the husband and wife have (sensibly) determined to take up the contents of Ms S’s valuation of the Family Trust: that is, to ignore the amounts, which she includes in her valuation, recorded in their beneficiary loan accounts (and those of their daughters). As long as the loan payable from the Family Trust to B is not included as a liability for the purpose of determining its value, the overall position for these entities within the control of the husband and wife will be the same.
Item 15 – Dividend distribution to be received from shares in E Pty Ltd
As noted, the Family Trust owns 41.8 per cent of E. E has historically declared a dividend in favour of its shareholders. The husband’s case involved the assertion that the wife, who is one of the five directors of the company, previously resisted his attempts to move E to declare a dividend for the FY2013. I accept the tenor of the submission made by Senior Counsel for the wife to the effect that the evidence before the Court does not permit of a finding that she could bend the remaining directors to her will so as to influence whether a dividend would be declared and when and, if so, the amount in which it would be declared.
The last dividend declared by E was for the FY2011/2012. This was paid in December 2012. Despite the fact that no dividend has been declared since then, the husband initially sought to have the (as yet undeclared) dividend quantified in a notional amount of $250,000.00 and included notionally in the property of the parties for the purpose of these proceedings: he appeared to advance this figure on the basis that the average dividend declared since 2006 was $214,569.00 per annum.[55]
[55] Affidavit of the husband filed 15 August 2013 at [26-33].
Senior Counsel for the wife submitted that the evidence does not enable the Court to determine the quantum of any dividend payable by E. I accept that submission as, ultimately, did Counsel for the Husband who contended that, instead of proceeding with the course initially proposed, the more appropriate course was to fashion orders which would see the husband and wife share in any dividends declared – or due to be declared – for any periods until the transfer of E shares to the wife (or an entity of her choosing) in the ratio determined by the overall assessment of their entitlements.
As I am not, in any event, persuaded that the circumstances here are such as to persuade of the inclusion of a notional amount for a yet to be declared dividend for the purpose of determining the nett value of the property of the husband and the wife, this approach seems eminently sensible.
I also record the appropriate concession made by Senior Counsel for the wife that she conceded that the husband is entitled to ‘his share’ of undeclared dividends emanating from E. I consider that this entitlement extends to the dividends declared or to be declared for the period to at least 31 December 2015, or the time at which the shares are transferred from the Family Trust to the wife (or an entity she nominates), and that there is no proper basis for limiting the husband’s receipt of ‘his share’ of dividends to 30 June 2013.
Any argument that the husband’s entitlement to share appropriately in dividends declared or to be declared in relation to years after 30 June 2013 has ended because the wife is the party more involved in the operation of E business is easily met by noting that she receives a payment for her role as secretary of that company.
In the circumstances, and subject to affording the parties the opportunity to be heard in relation to the form of the order most appropriate to give effect to this conclusion, the appropriate course may well be to provide that the husband and wife do all things within their respective power and/or control to seek that all and any outstanding dividends be declared and paid to the Family Trust to be distributed to the parties in the ratio determined by the overall assessment of their entitlements.
Item 16 – reimbursement to the husband from the wife
It is accepted that, on 4 October 2011, the wife used the husband’s credit card to pay $1,362.72 for legal services she received. Whilst it may well be that such amount is de minimis given the overall value of the property of the parties, that fact alone does not render inapplicable the well-known principles arising from authority such as Chorn & Hopkins[56] and Omacini[57].
[56] (2004) FLC 93-204.
[57] (2005) FLC 93-218.
Accordingly, I consider the amount of $1,362.72 should be included notionally in the value of the property of the parties and attributed to the wife as property already received by her.
Item 17 – the grain stores currently held at New South Wales properties
While the submissions prepared on behalf of the wife refer to the value of the grain (if any) stored at “C Property” and “O Property”, there is no expert evidence in relation to this issue before the Court other than that Ms S allocated $95,000.00 for stock on hand in her valuation of the Family Trust. Further, the wife appears to have taken up the husband’s evidence of the value of ‘grain on hand’ at $331,512.00 from his August 2013 affidavit and included this amount in the valuation of the Family Trust she contended for. For this reason, it seems to me to be more appropriate to consider the value able, on the evidence, to be attributed to grain stores at any point in time during a consideration of the value of the Family Trust.
Item 18 – crop at “C Property” and “O Property” to be harvested

There is no expert evidence before the Court to establish the likely value of any crop. Whilst Senior Counsel for the wife submitted that it would be most appropriate to order a division of the proceeds of sale of the crops then in the ground at the parties’ properties in the proportion of the ultimate determination of their property settlement, the time that has elapsed since judgment was reserved suggests that it is much more likely than not that more than one crop has been planted and harvested.
As for the issue of the value of the grain stores, it seems to me to be more appropriate to consider the issue of the valuation of crops grown in the course of the operation of a farming enterprise during a discussion of the value to be attributed to the vehicle through which that farming operation has been (at least substantially) operated – namely, the Family Trust.
Item 4 – the value of the Hunter Family Trust
According to the Balance Sheet attached to the written submissions prepared on behalf of the wife, the husband and wife were only $36,415.00 apart in the value each contended should be attributed to the Family Trust: that is, the wife contended for a value of $2,738,503.00 and the husband contended for a value of $2,774,918.00. This difference was explained by Senior Counsel for the wife as arising from the difference in the value each party (the husband and wife) attributed to the loan owing to the Family Trust by the Property Trust.
Unfortunately, as is so often the case, the longer the trial went, the greater the differences became: that which was described as ‘agreed’, appeared, on closer investigation, to be only agreed to be disputed.
Whilst the value contended for by or on behalf of the husband underwent a number of transformations during the hearing and, even, during the submission taking process, the husband’s ultimate position was that the Family Trust should be accorded a value of $2,513,538.00: that is, a value about $224,965.00 less than that contended for by the wife.
In determining the value to be accorded to the Family Trust, it is, I think, useful to ascertain the basis upon which each party (the husband and wife) contended for the values they did. To some extent, each Counsel relied upon or advanced that they relied upon, or adopted, or took up the valuation prepared by Ms S. As already alluded to in passing, in valuing the Family Trust, Ms S included the parties’ beneficiary loan accounts: according to her, the Family Trust is valued at $1,508,223.00. Even when these accounts are excluded – as the parties are agreed they should be - Ms S’s value is $2,509,540.00: a value adopted by neither party.
Ms S’s report, prepared on the basis of the figures as at 30 June 2012, included an allowance of $95,000.00 for ‘stock on hand’ and a figure of ($301,715.00) for the overdraft.
The husband’s 15 August 2013 affidavit contains his assertion that the Family Trust had a value of $2,774,918.00. In arriving at that value, he outlined that the following assets had the following value:
a)grain on hand - $331,512.00;
b)shares in E Pty Ltd - $1,669,372.00;
c)plant and equipment at “O Property” and “C Property” - $795,530.00;
d)loan from the Property Trust - $223,933.00;
e)(approx.) overdraft – ($243,293.00);
f)GST payable – ($32,136.00).
Unfortunately, the total of those items is $2,744,918.00 and not $2,774,918.00. Whilst there may well be some explanation other than error in addition or transcription for this $30,000.00 difference, it is not immediately apparent to me. I suspect that this error – if it is that – has been carried through the documents during the course of the proceedings: for example, in the Balance Sheet attached to the submissions prepared on behalf of the wife.[58]
[58] Note 1 in particular.
An analysis of the documents suggest that the genesis of the figure adopted by the wife lies, in part, in her acceptance of the values suggested within the husband’s August 2013 affidavit. Despite the criticism of the husband’s approach to the valuation of B, the wife appears to have accepted the husband’s contention about the value of grain on hand and the extent of the overdraft and adapted Ms S’s figures accordingly. In doing so she retained the value of the plant and equipment used by Ms S.
In contrast, the husband proposes a return to Ms S’s figures, at least in some respects: for example, he proposes to adopt her value for the overdraft ($301,715.00) and the stock on hand ($95,000.00) but adapts her figures to include the updated valuation of plant and equipment on Lot 3 and “C Property” in an amount of $795,530.00 (rather than the $849,165.00 adopted by Ms S and taken up by the wife).
Reference to the Balance Sheets (or Schedules) ultimately contended for by the husband and wife reveals that their difference in the contended for values for the Family Trust arise from following:
a)stock on hand: wife = $331,512.00 whereas husband = $95,000.00;
b)overdraft: wife = ($243,293.00) whereas husband = ($301,715.00);
c)monies owing by Property Trust: wife = $187,518.00 whereas husband = $223,215.00 and increasing over time by virtue of the monthly interest repayments made since the Schedule was prepared in early November 2013;
d)plant and equipment: wife = $849,165.00 whereas husband = $795,530.00.
The difficulty in dealing with the stock on hand and the overdraft in an enterprise such as the present is obvious: the values of the same will change seasonally as product is harvested, sold and applied to the reduction of debt, which will increase as it is drawn upon to provide a source of funds whilst the next crop grows toward harvest. The difference in the figures proposed by each party as set out above makes that starkly clear.
Accepting this is the reality of the business in which the parties have engaged, I am persuaded that the most appropriate course is to adopt those figures provided by the husband – the person engaged in the day to day farming – as the most recent evidence of stock on hand. I also consider the most up-to-date figure for the overdraft as the appropriate figure to take into account. As there is no evidence about the value of the crop which was to be harvested at some time after the hearing, it is impossible to include a figure for it in the determination of the nett value of the property of the parties: I can only assume that its nett proceeds and the nett proceeds of the crops grown and harvested since the hearing have been deposited into the bank accounts of the Family Trust and applied by agreement between the husband and the wife.
As I have done in determining the value of B and for the same reasons, I find the value of plant and equipment to be as advanced by the husband.
The resolution of the difference in the husband and wife’s position in relation to the monies owing by the Property Trust to the Family Trust will be considered later during my assessment of the husband’s claim against the Second Respondent.

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Item 19 - Partial property settlement

The husband and wife agree that the husband has already received the benefit of $442,600.00 by way of partial property distributions. They disagree, however, about the extent of the property received by the wife by way of partial property distributions: the wife contends that the figure of $345,000.00 should be used whereas the husband contends that the undisputed $446,940.00 received by her should all be notionally added back in the same way as the entirety of funds received by him has been.
That is, the difference in the figure to be notionally added back to form part of the nett value of the property of the parties and accounted for as having been received by the wife arises out of different approaches to the characterisation of some of these funds.
The wife contends that $101,941.00 of the funds she has received should not be notionally added back as part of the determination of the value of the property of the parties and accorded to her as property received by her because:
a)$61,941.00 of this was received by her by way of a Transition to Retirement payment in June 2012; and
b)$40,000.00 of this was not agreed by her at the time of its receipt to be received by her as a partial property settlement but was instead regarded by her as maintenance.
The Transition to Retirement payment
Consent Orders made 19 June 2012 reflect an agreement between the husband and the wife that each receive $57,600.00.[59] The relevant terms are as follows:
(3) That the Husband sign such documents and do all things necessary to enable the Wife to receive her Transition to Retirement superannuation payment of $57,600.00 prior to 30 June 2012.
(4) That the Husband and Wife shall do such things as shall be necessary to cause the sum of $57,600.00 to be paid to the Husband by way of partial property settlement, such sum to be drawn from the CBA bank account in the name of [Hunter] Holdings Pty Ltd.
[59] Clause 4.
The wife contends that, as the money she received was released to her pursuant to a Transition to Retirement payment, it differs in character from that paid to the husband (which was identified in the Order as having been paid by way of partial property settlement) and, consequently, should not be notionally added back.[60]
[60] Affidavit of the wife filed 13 August 2013 at [99(iii)].
I prefer the evidence given by the husband in relation to this issue, especially given the contents of Exhibit 13, the wife’s Superannuation Fund Member Statement for the year 30 June 2012, which recorded a gross pension payment of $64,846.00.
I accept the submissions made by Counsel for the husband[61] to the effect that:
a)the source from which the payment received by the wife was drawn existed at separation, is one to which both the husband and wife had contributed during their lengthy marriage, is one in and to which each of them can be seen as having an interest on account of their respective contributions to it and is one which would have had a greater value but for the wife’s draw upon it; and
b)both parties had used the funds received by them after separation from assets acquired prior to separation to meet living expenses and pay legal costs; and
c)absent adopting the course proposed by the husband, the diminution in the value of the property of the parties resulting from the wife’s draw upon such funds would be unaccounted for; and
d)save for the phraseology used in the June 2012 Order, the wife has failed to establish a proper basis for any differentiation in the characterisation of funds received by each of the parties - particularly given that, during the relationship, the husband accessed significant funds by way of Transition to Retirement pension payments[62] and applied them to the support of both of the parties.
[61] Citing Omacini& Omacini (2005) FLC 93-218; Chorn & Hopkins (2004) FLC 93-204
[62]$396,680.00 drawn by him tax – free between 30 June 2008 and July 2011 from the Superannuation Fund
The characterisation of the payment in the manner prescribed in the June 2012 Order does not change the fact that the source of the funds upon which the wife drew to obtain the funds received by her by way of Transition to Retirement pension payment was something to which both of the parties contributed during the course of their lengthy marriage.
I consider that the wife has not established those matters necessary for this payment to be characterised as having been received by her by way of maintenance. I consider that there is no real distinction in the funds received by each of the parties after separation and applied by each of them.
Taking these matters into account, I am persuaded that the funds received by the wife should be added back notionally to form part of the nett value of the property of the parties and accounted for as property already received by her.
Funds paid by cheques
In June 2013, the husband forwarded to the wife a cheque for the sum of $40,000.00. Counsel for the husband submitted that the process by which the wife received this payment was the same as that utilised by the parties previously to give effect to their joint intention that each receive money by way of partial property settlement: that is, they counter-signed cheques payable to each other. I accept this is the case.
The wife conceded during cross-examination that she had not said at the time she received these monies that she intended they be characterised as maintenance payments. She did nothing, it seems, to bring that intention to the husband’s notice; she did nothing to alert him to the fact that, unlike the other monies agreed to be received as and by way of partial property settlement, she sought that this money be regarded as maintenance.
The source of the $40,000.00 received by the wife was a fund which existed at the date of separation, was contributed to by the parties during their lengthy relationship and is something in respect of which each had an interest by virtue of those contributions. In such circumstances, I consider it appropriate and just and equitable that the funds received by the wife be notionally added to the nett value of the property of the parties and accounted for as having been received by her.
Item 22 – insurance proceeds for wife’s motor vehicle accident
On 23 October 2012, when driving a vehicle owned by Hunter Family Holdings Pty Ltd, the wife was involved in a car accident. An insurance claim arising out of this event resulted in $36,640.00 being paid into a joint account.[63] The wife contends that this amount should be notionally included in the value of the property of the parties. The husband opposes this course on the basis that to do so would result in a double-counting of this money because it has been incorporated within the valuation of the Family Trust.
[63] Affidavit of the wife filed 13 August 2013 at [109-112].
I accept the submissions made by Counsel for the husband in relation to this item. I consider that to notionally add back the funds received as a consequence of the insurance claim would potentially result in double-counting of the same when the assets they have been used to acquire have already been valued as part of the valuation of the Family Trust or may have been applied in meeting expenses incurred by it.
Sensibly, in order to avoid double-counting, the parties adopted this course in dealing with the car in the wife’s possession: that is, they have not included both the value of the car and the funds received by way of interim property distribution used to acquire it, but have confined themselves to including only the funds received by way of interim distribution.
Item 28 – Notional Capital Gains Tax, realisation costs and tax on retained earnings
Property other than E shares
As noted by Counsel for the husband, the report prepared by Ms S provides clear evidence of the capital gains tax and expenses which will be incurred on the sale of property - namely, that:
a)there will be capital gains tax, sale costs and tax on retained earnings totalling about $988,429.00 associated with assets (being “C Property”, Lot 3, plant and equipment owned by B and the Family Trust and B) the husband seeks to retain; and
b)there will be capital gains tax, sale costs and tax on retained earnings totalling about $402,891.00 associated with assets (being E shares, W property and W property blocks in the Superannuation Fund) that the wife seeks to retain; and
c)if all of the assets referred to were sold, an amount of about $1,400,000.00[64] would be payable by way of capital gains tax, sale costs and tax on retained earnings.
[64]Rounding to take into account that the values (for example, for plant and equipment)used by Ms S to calculate the costs associated with sale have been found to be different.
Counsel for the husband relied upon the well - known authority of Rosati & Rosati[65] in advancing the argument that these costs (broadly described) should be taken into account as a liability during the quantification of the value of the parties’ property. He submitted that to fail to do so would be unjust and inequitable to the husband because the assets he seeks to retain are heavily ‘impregnated’ with tax and, by virtue of this, he will be left to bear the impost of this alone and without, in effect, ‘contribution’ from the wife.
[65] (1998) FLC 92 – 804.
Counsel for the husband submitted that the Court would be persuaded that:
a)the parties’ assets (encompassing farming properties and plant and equipment) were acquired by them as investments with a view to ultimate sale for profit; and
b)the sale of the same is an inevitable consequence of the farming enterprise conducted on them - particularly given the husband’s evidence that, given his age and health issues, he intended to retire in two to five years; and
c)there is a significant risk the husband will sell the farming properties in the short to medium term, with the consequence that the significant associated costs will be crystallised; and
d)as the sale of the parties’ property is an inevitable consequence, the cost consequences (broadly described) associated with this must be taken into account.
Counsel for the husband also submitted that, if the Court did not accept the force of his primary submission that the cost consequences (broadly described) should be regarded as a liability during the quantification of the nett value of the parties’ property, a “significant” adjustment should be made during the consideration of the s 75(2) matters to recognise properly that the husband will retain or receive property in respect of which costs associated with, or arising from, sale have been calculated to be about $988,429.00.
In contrast, Senior Counsel for the wife submitted that such liabilities need not be taken into account in assessing the nett value of the property of the parties because:
a)neither the husband nor the wife proposed the sale of any property; and
b)all of the parties’ assets are imbued with capital gains tax and, as such, both parties will carry the impost of that in the property that each receives; and
c)if these costs (broadly described) associated with disposition of property are to be taken into account, the proper manner by which this should occur is during the consideration of the s 75(2) matters: he submitted it was not appropriate to make allowance for such costs on what would effectively be a dollar for dollar basis.
I have struggled to arrive at a conclusion about the most appropriate way in which to account for the significant costs. Many of the matters outlined in Rosati are, potentially at least, established in this case. However, given that the husband did not propose at trial to sell any of the properties and envisaged retaining them for at least two to five years, that there is no direct evidence of an intention other than this, that he has a long history working as a farmer and the possibility he could share-farm or lease the property he retains, I have concluded that the most appropriate way to take these costs into account is to consider them during my consideration of the relevant s 75(2) matters. In that way, I will not crystallise amounts given the uncertainties about underlying values of items such as plant and equipment (as has been amply demonstrated by the changes of valuations proposed for such items during the course of the hearing) but will be able to give proper recognition to the same, especially given their quantum.
E shares
Counsel for the husband submitted that the Court would not include the costs associated with the transfer of E shares to the wife as a liability during the quantification of the value of the nett property of the parties because:
a)as the wife seeks to transfer those shares to an entity she nominates[66] – rather than receive them personally (which would entitle her to CGT roll-over relief) – she should be responsible for the costs associated with the same; and
b)the husband should not be called upon indirectly to offset the wife’s tax minimisation planning decisions: in essence, his positon is that if the wife wants to take advantage of the proceedings to arrange her affairs in a way that advantages her from a tax minimisation perspective and such decision increases the costs associated with the disposition of the shares to her, she alone should bear the same.
[66]Which will mean that the stamp duty concession is not available

I accept the submission made by Counsel for the husband that it is appropriate for the reasons outlined immediately above that, in the event that the wife determines to have E shares transferred to an entity rather than receive them personally, she should bear the costs associated with such transfer and they should not be included as a liability for the purpose of determining the nett value of the property of the parties.

The claims against the Second Respondent

The husband seeks that the Second Respondent:
a)exonerate him and the Family Trust from the liability each has pursuant to guarantees given to CBA when the funds used to purchase Lots 1 and 2 were obtained; and
b)pay liquidated sums to the Family Trust, being:
i.the debt recorded in the Financial Statements of the Family Trust and the Property Trust as one owing by the Property Trust to the Family Trust; and
ii.an amount representing the total of interest payments made by the Family Trust since June 2012 to CBA in relation to the funds borrowed to purchase Lots 1 and 2.
The wife advances that, for the purpose of ascertaining the nett value of the property of the parties in the proceedings, the debt between the Trusts should be ignored. She resists an order requiring the Property Trust pay the identified amount to the Family Trust – on the basis that she contends it is ‘just a ‘paper’ loan’ - although she does so whilst including $187,518.00 in respect of this loan within the value of the Family Trust. She contends that she and the husband should remain responsible for the outstanding indebtedness to CBA arising from the purchase of Lots 1 and 2 and, consistent with this approach, asserts that the Second Respondent should not be liable to repay the Family Trust any monies representing the payment of interest payments made by the Family Trust in respect of the CBA loan. Her position is, therefore, that the Second Respondent should take Lots 1 and 2 free of any debt.
The Second Respondent advances that the Court should conclude that neither the husband nor the wife intended that their children or the Second Respondent be responsible for the CBA loan and, consistent with this position, it opposes any order which would have the effect that it assumes the outstanding CBA loan liability or which would see it pay any funds to the Family Trust at all. Included within the arguments advanced in support of this position are that:
a)the husband and wife always intended that Ms J and Ms I should have the benefit of Lots 1 and 2 free of encumbrance and, consequently, effect should be given to this intention; and
b)the Court would conclude that the amount payable shown in the Financial Statements of both Trusts does not accurately reflect the financial relationship between those Trusts because, amongst other things, the Family Trust failed to account to the Property Trust for grain grown on Lots 1 and 2 pursuant to the share-farming agreement between.
The Second Respondent also seeks orders which would see the husband and wife be solely responsible for, and indemnify it (and other named entities) in respect of the CBA loan and that the Deed of Guarantee they provided is discharged upon the payment of the CBA loan.
Summary of events and relevant matters
Between June 2005 and January 2006, L Pty Ltd ATF the Property Trust bought Lots 1 and 2 for $612,000.00 with funds borrowed from CBA (the CBA loan). Lots 1 and 2 are not encumbered by mortgage and there is no possibility that any claim can be made directly by CBA against the Property Trust or assets held within it if the repayment obligations imposed by the terms of the CBA loan are not met.
Each of the husband, wife, Hunter Family Holdings Pty Ltd ATF the Family Trust and B Pty Ltd provided guarantees in relation to the borrowings used in the purchase of Lots 1 and 2.
The guarantee provided by the husband was said to initially apply to the credit contract resulting from the acceptance by L of the offer dated 13 December 2005 for credit of $612,000.00. It also accommodated the possibility of variations to the loan agreement to which it related.
In agreeing to provide the funds used for the purchase of Lots 1 and 2, CBA required additional security to be given to further secure the guarantees. Included within these securities is the mortgage already held by CBA over “C Property”: that mortgage having been provided by the husband and wife in 2002 to secure their borrowings (which were applied toward the purchase of “C Property”).
The terms of the mortgage held by CBA are such that, in the event there is any default in respect of the repayment of the CBA loan, the husband, wife and Family Trust may be called upon to remedy this default.
In 2011, the loan agreement between CBA and L was varied such that it became an interest only facility (rather than the interest and principal facility previously in place); interest became payable on a monthly basis rather than annually as had previously been the case.
On 2 February 2012, Ms I and Ms J exercised their power as Appointors of the Property Trust to remove L as trustee for the Property Trust and to appoint the Second Respondent in its place.
On 9 February 2012, a CBA bank account of L – the operating account for the Property Trust and the account from which the loan repayments for the CBA loan were paid by direct debit – was closed at the wife’s direction. The balance of that account – in the sum of $5,298.77 – was withdrawn and paid to the Second Respondent.
I accept that the husband did not know about the transfer of funds or closure of this account at the time these events occurred. I accept he also did not know that L had been removed by his daughters as the trustee of the Property Trust and replaced by the Second Respondent. I accept that the husband was shocked when he learned of these events. It follows that I conclude that neither Ms I nor Ms J told him of their actions to act as they did.
I also accept that, when he transferred the units in the Property Trust to his daughters in May 2005 and signed the documents needed to appoint them Appointors of the same in December 2007, the husband did not anticipate they would, in the future, exercise their power as Appointors to remove the corporate trustee he and the wife controlled and replace it with an entity under their control. I accept that the husband’s intention in establishing the Property Trust was that, as long as he sought to do so, the Family Trust would share-farm Lots 1 and 2 with the Property Trust and his daughters would benefit after his death.
The actions of 2 February 2012 mean that Ms I and Ms J controlled the corporate trustee of the Property Trust, were its Appointors and owned all of the units in it.
The closure of the L Pty Ltd CBA bank account on 9 February 2012 had the consequence that the monthly interest payment due to be made in respect of the CBA loan was not made for a period of four months. The Second Respondent did not make any arrangements to have the CBA loan account transferred to its name nor did it make any payment.
After a period of time, CBA threatened the husband and wife that it would accelerate not only that due pursuant to the CBA loan but the entire amount of the Hunter Group debt facilities.
Following this, the husband and wife reached an interim agreement to deal with this problem: they agreed that the arrears of interest ($8,416.66) would be paid by the Family Trust and signed an authority permitting the monthly interest payments for the CBA loan to be drawn from the Family Trust account. Given that the CBA loan is secured against “C Property”, this accommodation is unsurprising.
Consequently, since 1 July 2012, the CBA loan payment has been made each month by the Family Trust.
By correspondence dated 1 August 2012, the husband’s solicitors wrote to the Second Respondent’s then solicitors proposing that the interest payments for the CBA loan paid by the Family Trust be regarded as a loan repayable on demand. The Second Respondent was also asked to advise of its intention in relation to the repayment of the CBA loan. It is accepted that the Second Respondent did not commit to assuming the CBA loan. It is also uncontentious that the Second Respondent has taken no steps to assume responsibility for the CBA loan. It is clear it has no intention of doing so.
The situation is thus: L remains the borrower in relation to the CBA loan (used to purchase Lots 1 and 2) and the registered proprietor of Lots 1 and 2 but it is no longer the trustee of the Property Trust. The Second Respondent – which is now the trustee of the Property Trust – has not assumed responsibility for the outstanding monies, constituting the CBA loan, used to acquire the Property Trust properties. Rather, it asserts that, as it is not a party to the loan agreement (that being between L Pty Ltd ATF the Property Trust and CBA) and Lots 1 and 2 are not the subject of mortgage, it is not liable to repay the CBA loan.
By later correspondence the Second Respondent indicated, amongst other things, that it had been attempting to sell Lots 1 and 2. In about February/March 2012, Lots 1 and 2 were listed for sale with a real estate agent. On about 14 June 2013, the Second Respondent received an offer of $1,464,652.00 for them from the owners of neighbouring property.
I have little doubt that the Second Respondent may well have proceeded with the sale but for the fact that L remained (and remains) the registered proprietor of Lots 1 and 2. Whilst the husband subsequently advised the Second Respondent he was agreeable to the sale of Lots 1 and 2, his agreement required that the sale proceeds be used to discharge the CBA loan and the debt he says is due by the Property Trust to the Family Trust arising from the Family Trust’s payment of the CBA loan after 2 February 2012 (which the husband says is recorded in the Financial Statements of both the Family Trust and the Property Trust and encompasses the $8,416.66 interest paid by the Family Trust): matters in respect of which the Second Respondent did not agree.
I agree that the Second Respondent’s attempt to sell Lots 1 and 2 in the absence of a clearly conveyed willingness to assume the liability for the CBA loan represents a clear risk that the Property Trust will retain the proceeds of sale for itself entirely, leaving L to discharge the CBA loan – given that it does not own any property, the reality is the CBA will call upon the guarantees provided by the parties (as outlined above) and the security provided by “C Property”.
If the husband and wife and or the Family Trust do not continue to make the payments due under the CBA loan and the Second Respondent maintains its positon of not assuming responsibility for the loan, CBA will have a remedy against L or the husband and wife via the mortgage over “C Property”.
If action is taken by CBA under its mortgage or pursuant to the guarantees, the husband and wife will bear the cost of meeting the outstanding liability of $324,000.00 in circumstances where their daughters – as controllers of the Property Trust in which only they own units – will obtain the benefit of Lots 1 and 2 (in respect of which an offer to purchase for nearly $1,500,000.00 has been made) without the impost of the liability incurred (in a broad sense) by their parents.
It is against this background that the husband submits that equity will intervene to recognise a right of exoneration against the Second Respondent. The applicable principles are contained within the extensive written submissions prepared by Counsel for the husband, which I accept as accurately stating the law to be applied.
Summarised broadly, the husband’s contention is that, having taken the benefit of Lots 1 and 2, the Second Respondent ought properly take the burden of the liability associated with the same: namely, the balance outstanding in relation to the CBA loan and the interest payments made in relation to these borrowings. [67] On this basis, he says, he and the wife and the trustee of the Family Trust should be exonerated in relation to the personal guarantee he provided and that provided by the Family Trust to secure the CBA loan.
[67]See the discussion of the equity of equity of exoneration by the Full Court of the Federal Court in Parsons v McBain (2001) 109 FCR 120.
In asserting to the contrary, the wife contends that Lots 1 and 2 were always intended to be a gift to Ms J and Ms I. She asserts that the manner in which the purchase of these properties took place, the fact that no mortgage was given in respect of them to secure the CBA loan, the steps the parties implemented in establishing the Property Trust and the decisions they made after that associated with it and its control all corroborate this assertion.
In complete contrast, the husband does not accept that it was always the intention to gift the properties to his daughters free of encumbrance. He says, and I accept, that Lots 1 and 2 were purchased because he and the wife were looking for additional property to farm, that he intended his daughters to take benefit from these properties only on his death and that the purchase of the same was structured as it was to avoid a claim being made by his children from his first marriage against this property. Some support for the latter assertion can, I think, be found in the contents of written advice provided to the husband and wife in 2007 to the effect that “[the husband and wife] are concerned about whether [the husband’s children from a previous relationship] could as a result potentially make a claim against your estate”.
I am not persuaded that the husband and wife intended to gift Lots 1 and 2 to Ms I and Ms J free of debt during their lifetimes: further, I do not accept that there is any or any sufficient evidence of a joint intention on their part to this effect. I am not persuaded the content of Ms I’s diary is evidence of an intention that she (and her sister) would receive the property debt and encumbrance free.
In fact, I consider that that the husband – a person who acted as he did when he provided the $30,000.00 spoken of in the material to the wife during the currency of his proceedings with Ms F Hunter – is highly unlikely to have ever even contemplated such a generous and magnanimous act. The idea that he would have intended to give Ms I and Ms J Lots 1 and 2 and kept for himself (as, I suspect he would see it) the burden of the debt without the opportunity to use the land itself unless they agreed beggars belief. I am confident that the thought that he would ever find himself in the position that has unfolded in relation to Lots 1 and 2 would never have crossed his mind. I consider it more likely than not that his intention was that he and the wife, via their farming enterprise conducted through the Family Trust, would farm Lots 1 and 2 and apply the proceeds of their enterprise to discharging the CBA loan. I am not persuaded that he ever intended to be left to service the CBA loan without the benefit of access to monies earned by and obtained from growing crops on the land in respect of which that loan arose.
I also consider there is force in the submissions made by Counsel for the husband to the effect that, if Ms J and Ms I and their parents all thought that the husband’s and wife’s intention was always that they take Lots 1 and 2 free of debt and encumbrance, there would have been no reason for the removal of L as trustee and the appointment of the Second Respondent in its place to have occurred as it did and without the husband’s knowledge.
I consider that the advice given to the husband and wife at the time they determined to appoint Ms I and Ms J as appointors of the Property Trust – to the effect that they would be able to replace L as trustee of the Property Trust – was given in the context of them receiving advice about estate planning and, therefore, that their decision to make that appointment is not indicative of an intention to ensure that Ms J and Ms I received Lots 1 and 2 encumbrance free. In fact, for all intents and purposes, nothing in the interactions of the Family and Property Trusts changed after this decision was implemented – there is nothing to suggest that the operation of the farming enterprise and its use of Lots 1 and 2 did anything but continue as before.
I also accept the submissions made by Counsel for the husband in relation to the effect of the terms of the Trust Deed of the Property Trust as they touch upon the right of indemnity conferred against the trust property on the trustee and the consequences of that for the case advanced by the other parties. It is clear that one of the labilities of the Property Trust at the time Ms I and Ms J signed the Notice of Appointment on 2 February 2012 was the CBA loan. I accept that it is of no moment that there was no registered mortgage over Lots 1 and 2 because CBA was already secured by registered charge over the assets of L as trustee for the Property Trust.[68]
[68] Exhibit 40.
I accept the force of the submissions to the effect that there is an inconsistency between the fact that the parties applied the income to which the Property Trust was entitled to meet the CBA loan repayments (rather than for some other purpose) and the now asserted intention that their daughters have the land debt and encumbrance free. I consider that the fact that payments made by the Family Trust to assist the Property Trust were treated in the Family Trust Financial Statements as loans to the Property Trust is completely inconsistent with the proposition that it was intended Ms I and Ms J receive those properties debt and encumbrance free: if it was always intended that the Family Trust carry the burden associated with the CBA loan and, in effect, meet the loan repayments by way of gift to the Property Trust, there would have been no need to record the provision of these funds in the way that occurred.
That the Second Respondent has disavowed any intention to service or take up the CBA loan is clear from by the orders sought by the Second Respondent and its actions after it was appointed as trustee for the Property Trust.
I accept that, by mortgaging “C Property” to secure the debt of L Pty Ltd ATF the Property Trust in respect of money which was raised for the benefit of the Property Trust and applied for the purpose for which it was raised, the husband and wife are secondarily liable and entitled to be exonerated by L Pty Ltd ATF the Property Trust. I accept that, as L incurred the liability under the CBA loan in its capacity as Trustee for the Property Trust, it retains a right of exoneration against the assets of that Trust notwithstanding its removal as trustee of the same - its removal as trustee does not alter this right and it can enforce a right of recoupment or exoneration against the Property Trust given that the Second Respondent is a party to these proceedings.
L is an entity in which only the husband and wife have an interest. It will only benefit if orders as sought by the husband are made. Its absence from the proceedings is not a bar to orders being made to give effect to the conclusions I have reached.
For the reasons outlined above, I am persuaded that the husband, the wife and Hunter Family Holdings ATF the Hunter Family Trust and L Pty Ltd are each entitled to be exonerated from any guarantee given by them to CBA to secure the indebtedness of L Pty Ltd ATF the Hunter Property Trust in respect of the purchase of Lots 1 and 2 and that the Second Respondent should take steps to discharge (whether by repayment or refinance) the indebtedness arising from the CBA loan.
The husband also seeks that the Second Respondent in its capacity as trustee for the Property Trust pay certain liquidated sums to the Family Trust in satisfaction for what is said to be an inter-entity loan from the Family Trust to the Property Trust and payments met by the Family Trust in relation to the CBA loan.

In addition to the funds generated by their farming enterprise, the parties received the benefit of significant monetary contributions from the husband’s mother: in amounts totalling about $684,000.00.
Senior Counsel submitted that, given the significant period of time which has elapsed since the last financial contribution was made by the husband’s late mother, the significance of these contributions has diminished. Whilst in one sense that may be true, the opportunity the receipt of such funds at the times they were received by the parties provided to the parties and the use to which they were put (for example, paying off a farm machinery loan and in respect of significant capital improvements to real property) cannot be ignored.
Whilst the wife’s mother also made a direct financial contribution by providing the parties with $100,000,00 which enabled their purchase of additional E Company shares (and in respect of which they repaid about $32,000.00) this financial contribution is, as has been appropriately conceded, dwarfed by that made by the husband’s mother.
I accept that both the husband and wife worked hard during their marriage. I accept that the husband worked long hours in a physically demanding role in order to farm the land they acquired over time. Whilst I also accept that the wife worked hard in managing and undertaking the administrative aspects of the farming enterprise, which included the parties’ participation in lengthy litigation, I am persuaded that the husband’s efforts in working at tasks involved with the day to day and general hands-on operation of the farming enterprise far exceeded those of the wife.
I consider it much more likely than not that the account proffered by each of the husband and wife about the extent of the wife’s contribution to the performance of farming tasks is coloured by their respective perception of the same: that is, I consider it more likely than not that the husband understated the wife’s contributions to farming tasks and the wife overstated her contributions to the same.
I accept that the wife made the vast majority of the homemaker and parenting contributions during the marriage and that, while the husband assisted when he could, the reality of his long days and arduous physical work means that it is much more likely than not that his assistance and participation in and around the home and with the parties’ daughters was relatively limited. The wife’s contribution in this regard that must be assessed, not in any “merely token way”, but in terms of its ‘true worth’ to the accumulation of property during the cohabitation.[123]
[123] Mallet and Mallet (1984) 156 CLR 605.
The parties lived separately (with the wife and Ms J and Ms I living on the W property and the husband living at “C Property”) from 2002 until their separation toward the end of 2011. This fact must necessarily mean that each party’s opportunity to make contributions encompassed by the terms ‘homemaker’ within this period is circumscribed.
Whilst each of the parties may be dissatisfied with the conclusion I have reached about the extent of the wife’s participation in and contribution to the operation of the farming enterprise, even an error about this issue matters little given my overall conclusion that, save for the issues of his initial contributions and the significant financial contribution made by the husband’s mother during the marriage, each party contributed equally - albeit it differently - from the time of their cohabitation until separation.
When considered collectively, the financial contributions made by the husband and his mother are such that, in moving to that quantitative reflection of my qualitative evaluation of their respective contributions (however made), I have determined that the assessment of the parties’ contributions in the period from marriage until separation favours the husband. The quantification of that conclusion is expressed in my finding that the contributions to separation are as to 52½ per cent to the husband and 47½ per cent to the wife.
Whilst the husband has continued to work in the farming enterprise since separation, the wife has continued in her role in managing and undertaking the administrative aspects of the farming enterprise. Each has continued to make available to the other real property in which each has a legal interest and each has participated in the operation of their farming enterprise in the same way after separation as they did prior to it. Each party has continued to be accommodated on the properties on which they predominantly lived before separation and each has continued to be supported financially from the receipts of the farming enterprise. In such circumstances, I am not persuaded that either party’s post separation contributions – again, different in nature but equally important – outweigh those made by the other.
The husband’s successful insistence that he and the wife and the trustee of the Family Trust be exonerated by the Second Respondent in respect of the CBA loan (standing at $324,000.00) and that the Second Respondent repay the funds owing by the Property Trust to the Family Trust (in an amount of $223,215.63 to which will be added the quantum of any CBA loan repayments made since the hearing concluded) has directly caused the nett value of the property of the parties to increase by those amounts. I consider that this contribution should properly find reflection in the overall assessment of the overall contributions made by the husband and wife.
For the reasons I have outlined, I conclude that the contributions of the parties as at the date of trial are as to 53 per cent to the husband and 47 per cent to the wife.
The assessment of contributions in this manner results in a disparity in the parties’ respective financial positions in favour of the husband in an amount of about $597,120.78 which I consider appropriately reflects the assessment of the parties’ respective contributions.
I am not persuaded that any of the orders proposed by either party will have any effect on the earning capacity of either party.

Relevant s 75(2) matters

Counsel for the husband submitted that an adjustment in the husband’s favour of between 2.5 per cent and 3.5 per cent to take into account properly the relevant 75(2) matters would do justice and equity between the parties.
Senior Counsel for the wife submitted that if - as has not been the case – the Court accepted his client’s argument for an adjustment in her favour at the contributions stage of the determination and concluded that she should receive property and superannuation interests equal to 55 per cent of the nett property and superannuation of the husband and wife, no further adjustment for s 75(2) matters would be warranted. Whilst it is not entirely clear, I proceed on the basis that an absence of success in the Kennon argument means that the wife seeks that an adjustment (for s 75(2) matters) necessary to see her receive property and superannuation interests equal to that 55 per cent assessment should be made: given my conclusions about contributions, I proceed on the basis that the wife seeks that an adjustment of up to 8 per cent in her favour.
The husband is currently 68 years old. Counsel who appeared on his behalf submitted that his capacity to continue farming is limited to a period of no more than five years from the date of the hearing. Counsel also submitted that, as the husband suffered a heart attack in February 2012 and suffers from high blood pressure, diabetes and knee and back problems, his ongoing ability to continue to work as a farmer as he has previously is further compromised.
I accept that, as the husband has worked in the labour intensive pursuit of farming since he was a teenager, it is more likely than not that he has experienced and, will in the future, experience, the physical consequences of those labours as he ages. Whilst this may have some impact in his ability to implement his capacity to continue farming into the future, his retention of “C Property” and Lot 3 will provide him with either the capacity to engage someone to farm those properties on his behalf (whether pursuant to a share-farming agreement or on some other basis) or, if sold, will provide him with sufficient financial resources that he need not continue to work for remuneration if he so chooses.
The husband seeks to receive “C Property” and to assume responsibility for the $248,000.00 loan secured by mortgage over it. In contrast, the wife, who is 59 years of age, will receive the W property properties which are free from encumbrance.
It is agreed that the wife will receive E shares, ownership of which will accord her entire receipt of the significant income stream, given the dividend payments those shares have previously provided to the Family Trust for use by the parties. For example, the dividends received in FY09 = $344,829.00, FY10 = $229,886.00, FY11 = $80,460.00, FY12 $134,100.00, half year to 31 December 2012 = $214,561.00.
That is, in some contrast to the husband’s position, the wife will own E shares – whether personally or by way of an entity nominated by her – which will see her derive significant passive income without the necessity of engaging in employment. Presumably, she will continue in her role as secretary of the company, which will also result in her receipt of a small annual income.
Whilst the wife has extensive experience in running the office or managerial aspect of a farming enterprise, it is accepted that the real property she will receive is not large enough to support a commercial farming enterprise.
The wife borrowed $25,000.00 from her mother after separation to pay some of her legal expenses. There is no evidence suggest that her mother has taken, or is likely to take, any steps to require the repayment of these funds. Perhaps this is understandable given that the wife’s mother has lived in a house on the W property for a number of years. I accept the concession appropriately made by Senior Counsel for the wife to the effect that, given the nett value of the property of the parties, this indebtedness (even if accepted as being one which is likely to be enforced – a conclusion I am not persuaded to reach) is of little (if any) consequence.
The nett value of the property of these parties is such that, however the manner in which it is received by either of them, each will have sufficient wherewithal to support themselves comfortably into the future. Neither has the responsibility for the support of any child and their daughters Ms J and Ms I are financially secure and independent. Not only did they apparently commenced a small business selling jewellery over the internet at one stage, as the only unit holders in the Property Trust and the directors of its trustee, they have the property of the Property Trust available to them for use in their own support.
I take into account the value of the property each party will have available to them as a consequence of my findings in relation to contribution.
As already discussed, the capital gains tax, costs of sale and quantum of tax on retained earnings, being the costs (broadly described) associated with the sale of property acquired by the parties during their lengthy marriage and used by them in their farming enterprise, are significant.
There is no suggestion at all from the wife that she has any intention of disposing of W property or any of the other property which she will retain and/or receive at any time in the foreseeable future. In contrast, the husband, who is 9 years older than the wife, has expressed a desire to retire at some not too distant time.
Having declined to treat these as a liability for the purposes of determining the nett value of the property of the parties, it is necessary that regard be had to the same during a consideration of the matters in s 75(2).
To fail to do so would ignore the reality that, in retaining the property he seeks to retain, the husband will assume total responsibility for the costs (broadly defined) associated with the future disposal of the same. As already mentioned, these costs have been calculated in the amount of about $988,429.00 or about 9.9 per cent of the nett value of the property (including superannuation) of the parties and about 70 per cent of the total costs (broadly defined) liability of about $1,400,000.00. Additionally, the wife, too, will assume full responsibility for the costs (broadly defined) associated with the future disposal of property she seeks to retain. These have been calculated as being in the amount of about $402,891.00 or about 4 per cent of the total nett value of the property (including superannuation) of the parties and about 30 per cent of the total costs (broadly defined) liability.
It is immediately apparent that the husband’s responsibility will be nearly double that borne by the wife.
Given that the liabilities associated with the disposition of the properties relate entirely to property acquired by the parties during their very long marriage, I consider it appropriate that they share equitably in the burden of the same. A situation in which one party is left to assume the burden of nearly double the cost (broadly defined) liability than the other after a partnership of 27 years is not something which I regard as equitable.

Conclusions as to s 75(2) factors

My conclusions as to the respective contributions of the parties will result in a 6 per cent differential between the parties: the husband, who is 9 years older than the wife and, by virtue of that fact, approaching retirement, will receive property and superannuation entitlements valued at about $5,274,566.89 and the wife will receive property and superannuation entitlements valued at about $4,677,446.11: that is, he will receive property having a value of about $597,120.78 more than she will. She will receive the capacity to derive significant passive income and he will assume a significantly greater responsibility for the costs of disposing of property acquired over their lengthy marriage and burdened with capital gains tax and the other costs spoken of in an amount nearly double those associated with the property she will receive and/or retain.
The combination of these factors in particular persuades me that an adjustment of 2 per cent in the husband’s favour is required to ensure a just and equitable outcome.

Justice and equity of the proposed orders

The consequence of the conclusions outlined above is that, having regard to the parties’ respective contributions to trial and the relevant s 75(2) matters, at the conclusion of a long marriage:
a)into which the husband contributed more by way of initial financial contribution and during which significant financial contributions were made by his mother; and which was
b)productive of two now financially independent and established adult children; and
c)during which each otherwise contributed fully and to the best of their respective abilities; and
d)from which both will have the ongoing ability to derive an income but the wife’s will occur (passively) by virtue of ownership of shares and the husband will bear the burden of nearly twice the cost associated with the future disposition of assets acquired during it,
the parties will share in the nett value of their property such that the husband will retain and/or receive property and superannuation entitlements of 55 per cent of the nett value of the property of the husband and wife and the wife will retain and/or receive property and superannuation entitlements of 45 per cent of the nett value of the property of the husband and wife.
The approximate consequence for the husband and wife of the conclusions outlined above is summarised in the table below which outlines an approximation and is indicative[124] of the property and superannuation each will retain or receive.
[124]I use this word deliberately noting that the parties are to be afforded an opportunity to be heard in relation to the form of the orders to be made to give effect to the conclusions I have reached.

HUSBAND		WIFE
Property	Value $	Property	Value $
“C Property “with the “C Property” loan	2,850,000.00 (248,000.00) 2,602,000.00	K Street W property	950,000.00
Extra portion of “C Property” acquired in June 2013	13,000.00	Shares in E Pty Ltd	1,669,372.00
Family Trust (less E shares	1,104,828.00	Wife’s personal bank accounts less reimbursement to the husband	56,724.00 (1,363.00) 56,588.00
B Pty Ltd	193,659.00	Furniture and chattels at W property	12,854.00
Husband’s personal bank account	7,000.00	Plant and Equipment at W property	48,540.00
Furniture and chattels at “C Property”	3,800.00	Funds already received by way of partial property settlement	446,940.00
Reimbursement from the wife	1,363.00
Funds already received by way of partial property settlement	442,600.00
Total:	4,368,250.00	Total:	3,183,067.00
Within Superannuation · Lot 3 “O Property”,	1,450,000.00	Within Superannuation · 2 K Street W property (Lots 2 and 5)	1,100,000.00

As the purpose of the table above is to provide an indication of the consequences of the conclusions I have reached, it does not include the liability of the Superannuation Fund but, obviously, this needs to be taken into account in the determination of the actual items of property that each party will receive and the calculation of the quantum of any payment required to be made.
For the reasons outlined above, I am satisfied in all the circumstances of this case that it is just and equitable and appropriate that orders be made adjusting the existing interests of the husband and wife in their property and superannuation interests such that the husband will retain and/or receive property and superannuation entitlements of 55 per cent of the nett value of the property of the husband and wife and the wife will retain and/or receive property and superannuation entitlements of 45 per cent of the nett value of the property of the husband and wife.
Given the time that has elapsed since the conclusion of the trial, I intend to give the parties the opportunity to be heard in respect of the specific terms of orders to give effect to the conclusions I have reached.

Tess, the dog

The husband sought an order for the return of the family dog to him. The dog has been in the possession of the wife and the parties’ daughters for a number of years; it has previously been referred to by both the husband and wife as belonging to the girls. In the circumstances, I am not persuaded that an order that the dog be provided to the husband is appropriate and I decline to make it.

Order for Specific Chattels

The husband’s affidavit contains evidence of his desire to receive certain chattels as part of his entitlement. Included within these are certain items of plant and equipment which have been in the wife’s possession since at least separation. Given this, I accept the submission made by Senior Counsel for the wife to the effect that there is no basis upon which the Court could conclude that the balance of convenience favours the making of an injunctive order requiring the wife to return those items to the husband or that it is otherwise proper or appropriate to make such an order.
The positon is, however, different when regard is had to the more personal items particularised by the husband. Included within these are chattels like tea spoon collection, family photos and copies of photos and videos of the children.
No evidence was led in the wife’s case to support her opposition to the husband receiving these items. Her challenge to the same was not apparent from her affidavit material. Given this, it is not surprising that Counsel for the husband did not cross-examine her about the items or any opposition to the husband obtaining them.
I accept the husband’s evidence about the chattels that are particularly personal in nature and I am persuaded that the balance of convenience favours the making of and/or it is appropriate that an order is made that the husband receive, the tea spoon collection and copies of the family photos and photos and videos of the children.

Application to re-open

I refuse the Applications made by the wife and Second Respondent to re-open their respective cases on the basis that I am not satisfied that the interests of justice would have been better served by permitting the same. I arrive at this determination because I am not persuaded that the further evidence sought to be adduced was so material, or that, if accepted it would most probably have affected the case or that it could not, by reasonable diligence, have been discovered earlier. Additionally given the nature of this case, involving as it does an operating farming enterprise engaged in crop production, I am not persuaded that I would be more able to do justice to the facts of the case if leave was granted.
In arriving at this decision I take into account that, by virtue of an existing order (made on 2 February 2012) the Husband has been restrained from dealing with any of the assets (including crops and grain) without first obtaining the Wife’s written consent. The Order also provided that the wife remain the bookkeeper for all the financial interests of the parties and provided that she had liberty to inspect the properties at a frequency of one visit per month.
It was common ground during the hearing that the husband had planted grain on the properties and intended to harvest and sell it in the usual course of the operation of the farming enterprise. It was accepted that he told the wife in late 2013 that he was planting crops and later advised that he intended to start harvesting the same.
I also take into account that the evidence given by the wife in support of her Application – to the effect that when she inspected the property on 27 November 2013, she had not inspected the property since 23 October 2012 (despite the existence of the February 2012 Order) – is demonstrably untrue according to her own previous affidavit material.
Whilst it was submitted otherwise by on behalf of the wife, I am not persuaded that the mere fact of disagreement about matters asserted by a party seeking to re-open of itself provides sufficient basis for the exercise of discretion in favour of permitting reopening: it is completely unsurprising in this case that the parties are at odds about factual matters - such has been the entirety of the litigation.
I do not accept the submission that the further evidence sought to be adduced could not, by reasonable diligence, have been obtained, especially given the requirements imposed upon the husband by the February 2012 Order. Additionally, the evidence touching upon the airstrip established that, whatever actions the husband took, they were taken well before the trial commenced and could have been discovered if inspection had occurred as provided for by the February 2012 Order: the fact that this did not occur was not the fault of the husband but, rather, the inadvertence of the wife.
I do not accept that whatever damage asserted to have occurred to the airstrip was not reasonably discoverable before November 2013: the February 2012 Order clearly permitted inspection.
I accept the submissions made by Counsel for the husband to the effect that the issues sought to be agitated by the wife are such that they should have been raised at the trial of the matter with reasonable diligence, that the wife had had multiple opportunities to seek the valuation of the crop following receipt of notice of its planting - but did not do so - and that the issues sought to be agitated are not sufficiently material to persuade that the discretion should be exercised in favour of granting the Applications.

I certify that the preceding two hundred and ninety-eight (298) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 3 December 2015.

Associate:

Date: 3 December 2015

[2015] FamCA 1075

3 December 2015

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