Hutton & Hutton

[2007] FamCA 1701

FAMILY COURT OF AUSTRALIA

HUTTON & HUTTON [2007] FamCA 1701

FAMILY LAW – PROCEEDINGS FOR PROPERTY SETTLEMENT – Short marriage – Serious allegations, including rape and blackmail – Informal agreement after settlement

Family Law Act 1975 (Cth)

Applicant: Ms Hutton

Respondent Mr Hutton

File Number: TVF 2485 of 2005

Date Delivered: 14 December 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 19, 20, 21, 22 June 2007 and 20 July 2007 with written submissions concluding 15 August 2007

Representation

Counsel for the Applicant: Mr Justin Greggery

Solicitor for the Applicant: Roberts Nehmer McKee

Solicitor for the Respondent: In person

Orders

The orders will be:

1. That within three months of the date of these orders, the husband pay to the wife the sum of $24,000.

2. That the husband pay spousal maintenance for the wife in an amount of $150 per week for a period of one year, calculated from the date of these orders, with the first payment being due 21 December 2007.

3. That pursuant to s 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s interest in UniSuper (hereinafter referred to as the “Superannuation Fund”), the wife is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations2001 using a base amount in the sum of $50,000 and there is to be a corresponding reduction in the entitlement the husband would have had in the Superannuation Fund but for this order.

4. That par (3) of these orders shall take effect from the operative time.

5. The operative time for these orders is seven (7) days after the service of sealed orders upon the Trustee of the UniSuper Superannuation Fund.

6. That, having been afforded procedural fairness in relation to the making of this order, this order binds the Trustee of the UniSuper Superannuation Fund.

7. That the parties shall equally bear any costs, fees or charges imposed by the Trustee of the Superannuation Fund to give effect to these orders.

8. That the husband have liberty to apply on reasonable notice being given to the wife for the return of any item of furniture, chattels or other personal property of particular sentimental value to him which has been retained by the wife provided that any such application must be initiated within 60 days of this day.

9. That save as aforesaid the husband and the wife are each entitled to retain all other items of property presently in their respective possession or control including, but not limited to, money, shares, real property, motor vehicles, entitlements to superannuation, furniture, furnishings and personal effects.

10. That the husband and the wife do all acts and things necessary to authorise the release to the wife of all funds, including interest, held in the Ireland Stapleton Trust Account.

11. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders and each party be solely liable for and indemnify the other in respect of all debts incurred in his or her name.

12. That all documents produced on subpoena be returned to the person or institution providing the same at the expiration of 45 days from this day.

13. That all exhibits be returned to the person, or solicitor for the person, tendering the same provided that they be returned to the Court upon request.

14. Save as aforesaid all applications be otherwise dismissed and removed from the list of cases awaiting determination save for any applications for costs.

15. That each party be at liberty to bring an application for costs by filing written submissions in respect of such application within 30 days of this day.

16. That the respondent to any such application shall file written submissions in response within 30 days of service of the other’s party’s submissions.

17. That the cover sheet of any such submissions shall be annotated with the date of service of such submissions.

18. That any application for costs be considered in Chambers, so far as is practicable.

IT IS NOTED that publication of this judgment under the pseudonym Hutton & Hutton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVF 2485 of 2000

MS HUTTON  

Applicant

and

MR HUTTON  

Respondent

REASONS FOR JUDGMENT

Reserved

1. These are proceedings for alteration of interests in property arising from the breakdown of the marriage between Mr Hutton and Ms Hutton.  Even though the parties are now divorced it will be convenient to continue to refer to them as “the husband” and “the wife”.  The wife also seeks spousal maintenance, amongst other orders.

Short History

1. The husband was born in September 1954 and accordingly was 52 at the time of the trial.  The wife was born in June 1963 and accordingly was 44 at the time of the trial.  The parties met in 1995 in Germany where they were both working.  They commenced cohabitation in about May 1999 according to the husband’s evidence and according to the wife’s evidence in September 1999.

2. The wife has two children who lived with the parties during their relationship.  K is aged about 13 and S is aged about 15.

3. The parties married in the United States of America in November 2000.  They took up residence in the USA in late December 2000 where they lived until late 2002 when they moved to Australia.

4. They separated on 5 May 2003 and were divorced on 17 March 2005.

5. The husband has repartnered; the wife has not.

Legal Principles

The Approach to be taken in Property Settlement Cases

1. The preferred approach to be taken in cases involving alteration of interests in property was restated in Hickey (2003) FLC ¶93-143 at par 39 in the following terms:

   “39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79. That approach involves four inter- related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (‘the other factors’) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC ¶91-626; Ferraro and Ferraro (1993) FLC ¶92-335; Davut and Raif (1994) FLC ¶92-503; Prpic and Prpic (1995) FLC ¶92-574; Clauson and Clauson (1995) FLC ¶92-595; Townsend and Townsend (1995) FLC ¶92-569; Biltoft and Biltoft (1995) FLC ¶92-614; McLay and McLay (1996) FLC ¶92-667; JEL and DDF (2001) FLC ¶93-075 and Phillips and Phillips (2002) FLC ¶93-104.”

Spousal Maintenance

1. The wife’s claim for spousal maintenance falls to be considered after the determination of the property settlement claims and in light of the orders made following that determination (see Clauson).  In Bevan (1995) FLC ¶ 92-600 the Full Court held that an award of spousal maintenance requires:

   “1.      a threshold finding under s 72;

   2.consideration of s 74 and s 75(2);

   3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit;  and

   4.discretion exercised in accordance with s 74, with ‘reasonableness in the circumstances’ as the guiding principle.”

Self-Represented Litigant

1. In the present case the wife appeared as a self-represented litigant.  In Re F:  Litigants in Person Guidelines (2001) FLC ¶ 93-072 the Full Court considered and revised earlier guidelines which had been given for the assistance of judges at first instance in cases involving litigants in person. I had regard to these Guidelines throughout these proceedings.

2. An Application in a Case has been made which came before the Court on Monday, 18 June 2007, the day before the trial was due to commence.  After dealing with those matters I took the opportunity to explain to the wife matters of procedure.  I explained to her how the case would be dealt with, her rights in presentation of her case, cross-examination and the like.  During the course of the hearing I explained when necessary matters relating to evidence.

3. I provided to the wife before the case commenced copies of s 79 and s 72 and s 75 of the Family Law Act 1975 (Cth) (“the Act”). I also explained the significance of those sections to her. During the course of the hearing I provided the wife with relevant sections of the Act relating to splitting orders in superannuation cases and the Rules relating to the manner in which procedural fairness was required to be given to trustees of superannuation funds.

4. I had advised the wife before the case commenced, amongst other things, of my obligation to ensure that the proceedings were not protracted.  I was acutely aware that the wife would have to cross-examine the husband which would be and was a difficult situation for both parties.  It was necessary in my view for this to be carefully monitored.

Standard of Proof

1. The standard of proof I have applied is the civil standard, namely the balance of probabilities having regard to the particularity and gravity of the matter (see s 140 Evidence Act 1995 (Cth);  Briginshaw (1938) CLR 336).

2. In Briginshaw Dixon J said:

   “Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of a Tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Tribunal.”

3. Some very serious allegations were raised in these proceedings.  The wife’s case included allegations of domestic violence.  She also alleged that the husband had raped her following separation.  The husband alleged that the wife had effectively threatened to blackmail him about certain events in his past.

4. In D & D [2005] FamCA 356, an unreported decision of Carmody J delivered 11 May 2005, his Honour provided a most helpful analysis of “the standard of proof” applicable in family law proceedings. His Honour wrote:

   “[140]The relevant test is found in s 140 of the Evidence Act, 1995 (Cth). Sub-section (1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. Sub-section (2) introduces notions of weight and variability into the forensic process.

   [141]In his famous dictum in Briginshaw v Briginshaw, a divorce case involving alleged adultery, Dixon J refers to proof as being the feeling of actual persuasion of the occurrence of a disputed event or the existence of a contested fact.

   [142]His Honour noted that at common law it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the decision maker.  The same applies today under the statutory formulation.  But, in attempting to describe what is needed to prove an issue to the reasonable satisfaction of a decision-maker, his Honour seems to suggest that the standard itself is a mathematically variable one depending on such considerations as the seriousness of the allegation, the inherent unlikelihood of it occurring and the gravity of the potential consequences. 

   [143]However, as the following paragraph from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd clearly shows, the High Court does not currently see the civil standard as a sliding scale :

   ‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’

   [144]This passage makes it plain that there is no special standard of proof in civil matters where criminal or other serious misconduct is alleged.  The considerations mentioned by Dixon J in Briginshaw appear to refer to the weight or strength of evidence a party has to adduce in order to prove a fact in issue on the balance of probabilities.  In other words, they relate to the quantum as opposed to the standard of proof required and are taken into account principally because the more serious an allegation the less likely it is to occur.

   [145]Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings in his judgment in Re:  H & Ors in the context of a wardship application.  His Lordship relevantly stated:

   ‘Despite their special features, family proceedings remain essentially a form of civil proceedings.  Family proceedings often raise various serious issues, but so do other forms of civil proceedings.

   The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.  Fraud is usually less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury.  . . . Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

   Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.  It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.’

   [146]What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.

   [147]Thus, civil proof is not a simple matter of belief and persuasion but of ‘reasonable satisfaction’ following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s 140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw and in the light of the parties' respective power or capacity to produce or contradict it.

   [148]The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters.  However, the law looks for probability not certainty.  There are degrees of probability but, when the law talks about ‘the balance of probabilities’, it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not.

   [149]Where, as here, proof of a fact in issue hinges on rational inferences based on circumstantial, as distinct from, direct evidence, the conclusion contended for must be rational and reasonably open.  There has to be something more than mere conjecture or suspicion.  A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes.”  (Citations omitted.)

5. Having considered the authorities to which Carmody J referred I adopt with respect his formulation of the test to be applied.  The various allegations will be considered in  more detail later, but for present purposes:

   ·I am reasonably satisfied in the Briginshaw sense that the wife effectively blackmailed the husband and coerced his consent to the purported property settlement in August 2003

   ·I am not satisfied to the requisite degree that the husband physically abused or assaulted the wife or that he raped her

   ·I am not satisfied to the requisite degree as to when the wife became aware of the husband’s sexual identity issues and consequently cannot determine when the wife first threatened to disclose this information.

Credit

1. I have had the benefit of observing both the husband and the wife when they gave evidence and were cross-examined.  This can be of considerable assistance (see Government Insurance Office of New South Wales v Bailey 27 NSWLR 304 per Kirby J at 313). However, it is appropriate to be cautious in drawing inferences from the demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Others (1999) 160 ALR 588 commencing at 617).

2. I do not find it appropriate or necessary to make a blanket finding as to credit or reliability.  Nor will it be necessary to refer to the totality of the matters raised in the evidence which I have heard and read throughout this case.  The substantial features of the history which was presented will be dealt with and where necessary findings will be made in the context in which differences arise in that evidence.

3. That said, I have approached the evidence of the husband with some considerable caution.  He acknowledged both in his affidavit and in cross-examination that he had lied to the wife about his past when they first met.  He had for example, told her that he had only two children of a previous marriage, whereas in fact, he had four children of that union.  He had also told her that he had been in the SAS which was not the case.  He had not told the truth to her or to some employers in the past about his professional qualifications.  These matters do him absolutely no credit, however he appeared to be appropriately remorseful about the falsification of his qualifications and according to his affidavit filed 26 April 2007 disclosed to his then employer that he had made false claims in his résumé as to two particular qualifications.  He also volunteered in the same affidavit that there was one subsequent occasion when, in error, his previous résumé which incorporated the qualifications he did not have, was used as the basis for his “profile” in conjunction with the presentation of a conference paper.

1. I also found it necessary to be cautious about the wife’s evidence.  It was patently clear that she holds the husband in complete disdain.  At the very least her lack of objectivity required caution to be used.

2. As will be seen, both parties were at times unreliable or inaccurate historians.

3. Throughout this judgment statements of fact should be construed as findings of fact unless otherwise indicated.

Orders Sought

1. The husband sought that funds retained jointly in the Ireland Stapleton Trust in the United States on behalf of the parties which he understood to be approximately US$10,000 be paid to him and that the wife pay his costs of the proceedings.  Otherwise, it was his case that he should retain all assets and financial resources in his possession or control.  That included superannuation of $189,600 (rounded).

2. I had some difficulty in understanding precisely what the wife was seeking.  On my enquiry and with reference to her amended response, she told me that she sought:

   ·That the agreement of the parties made 22 August 2003 be enforced;

   ·That she receive, by way of a splitting order, not less than $158,000 from the husband’s superannuation entitlements;

   ·That the funds held in the Ireland Stapleton Trust Account be paid to her;

   ·That the husband pay her the cash sum of $80,000;

   ·That the husband pay to her maintenance for at least two years of at least $1500 per month;

   ·That the husband pay to her one-half of the proceeds of sale of a home the parties had owned when they lived in the United States;

   ·That the husband pay to her one-half of the proceeds of sale of two motor vehicles after making allowance for a payment to the wife in respect of the proceeds of sale of a third vehicle;

   ·That all her personal belongings taken from her by the husband be returned or alternatively if the same were no longer in his possession that he pay compensation of about US$30,000;  and

   ·That the husband pay her at least one-half of his share of the equity in the real property owned jointly by the husband and his partner at L, with the husband’s share being valued by the wife at about $100,000.

3. As will be seen the wife’s position changed following the conclusion of evidence.

The Hearing

1. As I have already noted the wife appeared in person.  She had gone to considerable trouble to put her case before the Court and had obviously prepared it very thoroughly.

2. Mr Greggery of counsel appeared on behalf of the husband.  It is appropriate to observe that, that within the bounds of his duty to his client, counsel behaved very properly.  He was restrained in his objections and made appropriate concessions, some of which indeed exceeded what would have been strictly necessary.

3. On behalf of the husband I was provided with an Outline of Case Document and a list of objections to the wife’s affidavit.  Upon my request Mr Greggery clarified the orders which the husband was seeking, the same not having been set out with precision in his Amended Application or in his Case Outline Document.  I will return to this in due course.

4. The husband relied on the following:

   ·His Amended Application for Final Orders filed 25 January 2007

   ·His affidavit filed 26 April 2007 (“the husband’s trial affidavit”)

   ·His Financial Statement filed 26 April 2007

   ·A further affidavit which was filed by leave and without objection on 19 June 2007 (“the husband’s second affidavit”).

5. For her part the wife relied on the following;

   ·Her Amended Response filed 27 April 2007

   ·Her Financial Statement filed 9 March 2007

   ·Her affidavit filed 12 March 2007 (“the wife’s trial affidavit”)

   ·A further affidavit filed 27 April 2007 (“the wife’s second affidavit”).

6. The affidavit filed 27 April 2007 was an addendum to the wife’s trial affidavit.  Relevantly to these proceedings she enclosed a document to be substituted for an earlier and erroneous annexure.

7. The wife’s trial affidavit and annexures were contained in two bound volumes.  There was an index to this material.

8. The affidavit itself comprised 48 quite closely typed pages the paragraphs of which were not numbered.  In the left-hand column of each page the wife set out either background information or more commonly a date upon which certain alleged events were said to have occurred, and in the right-hand column of each page, where relevant, reference was made to annexures which were said to constitute the documentary evidence in support of her case.  There were just over 70 annexures which, all in all, covered some 500 pages.

9. Objection was taken on behalf of the husband to many of the matters set out in the wife’s affidavit and also to some of the annexure.  When those objections were allowed I crossed out the “offending” sentences or paragraphs with red ink and also utilised this method for striking out objectionable annexures.  This process took some two hours.

10. I took the wife to the husband’s two affidavits and raised some matters of my own volition which appeared to me to be objectionable.  The wife raised some matters as well.  I followed the same procedure in striking out objectionable material.

11. During the course of the trial it was necessary at times, and certainly more often than I would have wished, to raise with the wife enquiries as to the relevance her line of cross-examination.  Much of the material about which she initially cross-examined was directed towards the husband’s credit and it was generally allowed.  There were times, however, where the matters were of such peripheral relevance that I would not allow them to be pursued.  I also, at times, would not permit the wife to reiterate questions which had already been answered.

12. I would understand that the proceedings would well have been stressful to her but throughout the case the wife generally remained composed.  The husband also generally retained his composure although there were times when he became seemingly irritated, for example, when questions were repeated.  The husband also claimed that many of “his” documents were in the possession of the wife and had been retained by her notwithstanding an order made by the Court.  The wife confirmed that an order had been made that she return to the husband all documents in her possession which belonged to him and I note that such an order was made on 14 March 2006 by Federal Magistrate Coker when the proceedings were in the Federal Magistrates Court.  The wife claimed that she had photocopied all the documents in question prior to returning them to the husband.  The annexures to her affidavit certainly demonstrate that she has a great number of documents which could be said to “belong” to the husband.  Whether or not the same were returned, as she claimed, was not a matter which I could decide.

13. The wife, as seen, sought a splitting order in respect of the husband’s superannuation. The Trustee of the husband’s Superannuation Fund had not been accorded procedural fairness as is required under the Act. I advised the wife of this as well as the implications to her case. She subsequently arranged for the North Queensland Women’s Legal Service Inc to correspond with the Trustee, UniSuper. I was provided with a copy of the letter dated 20 June 2007 sent by the Women’s Legal Service as well as the orders sought by the wife in this regard. Both remain on the Court file. Relevantly the orders sought by the wife were:

    1.That the interest of the husband in UniSuper (hereinafter referred to as the “Superannuation Fund”) shall be split in accordance with Section 90MT(1)(a) of the Family Law Act and in respect thereof the base amount to be allocated to the wife is $50,000.00.

    2.That whenever the Trustee of the Superannuation Fund makes a splittable payment from the interest of the husband in the Superannuation Fund, the Trustee shall pay to the wife an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of the said base amount and there shall be a corresponding reduction in the entitlement the husband would have had but for these orders.

    3.That order 2 of these orders shall take effect from the operative time.

    4.The operative time for these orders is seven (7) days after the service of sealed orders upon the Trustee.

    5.That, having been afforded procedural fairness in relation to the making of this order, this order binds the Trustee of the UniSuper Superannuation Fund.

14. On the last day of the hearing, 22 June 2007, I was informed that the parties, who had not yet commenced their final submissions, had resolved their differences.  The proposed settlement included a splitting order.  By consent, the matter was adjourned to 20 July 2007 for mention, on the basis that consent orders would be presented, subject to communication from UniSuper.  Unfortunately the parties’ settlement collapsed.  Accordingly on 20 July 2007 orders were made for written submissions, the husband’s counsel agreeing to file the first submissions to assist the wife.  Time was later extended for the wife to file her submissions.

15. By letter dated 8 August 2007 UniSuper advised the Women’s Legal Service that “the proposed terms of the Family Court order are acceptable to the UniSuper Trustee”.  In due course, that letter was provided to me and placed on the Court file.

16. Having regard to the wife’s final written submissions and the terms of the proposed order forwarded to the trustee of the husband’s superannuation fund, the wife no longer pursues a number of matters about which she had sought orders when the hearing commenced.

17. The wife continues to seek:

    ·that the funds held in Ireland Stapleton Trust Account be paid to her;

    ·that the husband pay her the cash sum of $80,000;

    ·that the husband pay to her one-half of the proceeds of sale of a home the parties had owned when they lived in the United States;

    ·that the husband pay to her a share in the proceeds of sale of two motor vehicles;

    ·that the husband pay to her maintenance for at least two years of at least $1500 per month;

    ·a splitting order of the husband’s superannuation, with the base amount to be allocated to the wife being $50,000.

Background

Events in Germany

1. The parties met in Germany in 1998.  They were both working for the same company, G Company.  As I understand it, this was a global company.  The husband had earlier worked for the Australian branch of the company and had transferred to Germany in 1998.

2. The wife was married at the time.  As I have already recorded she has two children from that marriage.  The wife and her first husband separated in about May 1999 and according to the husband they started to cohabit at around that time.  It was the wife’s case that cohabitation did not commence until September 1999.  To my mind, this difference in the parties’ evidence is not significant. 

3. When the parties first commenced their relationship the husband was employed as a Manager.  His evidence was that his salary was the equivalent of about AU$66,800.  The wife suggested that he earned a great deal more than that, pointing to Annexure 3 to her affidavit.  That document is in German.  There was no translation of it.  This difference in the parties’ evidence is not one which I can determine.

4. The husband’s case was that at the time he had minimal assets.  When he had relocated from Australia he had approximately AU$17,000 which was held in a German bank account and which were the nett proceeds of the sale of his former home in Sydney.  These moneys were used to re-establish himself in Germany.  He did have some furniture.  Details and values were not provided.

5. It is common ground that the wife was employed at the time the parties cohabited.  I am by no means certain as to the income that she earned.  I note that the husband said in his trial affidavit that he thought her salary would have been the equivalent of about AU$45,925.  The wife did not contradict this.

6. The parties and the wife’s two children took up residence in rented accommodation.

7. It was common ground that the husband paid the rent, however, it was his case that the wife largely retained her own salary, save for some payments for her children and luxuries, such as designer clothes. The husband also conceded that the wife had a nanny, given that she worked and that payment for this was made by the wife.  Otherwise, it was the husband’s case that the majority of household expenses came from his salary.  The wife denied the husband’s evidence when she was cross-examined.  For example, she said that he did not pay the majority of the household expenses.  It was her case that she paid for food, household items and heating oil (inter alia), from her salary.  Neither party gave evidence as to the quantum of their respective contributions.

8. It does appear, however, that the parties had quite good lifestyle and whilst they were living in Germany went on various trips including one to Spain.

9. The wife and her first husband were able to resolve their financial arrangements out of court.  The wife received certain furniture and a cash settlement.  In his first affidavit, the husband estimated the cash component of the wife’s settlement at approximately DM220,000, which he equated to AU$183,724.

10. It was the wife’s case that she received the sum of DM230,000 in cash in July 1999 as a result of an out of court property settlement with her first husband.  There is an annexure to the wife’s second affidavit which comprises part of the agreement between the wife and her first husband which confirms that the wife received the sum of DM232,000 and a tax rebate of approximately DM9,000.  I note in the wife’s written submissions that her case was that she had to pay 50 per cent of all outstanding German tax liabilities from 1997, 1998 and 1999, and further that the 1997 tax rebate had to be paid back.

11. It is convenient to note here, and it must be noted throughout this Judgment that at no time was I provided with the relevant exchange rates at any given time applicable to the German and/or United States currency.  Both parties at times provided their own views as to what the equivalent value was in Australian dollar terms, but those views were not always consistent.

12. It was the wife’s case that she also received household items in the settlement with her first husband.  She said at p 1 of her affidavit that she and her first husband owned a new Toyota SUV, an Audi 100(A8), a Honda Shadow motorbike, together with a large quantity of very expensive Italian furniture.  She went on to say that the total replacement value of all house contents was more than DM250,000, which she equated to AU$200,000.  Self-evidently, replacement value does not necessarily provide evidence of actual value.  Nor did the wife provide any satisfactory evidence as to which personal and household items she received.

13. Annexure 1 to the wife’s affidavit (p 50), under the heading “Appendix I” purports to be a list of furniture and other items taken, or said `to be taken by the wife, following the settlement resulting from the breakdown of her first marriage.  I do not know whether that is a total list nor are there any values ascribed to the various items.  In her final written submissions the wife has asserted that she did not receive the entire contents of the house in the settlement, however, “did receive all of my personal items, many of the furniture items, kitchen items, whitegoods and all the personal items belonging to the children.”  I note that no kitchen items or whitegoods appear on Annexure I to the wife’s affidavit, however the wife has not chosen to put before the Court the complete agreement entered into between herself and her first husband and I cannot determine whether the list of chattels set out in Annexure I is or is not a complete list.

14. I also note that the wife estimated the value of the items she received in the settlement at around $150,000.  That assertion appears in her final submissions.  There is no evidence to substantiate it.

15. Whilst the wife notes that the husband did not challenge the value ascribed by the wife in her affidavit to the total value of the household contents belonging to her first husband and herself, that does not prove that the assertion made by the wife was correct, nor indeed does it establish what items she received and what the value of any such items were.

16. In her written submissions the wife has also asserted that she had at the time cohabitation commenced a Toyota SUV to which she ascribed a value of DM25,000.  I note there is no mention of this motor vehicle in those parts of the agreement between the wife and her first husband which were annexed to her two affidavits and it is the case of course, that there is no admissible evidence of the value of this motor vehicle in any event.

17. The only findings which I can safely make on the evidence are that the wife did receive a cash settlement of DM232,000, a tax rebate for 1997 of approximately DM9,000 which she probably had to repay, some items of furniture and other chattels and probably a Toyota SUV motor vehicle.

18. It is common ground that the wife kept these funds separately in her account at the Dresdner Bank in Germany.  The wife was cross-examined about this and denied that she had described these moneys to the husband as her superannuation fund.  Her evidence was that she regarded the moneys as her savings and expected them to accumulate.  In her written submissions the wife noted that her evidence was to the effect that she intended to use these savings ultimately to finance her retirement.

19. During this part of her cross-examination the wife also deposed that it was her belief that neither she nor the husband were accumulating any other savings at the time.  She confirmed that her salary was basically fully expended on expenses for the children, the nanny and living costs and further there were additional costs associated with her previous matrimonial home.  That home was registered in the wife’s name and it was to have been transferred to the wife’s first husband, however, the transfer was not effected at the time the parties entered into their out of court settlement.  Accordingly, there were costs which, according to the wife’s evidence, were billed directly to her, such as land taxes and the like.

20. The wife also told Mr Greggery that she had to draw on the funds in her bank account and to that extent she acknowledged that she probably lived above her means.  She found it difficult to be precise, which is understandable, however estimated that she drew on her savings to the extent of perhaps DM20,000 – DM30,000 a year.

21. Towards the end of 1999 the wife was encouraged by her superiors to apply for a position in an alternative department.  Her evidence was that she had previously been involved over a number of months in this alternative department within the company.  It was her evidence that she was subsequently offered a new position which would have meant a significant jump in her grade and salary.  She did not give any specifics of this.  As I understand her evidence, her pervious duties had to take priority and accordingly her official commencement date in the new post was deferred to early September 2000. 

22. In early 2000 the husband was offered an internal change of position within his company.  The position related to the establishment of an education department which was to be the education arm of the company.  When that had been set up the husband was to gain a senior role.  However, in about May 2000 the company underwent an internal restructure and as a consequence the husband was given notice that he would not be appointed to this senior role. This effectively made him redundant and his employment was terminated. He lodged an unfair dismissal claim which was settled out of court and in or about October 2000 he received a payment which included back salary, holiday pay and reimbursement of superannuation accrued during the time he was in Germany.  Both parties agreed that the amount involved was the equivalent of approximately AU$130,000. 

1. The husband’s position with the company was terminated effectively as at May 2000 and he commenced enquiries for alternate employment both within and outside Germany.

2. In June 2000 the husband and the wife travelled to the United States, for interviews with J Company. A friend or acquaintance of the husband was employed as a Vice President of J Company and I accept that this was the factor which influenced the eventual job offer which the husband received.

3. I accept that the husband and the wife stayed in the United States for approximately 10 days in June 2000 and that J Company covered the airfares and part of the accommodation costs.  I also accept however, that all other expenses were paid for by the husband from savings and credit cards.  It was his case, and I accept, that the wife did a lot of shopping at expensive boutiques and that the parties also had expenses for meals and car hire.  At the time of the interviews, arrangements for the wife to be interviewed by members of a Department of J Company were also made.

4. The husband was offered a position with J Company at a senior management level.  Both parties agreed that the salary was around US$230,000, which the husband equated to AU$294,000 per annum.  The husband was also able in subsequent negotiations to obtain some relocation expenses.

5. The offer of employment also included some additional matters such as an annual bonus and payment of legal costs associated with obtaining a work visa.  The husband accepted the offer in September 2000 (see Annexure 6 to the wife’s first affidavit).

6. In the husband’s first affidavit he deposed that J Company did not give any guarantee in relation the wife’s being employed with them in the United States, however agreed to consider this some time after the parties had settled there.  It was his case that he advised the wife accordingly.  In the wife’s first affidavit she described the situation as one where her employment was “deferred until we had settled in [the United States] with the children”.  She also deposed that the plan was that the family would move to the United States at the end of the year 2000.  She added that, given that she would not get any work visa or residency visa until around the middle of the year 2001, and further given that the immigration authorities in the United States did not recognise de facto relationships, the parties planned to marry prior to their move.

7. In October 2000 there was a fire in the basement of the house the parties were renting in Germany and in her first affidavit the wife deposed that a lot of boxes which contained clothing and personal items belonging mostly to her children and herself, and which had been packed and stored in anticipation of the move to the United States were destroyed.  She noted that some of the husband’s belongings were also damaged.  There was also damage to the rental property.  The wife made an insurance claim which was settled for more than DM78,000 according to the husband.  He equated this payment to AU$65,138.  It was the husband’s case that the costs associated with rectifying the rental property were paid direct to contractors by the insurer for the owner of those premises and that these payments were separate from the cash payment received by the wife.  It was common ground that the proceeds of the insurance claim were retained by the wife, her explanation being that most (but not all) of the items destroyed belonged to her or her children.  The wife’s evidence was that she believed the nett amount paid into her German bank account was DM50,000.

8. In or about November 2000 the parties travelled again to the United States, this time with the wife’s children.  I accept that the purpose of this trip was mainly to finalise arrangements and to meet with an immigration lawyer and relocation agent.  The children also had interviews at schools.  In his first affidavit the husband deposed that he recalled there was some discussion with the immigration lawyer in relation to difficulties for the wife in immigrating, because the parties were not married.  In any event, the parties did marry in the United States in November 2000.

9. I accept that again J Company paid the cost of airfares and part of the accommodation expenses for the family and that a significant amount of money was spent on entertainment and other expenses during this trip, which was paid by the husband from savings or credit card.  During cross-examination he told the wife that it was his belief that they spent a minimum of US$5,000 in two weeks.  The wife did not contradict this evidence explicitly save to say that she said during cross-examination that she had paid “some” of the expenses during the trips to the United States.

10. In December 2000 the wife resigned from her employment at G Company. 

Events in the United States of America

1. The relocation to the United States took place just after Christmas 2000.  At that time, it was the husband’s case that the parties’ assets comprised a bank account in his name with a credit balance of approximately DM150,000, perhaps less, which he equated to AU$103,655.  These funds derived from the husband’s unfair dismissal claim against G Company. According to the husband, the wife had approximately DM298,000 in her bank account, being the proceeds of her matrimonial settlement and the insurance claim.  The wife’s case was that she had approximately DM200,000, this sum being derived from the balance of her settlement with her first husband and the proceeds of the insurance claim.  Neither party had any documentation as to this, which is not a criticism, and the difference in their evidence cannot be resolved.

2. It was the wife’s case and I accept that she and her children obtained residency status for the United States, but this was dependent on the husband’s work visa, which in turn was dependent on his job at J Company.  The wife’s evidence was that she and her children were classified as “non-resident aliens” which prohibited her from working and obtaining a social security number or obtaining any accounts in the United States.  This was not disputed by the husband, however, I do note that the wife did in fact have a bank account in the United States with the Wells Fargo Bank (see Annexure 32 to the wife’s trial affidavit).

3. In April 2001 a house was purchased in the United States, for approximately US$680,000.  This was funded with two separate mortgages totalling about US$650,000.  It was the husband’s case that, during discussions about the financial arrangements concerning the purchase of this property, the wife indicated to him that she would not use any of “her money” for the property, even in the short-term.  He deposed that she consistently stated that she considered the money in her bank account to be hers and that it was the husband’s responsibility to provide for her and the children without her funds being depleted.  According to the husband the wife regularly referred to her funds as “her superannuation”.

4. For her part the wife said that the option of using moneys from her German bank account was never discussed and there was never any discussion about bringing those funds to the United States.

5. The deposit for the house was US$170,000.  The husband’s savings in his German bank account were not sufficient to pay that deposit and accordingly at the husband’s request, J Company agreed to provide the deposit as a short term loan, on the basis that it would be “reimbursed in conjunction with the settlement/financing and/or offset against relocation expenses” that his employer had agreed to pay.

6. When settlement of the purchase of the house took place there was a payment to the husband’s Wells Fargo account from the mortgagee of US$115,000, representing the difference between the total mortgage moneys advanced and the balance of the purchase price with settlement adjustments, noting that the husband’s employer had advanced the deposit.

7. When the family’s belongings arrived from overseas it was discovered that some were missing and some were damaged.  It is common ground that the husband, being the policy holder, submitted the claim to the insurers who paid about US$65,000 in settlement.  The settlement was made by a payment in February 2002 and a further payment in March 2002 and the funds were paid into the husband’s Wells Fargo bank account.  It was the wife’s case that at least US$50,000 of this amount should have been paid to her, given that most of the items lost or destroyed had belonged to her children and herself before the parties had even met.

8. During cross-examination the wife asked the husband whether he recalled a conversation where it was agreed that this money should have been paid to her.  The husband responded by saying that he recalled a number of discussions to this effect, and further that he recalled paying the wife $30,000 under duress for peace and quiet.  It is clear from the context that the payment must have been in US dollars.  It is convenient to note here that Annexure 32 to the wife’s trial affidavit indicated that as at 13 June 2002 she had a balance of just over USS$32,000 in her Wells Fargo Bank Account.  I should add that bank statements for that account commenced with a statement dated 12 July 2002 and I am unaware when the account was in fact opened.

9. It was the wife’s case that in June 2001 she commenced discussions with J Company in relation to possible start dates and specific positions for her in the company.  It was the husband’s case that in or about April or May 2001, the wife had become frustrated because she had not been offered any employment and began pressuring J Company in this regard.  His further evidence was that the company was not prepared to give the wife a position at that time.  The wife was unhappy about this because she felt she had been promised a position.  This was not the husband’s view but in any event, the wife decided she would take legal action against J Company and insisted that he fund her legal costs, which in fact he did.

10. It is not clear to me when this litigation commenced, however, it was common ground that Ireland Stapleton acted on behalf of both parties in connection with claims which were subsequently made by them.  It was also common ground that all legal fees were paid from the husband’s Wells Fargo account.

11. In June 2001 the husband was terminated from his position with J Company.  A few months before this, the husband’s initial and primary contact at the company had resigned and taken up a position on the Board of Directors for a small “start-up” company in the United States, called I Company, and a new senior executive at J Company had been appointed.  It was the husband’s belief that his termination was as a result of the new senior executive wishing to restructure and bring in “his own people” to the position.

12. It was common ground that the reason given by the company was that the husband had contravened sexual harassment laws although the wife added that another reason was that he had been “viewing inappropriate websites’. The wife said in her trial affidavit that she was angry and sceptical about the company’s reasons, however, had no reason to doubt what the husband had told her.

13. In her trial affidavit the wife deposed that J Company “stood by their promise” to reimburse all the wife’s personal relocation expenses from selling her house and car in Germany.  She deposed that the approximate amount was US$84,000 together with almost US$60,000 for the “tax Gross-up Amount”. She has referred to this also in Appendix (B) to her affidavit on p 43.  According to the wife’s evidence some of these payments, for example, those relating to the real estate agency fees and early settlement fees for the German bank, were made before the husband was terminated and the remaining payments due to her were written off against the loan of $170,000 that the husband had received from J Company, and to which I have earlier made reference.  This is not supported by the evidence.

14. Part of Annexure 12 to the wife’s trial affidavit is the “Separation Agreement” with J Company.  It commences at p 225.  The effect of the agreement was that a nett lump sum of US$11,304.78 was to be paid within 10 calendar days following the “effective date” of the agreement.  The agreement was between both parties and J Company.  It incorporated a release of the company by the husband and a limited release of the company by the wife.  The husband and the wife signed the agreement on 24 April 2002.  The Agreement was signed on behalf of the company on 2 May 2002.

15. The nett payment was calculated by setting off certain amounts totalling US$188,540.76 against two personal loans made by the company to the husband totalling US$175,000 together with applicable interest in the amount of US$2,235.98. 

16. The payments to be taken into account were stated to be as follows:

    ·US$50,888.00 representing the loss on the sale of “the [Hutton]’s House” in Germany together with US$37,520.62 to cover the projected tax liability on that amount;  US$5,523 for additional compensation under the lump sum international allowance pursuant to the applicable relocation policy, together with US$4,072.21 to cover tax liability on that amount; 

    ·US$11,961.29 for reimbursement of expenses on the husband’s corporate American Express credit card together with US$1,351.53 for applicable interest and late charges for applicable associated interest and late charges;

    ·US$12,339.87 for additional tax liability relating to amounts already paid pursuant to the applicable relocation policy;

    ·US$40,384.24 in severance compensation to the husband;

    ·US$20,000 bonus payment ;

    ·US$4,500 in earned vacation pay.

17. The agreement recited that the nett payment was to be payable to the order of “[the husband]” and the relevant promissory notes in relation to the two personal loans were to be cancelled and returned to the husband.  Page 223 which is part of Annexure 12 to the wife’s trial affidavit demonstrates that the nett payment of US$11,304.78 was sent by post together with other relevant documents to the husband and the wife on 31 May 2002.  It is common ground that these moneys were paid to the husband’s Wells Fargo bank account.  It was the wife’s case that the funds were required to be paid to the husband because he had a social security number and she did not.  She may be correct.

18. The wife settled her claim against J Company.  Annexure 13 to the wife’s trial affidavit is the Settlement Agreement and Release signed by the wife on 16 July 2002 and signed on behalf of the company on 22 July 2002.

19. The agreement recited that the dispute and/or claim which was to be resolved by the agreement included alleged representations by the company regarding the wife’s employment with it.  The Agreement provided that the company would pay the nett lump sum of US$86,080.34 for the wife’s “relocation fees” with payment to be made directly to a relocation service, A Company.

20. The husband’s evidence in his trial affidavit was that the Settlement moneys were paid as two separate payments into his bank account, as far as he could recall.  His further evidence was that the first payment of about US$45,000 was immediately transferred into the wife’s account and the second payment of about US$40,000 was retained in his bank account and ultimately used to fund the subsequent relocation to Australia.  He was plainly wrong in that, as will be seen.

21. The wife’s evidence was that the husband arranged for the payment to be transferred directly to A Company by J Company rather than into his bank account, accordingly saving all taxation which she claimed or estimated would have been about US$36,000.  She went on to say that that amount would more than cover additional expenses for loan repayments and other expenses and the rest of the award could be used to cover moving costs and other expenses for a planned relocation which I will subsequently discuss.  It was her case that any unused amount from the Settlement funds held by A Company would then be refunded to the husband and would constitute the only taxable amount that he would have to declare.  She did not provide admissible evidence to support that contention.

22. Further background will be given in due course, however, it is convenient to note here that J Company did in fact pay A Company the sum of US$86,080.34.  A Company paid total relocation expenses for the year 2002 of US$44,476.12 and on 20 November 2002 A Company forwarded the amount of US$41,604.22 to J Company, being the balance of the funds which A Company had received.  (See Annexure 21, p 296-300 to wife’s trial affidavit.)  In turn, that sum of US$41,604.22 was paid into the husband’s Wells Fargo bank account on 20 February 2003 and it was then transferred to the wife’s Wells Fargo bank account.  (See p 196 of Annexure 7 to the wife’s trial affidavit – husband’s accounts with Wells Fargo Bank and p 364 of Annexure 32 to the wife’s trial affidavit – wife’s Wells Fargo Bank Account bank statement.)

23. I now return to the events following the termination of the husband’s employment with J Company.

24. In July 2001 the husband obtained employment with I Company as an Executive and he transferred his work visa to that company.  It will be recalled that this was the company to which his previous manager from J Company had moved and it was his case that the position was always to be on a short-term basis and more in the nature of a favour or life line offered by his former manager. It was his case that his employment was terminated in November/December 2001, however, it would appear from p 241 of Annexure 14 to the wife’s affidavit that the effective termination date was 1 February 2002.  His salary was the same as he had received whilst working with J Company.

25. In December 2001 the husband, the wife and the wife’s children holidayed in Australia.  According to the husband arrangements had earlier been made for this trip and before leaving to come to Australia he had been actively seeking alternative employment in the United States.  It is common ground that the husband wished to investigate possible employment in Australia.

26. The wife has alleged that the husband assaulted her during the time they spent in Sydney, which allegation the husband denies.  This is the first of the wife’s allegations of assault.  Hereafter I will note further allegations chronologically but will not discuss them in detail until later in this Judgment.

27. It is common ground that whilst the family was in Australia the husband saw an advertisement in the Sydney Morning Herald for an executive position at a Sydney based University.  He subsequently submitted an application for this job and was later invited to attend an interview at the University.  In April 2002 the husband, the wife and her children, all travelled to Australia and the trip was utilised as a further holiday.  He was offered the position at the University but did not immediately accept it.

28. In or about May 2002 the husband commenced employment with D Company a company in the United States.

29. It was the husband’s case that he did not have a contract of employment and did not receive a wage when he was employed with D Company because the “key people” were engaged on the basis that they were taking a risk and if the company succeeded then they would all share in the benefits.  He did receive reimbursement for business expenses.

30. It was the wife’s case, and I accept, that only the husband was able to be employed, because he had a work visa that could be transferred to D Company.  The wife did not have a work visa and could not work for the company although it is common ground that she did do some marketing work for the company apparently without payment.

31. It was the wife’s evidence and I accept that D Company intended to set up headquarters in San Francisco and the parties would have needed to relocate to that city.

32. I have earlier referred to A Company.  This company was a specialist relocation company and the parties intended to sell their home through the company which would also take care of the arrangements for the move.  Annexure 19 to the wife’s affidavit is a copy of a “Relocation Management Service Agreement” between D Company and A Company, although the copy, as annexed, has not been executed.  However, it is clear that there was a Service Agreement between D Company and A Company, pursuant to which A Company had been authorised to purchase the parties’ home in August of 2002 (see p 295 of Annexure 21 to the wife’s trial affidavit).

1. According to the wife’s evidence D Company signed a contract in which they guaranteed a previously agreed selling price for the parties’ home, which would be paid by A Company to enable the parties to move to San Francisco and purchase a new property.  D Company would cover the loan repayments to A Company until final sale of the parties’ home.  D Company had agreed to pay some relocation costs, however, additional costs were intended to be covered by the parties by means of the funds which J Company had agreed to pay to the wife in July 2002.  It was in those circumstances that the Settlement Agreement between J Company and the wife provided for the funds of just over US$86,000 to be paid to A Company.

2. However, the husband’s employment was terminated at the end of August 2002.  The wife’s application for a working visa was also refused at around the same time.  The husband’s evidence was that his employment was terminated because the company was having financial difficulties, however, the wife deposed in her trial affidavit that he “had yet again been unsuccessful in achieving any new contracts or leads in his position as [an Executive] and was finally sacked by [D Company] …”  Following this D Company would not honour the Service Agreement with A Company and advised the husband accordingly by letter dated 18 September 2002 (see p 295 of Annexure 21 to the wife’s trial affidavit).

Relocation To Australia

1. The parties and the wife’s two children all moved to Australia on or about 8 October 2002.  The husband had accepted the position at a University and had been able to negotiate an increase in the international relocation allowance to AU$40,000.

2. As I have already recorded, on 20 November 2002 A Company paid to J Company the amount of US$41,604.22, representing the balance of the working funds which J Company had paid to A Company in accordance with its settlement with the wife.  Those moneys were ultimately transferred to the wife’s Wells Fargo bank account.

3. On 28 January 2003 the husband and the wife instituted legal proceedings against D Company.  At some time apparently early in 2003 the litigation was compromised on the basis that the husband and the wife would receive an amount of US$6,000 which payment was made to the trust account of Ireland Stapleton.  It is convenient to note here that Ireland Stapleton still holds funds on behalf of the parties.

4. Arrangements had been  made for the parties’ assets in the United States to be sold.  An amount of US$19,000 was paid into the wife’s Wells Fargo account from the sale of a Ford Explorer motor vehicle, the deposit having been made on 1 October 2002.  The wife has deposed in her trial affidavit to the husband having received sale proceeds of another motor car (…) in an amount of US$34,100 and reference to the husband’s Wells Fargo bank statements shows that this indeed took place, however, it was in April 2002, well prior to the parties’ departure for Australia.  These appear to be the only significant assets for which payment had been received prior to the parties’ departure for Australia.

5. The home in the United States was subsequently sold in early 2003 and nett proceeds were paid to the husband.  Another motor car, a Pontiac Firebird, was sold on consignment.  The sale price was US$12,500 and after deduction of certain fees, a total of US$12,250 remained payable.  I accept the husband’s evidence that the full amount was never actually paid.  I note the calculations and sums of money referred to in par 64d of the husband’s trial affidavit and had some difficulty in following them.  On my calculation of the figures set out as being received, an amount of US$11,299 must have been paid and the husband accepted this during cross-examination.

6. It is common ground that the parties’ relationship had been strained for some time and certainly from the time of their visit to Australia over the Christmas period in 2001, although the parties have different versions for the reasons for this.

7. In her trial affidavit the wife deposed that in the period leading up to the departure from America to Australia, both she and the husband were very “stressed” and that the husband was behaving in a “very agitated manner …”.  She went on to say that she did not “want to be with him” any more.  However, she said she had no choice but to follow through with the move to Australia because the husband was “holding” her funds in his account and was refusing to transfer them to her.

8. As will be seen, it was a significant part of the wife’s case that the husband effectively owed her money.  She seems not to regard the funds she had by way of savings at the time as being of any particular relevance.  She obviously regarded those moneys as hers alone.

9. As I have already recorded the move to Australia took place in October 2002.  Just prior to the move the husband withdrew the sum of US$10,000 from his Wells Fargo account.  It was his evidence that US$2,000 was changed into Australian dollars and used to open a bank account in Australia and that the balance was retained by the wife.  He deposed in his trial affidavit that he had asked her to put this money in the bank but their relationship was tense and had been deteriorating and the wife refused.  The wife did not contradict this evidence nor cross-examine the husband about it and I accept his evidence.

10. The husband’s further evidence was that he had savings in his name with the Dresdner Bank account of DM55,349 (as at 18 September 2002), which he equated to AU$45,963.  He had a further sum of US$36,573 in his Wells Fargo Bank account which he equated to AU$43,967.  The wife did not contradict this nor cross-examine the husband about it.

11. The husband’s evidence was that the wife had savings in one of her German bank accounts (as at 31 October 2002) of DM83,414, which he equated to AU$69,269.  The wife did not dispute this nor cross-examine the husband about it and I accept his evidence.

12. The husband also swore that the wife had at least DM30,000 in another German bank account but could not specify the actual amount because he had no statements for the account in question.  The wife did not dispute this nor cross-examine the husband about it.  Nor did she give any evidence which would have clarified this.  I accept that the wife had savings in her German bank accounts of at least DM113,414.

13. The husband also swore that the wife had savings in her Wells Fargo bank account of US$48,642 as at 11 October 2002, which he equated to AU$58,464.  The wife did not dispute this nor cross-examine the husband about it and indeed that amount is shown in the wife’s bank Statement.

14. It is convenient to note here that the wife’s subsequent evidence was that she had received about DM5,000 for superannuation or pension about a year after she resigned from her employment in Germany and that this money was paid into her German bank account.  She also received from her first husband child support of some DM15,000 – DM20,000 while living in the United States of America which was also paid into one of her German bank accounts.  She called it her “transaction account”.

15. The parties lived in rented accommodation when they came to Australia, however, they intended to purchase their own home or apartment.  The wife said in her trial affidavit that the price range of accommodation which she was investigating was between $400,000 to $600,000.  It was her evidence that the parties “intended to use (her) compensation and reimbursements from J Company for a down payment of around $300,000, and (she) wanted to ensure that (they) purchased something quickly, as this would get (her) funds out of (the husband’s) account and secure (her) money in Australia.”

16. When the wife cross-examined the husband about their intention to purchase a home, he agreed that the properties that they were looking at were quite expensive; that one offer had been made which he believed to have been about $500,000; and the purchase price would have been paid by borrowings on mortgage.  As will be seen however, they never got to this point.

17. The husband confirmed that his salary at the University was about $120,000 per annum.  The wife asked the husband whether there was any intention to use “her” funds in Australia and the husband said words to the effect “No, you refused.”

18. I accept the husband’s evidence.  It was quite contrary to the wife’s attitude throughout the relationship that “her” money was hers alone for her to use “her” funds in purchasing a house.

19. It is common ground that almost all day-to-day expenses, including the rental costs of the apartment in far north Queensland were made by the husband from his income from employment.  It was also the case that mortgage instalments had still to be paid on the home in the United States and those payments were also met by the husband until the property was eventually sold.

20. As I have already recorded an amount of just over US$41,600 was paid into the wife’s Wells Fargo Bank account on 21 February 2003, being the balance of the funds J Company paid to A Company in settlement of the wife’s claim and after deduction of expenses paid by A Company on behalf of the parties.  This brought the wife’s balance to US$90,257.78.

21. At around this time it was the wife’s case that the husband “began to get very aggressive, smashing things, shouting and swearing at (her), and repeatedly banging his head on cupboard doors.”  (See p 14 of the wife’s trial affidavit.)  She described his behaviour as extremely erratic and gave examples of it.  She went on to depose to further incidents of violence which she alleged he had perpetrated upon her.

22. It is common ground that the parties’ home in the United States was sold in early 2003.  The husband deposed in his affidavit that nett proceeds of US$24,000 were received and deposited into his Wells Fargo account.  The wife’s evidence was that the proceeds of sale were US$20,000.  Neither party deposed to when the settlement funds were actually received.  It is common ground that the parties had two mortgages secured on the American property, one of which was to Wells Fargo and reference to the husband’s bank statements (Annexure 7 to the wife’s trial affidavit) demonstrates that there were regular repayments to Wells Fargo until 20 February 2003.  At p 198 which forms part of Annexure 7 a deposit to the husband’s Wells Fargo account is recorded for 18 March 2003 in the amount of US$19,355.96.  The description includes reference to land title, amongst other things.  On the balance of probabilities noting that no further debits were recorded against the loan with Wells Fargo, it appears to me that the effective date of settlement was 18 March 2003 and the nett settlement proceeds were just over US$19,350.

23. My conclusion is fortified by the wife’s evidence at p 48 of her trial affidavit which was to the effect that the mortgage repayments only had to be made for four months until the house was sold, although the wife was clearly incorrect when she referred to the departure from the United States of America as being in September 2002.

24. It is common ground that the wife went to New Zealand in April 2003.  I accept that this was primarily for immigration purposes.  The wife’s evidence was that she had been notified that her visa had been approved and that it was necessary to go to New Zealand to get the visas entered in the relevant passports.  It is also clear that the wife utilised this occasion to have a holiday.  Her evidence was that she and the children went to New Zealand for approximately 10 days. 

25. The husband deposed in his trial affidavit that whilst he could not recall the particulars of the funding for the trip, he thought that at least part of it might have been paid for with the US$8,000 cash which the wife had retained when they relocated to Australia.  The wife did not respond to this and there was no cross-examination about it.  It is clear from perusal of the wife’s bank accounts with Wells Fargo that this was not the source of any payment for any of the expenses that she and the children incurred.  It may be, of course, that the wife made these payments from her German account, however, she did not say so and while it is the case that her German bank statements are annexed to her affidavit, they are, as I have already recorded, in German.

26. In any event, whilst the respondent was away in New Zealand, the parties’ furniture arrived from the United States and the husband arranged to rent a house in R while the parties continued to look for a property to purchase.  The unit they had was fully furnished and not inexpensive.  The wife complained that the husband had not even consulted her about the house he selected.  She annexed two emails from the husband to her, giving information about this matter (Annexure 28 to wife’s trial affidavit).  The emails are dated 10 April and 13 April 2003.  These emails appear to be unexceptional and indeed to convey a degree of consideration towards the wife and her children. 

27. In the first email the husband wrote:

    “[The removalists] are being difficult about delivering part of the load, claiming it would be easier to unload everything at once.  It all seems too hard for them.  They are now going to deliver our furniture 23^rd and 24^th (Weds and Thurs) April but will not be able to unpack boxes until following Monday/Tuesday 28^th & 29^th.  There’s a long weekend in the middle.  I’ve tried everything but they won’t budge and claim this is the best they can do.  I’ll be there on 23^rd and 24^th to assist.

    To make sure you, [S] and [K] have somewhere to go, I’ve booked you a two-bedroom apartment at […] in my name.  It’s all paid for via my Visa card.  It’s booked from the 19^th for the whole week with departure on Saturday 26^th.  ….  I might use the camp bed and stay at the house during that week so that it isn’t left empty every night …”

28. In any event the wife deposed that she was not happy about moving to R but could do nothing to change it.  The husband agreed in his trial affidavit that the wife was not happy about the house in R and his further evidence was that she stayed for several weeks at the … Apartments because she refused to move into the house until it was completely set up.  The expenses associated with that stay were met by the husband.

29. The wife deposed in her trial affidavit to moving into the R property at the end of April.

30. According to the wife’s evidence it became apparent to her when she moved to the R property that many of the parties’ belongings were either damaged or missing, with most of those items belonging to her or her children.  The husband agreed that the wife told him that this was the case.  The husband had been the holder of the insurance policy which had been taken out for the purposes of the relocation.  It was the wife’s case that he had insured their belongings for an inflated value and that she was unaware of these arrangements.  The husband disputed this, saying that she was involved in completing the values in the property inventory which was provided for the insurance company.  It was also the husband’s evidence that it was in fact the wife who instigated the insurance claim, given that he believed that all items from the United States had in fact been sent.  As seen, it was he who lodged the application because the insurance policy was in his name, however, his evidence was that he later decided to withdraw it upon being notified by the company that their records suggested there had been no lost or missing boxes.

31. It is not necessary to resolve this difference in the parties’ evidence.  I do note however that they appear to have had very unfortunate experiences with chattels being lost or damaged, remembering the time in Germany and the relocation to the United States of America.

32. It is common ground that the parties separated in early May 2003.  Some of the circumstances of that separation are in dispute.  Each of the parties makes serious allegations about the other.  In broad terms, the husband alleged that the wife threatened to destroy him if he did not continue to support her and the children at the level she expected.  For her part the wife alleged that the husband warned her about talking to anyone about certain personal proclivities which will be mentioned later.  She swore that the husband said that in return he would continue to pay the costs for the house and pay the bills but would continue holding “her” funds in “his” account.  She alleged that he threatened her that if she did not comply, he would report to the immigration authorities that he was no longer prepared to sponsor her and that she and her children would be removed from the country and further that he would not then pay her any of “her” money.

33. On 7 May 2003 an amount of €10,000 from one of the husband’s accounts was transferred to the wife’s German savings account.  The wife’s evidence was that she called the bank and arranged for this transfer. 

34. On the same day a sum of €30,000 was transferred from the wife’s “transaction account” in Germany to her German savings account.

35. It was eventually common ground that both parties retained savings which I will shortly set out.  They also agreed on the conversion rate for the various accounts, be they in Germany or in the United States.  This emerges from the husband’s evidence and is reflected in the written submissions.  For ease of reference I will refer now to the amounts in the accounts in Australian dollars. 

36. The husband retained:

    ·his German savings account of $8,134

    ·his German “transaction account” of $1,526

    ·his Wells Fargo account of $22,597.

    The total of these accounts is $32,257.

37. The wife had and retained following separation:

    ·the balance of her German savings account of $124,656

    ·the balance of her German “transaction account $9,130

    ·the balance of her Wells Fargo Bank account $108,510

    The total of those accounts is $242,296.

38. The husband had listed in par 89 of his trial affidavit the assets which he said he retained following separation.  Included in that was a National Australia Bank account to which no balance was ascribed.

39. In his second affidavit he referred to this earlier affidavit and said that the National Australia Bank account was opened at the time of separation and the funds subsequently deposited into that account were from his post-separation earnings and/or transfers from his German account or the Wells Fargo Bank account.  He deposed that there were no proceeds from this account at separation.

40. In the written submissions filed on behalf of the husband and commencing at p 4 the table of the property retained by the husband and the wife “at / following separation” was set out.  Included as an asset of the husband was a National Australia Bank account with a credit balance of $4,276.  The wife adopted that figure at p 27 of her written submissions.  It is self-evident that submissions do not constitute evidence.  To my mind, the husband’s counsel and the wife were incorrect in this regard.

41. The table contained in the husband’s written submissions also contained a reference to the proceeds of sale of the United States property, noting that US$24,000 was transferred into the husband’s ANZ account “ – paid after separation”.

42. A similar reference was made in par 89 of the husband’s trial affidavit.  In both cases the conversion to Australian dollars was made, with the figure becoming AU$28,850.  This property was also included in the wife’s written submissions.  In my view, and on the evidence, the husband did not receive the sale proceeds after separation.  As I have earlier recorded it is more probable than not that the proceeds of sale were paid into the husband’s Wells Fargo Bank account on 18 March 2003, the nett proceeds being US$19,355.96.  In other words, the proceeds of sale of the United States property were included in the balance of the husband’s Wells Fargo account noted at US$18,797 as at 5 May 2003.

43. The matter is clarified somewhat in the husband’s second affidavit in par 9 which is the same paragraph to which I referred when I made reference to the National Australia Bank account.  The husband said that the “ANZ account referred to (to which the proceeds of the United States property were subsequently paid) was opened some time after separation when (his partner) and (he) obtained (their) current mortgage and was effectively opened as (his) day-to-day operating account in exchange for the National Australia Bank account.  Thus, the proceeds of both accounts at separation were nil.”

1. Dr P holds appropriate qualifications.  From 1990 to 2005 she was a Counsellor at the University.  Prior to that she lectured in psychology.  She had a private practice commencing in early 1992, conducted at weekends and in February 2005 resigned from her position at the University and now works in private practice.  There was no challenge to her qualifications or expertise.

2. The wife first consulted Dr P on 8 April 2004 and in that year Dr P saw her through the University for a total of 12 face-to-face sessions and also had two telephone consultations.  She also saw her on another three occasions in early 2005 and after she resigned her position at the University saw the wife in four further sessions, the most recent being 23 February 2007, as at the time of her report.  That report was dated 1 March 2007 and it was annexed to the wife’s affidavit filed 1 June 2007.  Dr P was shown that report and confirmed its accuracy.  The report refers to a previous letter dated 7 September 2006 which Dr P had written which verified consultations with the wife and which also briefly outlined her assessment of her.  Much of it was repeated by way of background in the later report.  Further, the later report also includes a Table which set out the wife’s symptoms as at August 2006 and as at February 2007.

3. As I have said earlier, the wife said in her trial affidavit that she consulted Dr P because she often needed to have assignment deadlines extended or examinations postponed because of looming Court dates or because she simply could not “focus” on her work.  She also said that her course work was “starting to get backed up”. 

4. Both in her report and in her oral evidence Dr P said that when she first saw the wife she was distressed by “a realisation she had made, and that was that her ex-husband, [the husband], was potentially not the person she had believed him to be.  (The wife) described what she believed to be falsified work and qualification documentation.”  When cross-examined she also said that another matter of concern with the wife was her immigration status which repeatedly arose during consultations until she obtained permanent residency.  Thereafter this did not arise to the same degree. 

5. Dr P confirmed that the domestic violence hearings which spread over January, April and June 2004, and the wife’s subsequent appeal towards the end of that year, were significant stressors for the wife.  On quite a number of occasions, according to Dr P, she assisted the wife in deferring assignments, exams and the like.  This was one of her roles as a University Counsellor.

6. Dr P told Mr Greggery that the level of stress in the wife’s life in April 2004 was high.  The effect of her evidence was that there were many things which she had been keeping to herself and which she needed “to talk through”.  In speaking of the consultation in February 2007 Dr P said that what she saw in the wife was emotional exhaustion.  She agreed she attributed that to a large extent to the legal proceedings.

7. When asked as to the source or cause of the PTDS, Dr P said that this was unusual, because it was not attributed to one event but to a series of events, including the alleged rape and immigration problems.  These matters had never been resolved and accumulated. 

8. Dr P wrote in her second report:

   “In my previous letter of 7^th September 2006 I stated that [the wife] was suffering from severe chronic posttraumatic stress disorder [PTSD] due to alleged death threats, rape, physical assault and the on-going reality of having to deal with legal proceedings which entailed being physically proximate to [the husband].  Given that none of these matters have yet been resolved, (the wife) continues to suffer PTSD. …”

9. Given my findings in relation to the matters relating to the husband’s alleged conduct, Dr P’s assertion that the wife’s condition arises as a consequence of the husband’s conduct is not one which I can accept.

10. It is clear that Dr P accepted the version of events given to her by the wife.  I have found that version to be inaccurate, and accordingly the expression of Dr P’s professional opinion based upon those matters is without foundation.  There has been no other basis shown in the evidence for accepting her opinion in that regard.  In my view, the only basis upon which I can accept Dr P’s professional opinion is that relating to the stress placed upon the wife by the legal proceedings and perhaps the fact that the proceedings themselves involved the wife in being “physically proximate” to the husband.

11. Dr P also said during cross-examination that she anticipated that the wife’s condition would start to improve after this Court case was finished, hopefully to the extent that the wife’s PTSD level would be moderate in about six months.  At that stage, in Dr P’s view, the wife “definitely” could work or alternatively, complete her studies to enhance her qualifications.

12. During re-examination the wife asked Dr P what issues needed to be resolved and Dr P explained that she meant that there needed to be no legal matters outstanding.  She also told the wife that it was extremely important for her to have counselling and trauma treatment.

13. In my view, that prognostication is open to Dr P since it derives from her professional expertise and observations of the wife which do not depend for validity upon her acceptance of the factual allegations made by the wife against the husband.

Section 75(2)(b)

1. The husband was due to commence employment in Melbourne in July 2007.  He was to obtain a salary package of $121,000 per annum, comprising a base salary of $110,000 and superannuation (10 per cent) of $11,000.  According to the terms of employment annexed to his second affidavit the first four months of his employment was to be a probationary period which might be extended by a maximum of three months to give his employer additional time to fully assess his performance. The husband was not at trial able to provide information as to the costs which would be incurred in moving and setting up a new household in Melbourne with his partner.  Arrangements had been made to lease a fully furnished unit for an initial period at a cost of about $600 per week and in the future the husband hoped that a rental property for six to 12 months would be obtained while future and more permanent arrangements were investigated.  In cross-examination the husband said that the property in North Queensland would be rented out, and I assume the rental would be applied towards mortgage and like payments applicable to that property.

2. The husband has a “financial resource” in the sense that his partner has contributed to his support in the past.  In order to move to Melbourne it was necessary for Ms M to resign from her position, however the husband explained that they were confident she would secure alternate employment in Melbourne quickly.  Until she did, however, the husband would be supporting her financially.

3. As a result of my conclusions based on contributions the husband will receive a much larger apportionment of property than will the wife, and he will also retain the financial resource of superannuation. His superannuation entitlements vastly exceed those of the wife, although given his age they will not vest for quite some time as yet.

4. The husband’s partner may have spent some $70,000 from her savings by way of contribution towards the husband’s legal fees and also towards payment of their joint living expenses, including mortgage repayments, whilst the husband was unemployed. Additionally, Ms M contributed $23,000 towards the purchase of the property in North Queensland.  The husband’s case was that he had a “moral debt” to his partner in respect of all these matters.  I accept that this is the husband’s view but I distinguish that very much from any legal liability to repay Ms M.

5. The husband certainly does have a liability to pay legal costs.  The unpaid legal costs were estimated as being between $25,000 to $30,000.

6. There is no question but that the husband has the physical and mental capacity for appropriate gainful employment.  It was submitted on behalf of the husband that there should be caution exercised, given the husband’s history of obtaining but not retaining well paid positions.  I have considered that submission but regard it as too speculative to give any weight to it.  There is another cloud over the husband in that not long before the trial he received correspondence from the Department of Immigration which gave notice of intention to consider the cancellation of his Visa.  He has sought legal advice about this.  The thrust of that advice was that further instructions needed to be obtained before the migration agent could advise the husband on the prospects of retaining his permanent residency status, however, based on the experience of applications of this nature, it was estimated that his prospects of success were about “50/50”.  The migration agent intended to make detailed submissions to the Department and advised the husband that it could take up to 12 months before the Department determined the matter.  If the decision was that the husband’s Visa was to be cancelled he would have 28 days from the date of the decision to leave the country or make application for a review.  In all those circumstances I cannot take this matter any further, however, as seen, I do note there is a cloud over the husband’s future.

7. I have already noted the wife’s income which derives solely from a Centrelink pension and family allowance.  Her son earns on average $100 per week.  The wife’s expenses as set out in her Financial Statement substantially exceed her income.  She is clearly living beyond her means and had expended some $230,000 in savings between the date of the separation and the date of the trial.  As I have said elsewhere, she has not lived frugally.

8. As a result of my assessment based on contributions the wife would receive much less than the husband in a property settlement and her superannuation is vastly inferior in quantum to that of the husband.

9. In Annexure 8 to her affidavit the wife has set out her curriculum vitae.  In 1983 she obtained in Scotland a Bachelor of Science degree.  In 1985 she obtained what she described as the equivalent of a post-graduate diploma in management and in 1986 obtained a post-graduate diploma in research.  In 1987/1988 she obtained a German language diploma and certificates.  The employment history which the wife has provided would indicate that she was in employment following her graduation from University in Scotland, England and Germany.  It would seem that she continued to work before and after her two children were born.

10. The wife obtained further workplace training in 2003 after moving to live in Australia and in January 2004 she commenced her Masters which she did not complete, having stopped attending University in about November 2004.  The wife also set out that she obtained in 2005 “[…] Certification” which she described as a supplementary qualification to teach English as a second or foreign language.  She also obtained Certification entitling her to work in real estate in April 2006.

11. To all intents and purposes the wife has been out of the paid work force since leaving Germany in December 2000.

12. The wife’s capacity to work must be noted as being subject to the fact that she suffers from PTSD however on the basis of Dr P’s evidence she should be able to recommence studies or gain employment about six months after the conclusion of this case.  In my view, she would then have the physical and mental capacity for appropriate gainful employment.  It does not seem to me that her children, given their ages, would limit her to any significant degree in employment. 

Section 75(2)(c)

1. This subsection is not relevant, given that there were no children of the marriage.

Section 75(2)(d)

1. Each party has a duty to support himself or herself and the wife has a duty to maintain her children.  I have already touched on the costs involved in these matters, noting the same are set out in their respective Financial Statements with additional information being provided in the husband’s second affidavit.

2. I am unable to determine on the evidence whether the wife is entitled to seek a contribution towards the financial costs of her children from their father.

Section 75(2)(e)

1. Neither party submits that this sub-paragraph is relevant and I agree, save that the husband could be seen to have a moral responsibility to support Ms M.  I have referred to this above and have taken care not to double-count this matter.

Section 75(2)(f)

1. The husband has an entitlement to superannuation to which he will not be able to gain access for a significant number of years.  The parties agree that the husband’s superannuation is worth $189,600. The wife also has superannuation entitlements of about $1500.  She will not be able to gain access to that superannuation for a significant number of years.

2. As I have already recorded the wife receives a Centrelink pension and Family Allowance, the total of which is $519 per week.

Section 75(2)(g)

1. The parties were able to enjoy a high standard of living prior to separation.  It is usually the case that, regrettably, the standard of living enjoyed prior to separation drops following separation, because the income which could support one household is then required to be applied to two households.  Such a situation has arisen in the present case, compounded by the fact that the wife has not been in employment since separation save for a very short period of time.  Whilst the husband left the relationship with the very significant “asset” of a substantial earning capacity, he was not able to exercise that capacity for significant parts of the period of time which has elapsed since separation.  It must also be recalled that he left the relationship with considerably less savings than those retained by the wife.

2. The current situation is that the wife’s savings have been substantially depleted and it is probable that her standard of living now is not as comfortable as that of the husband.  However, it must also be taken into account that the husband’s standard of living is supplemented by the efforts and financial contributions of his partner, and this was particularly important during those periods of time when he was without employment.

Section 75(2)(h)

1. The wife’s evidence was that in 2003 she had planned to move to Scotland where she would study for a Masters degree.  She said her plan was ultimately to work as a professional and to do some free lance work.  That ambition has not been realised.

2. At the end of January 2004 the wife commenced an 18 month full-time post-graduate education degree at University with the intention of teaching secondary level mathematics and information technology.  She withdrew from those studies before the end of that year.

3. The wife has contended in her written submissions that spousal maintenance should be paid for a period of at least two years, which would enable her to complete a course of training.  The wife already has significant qualifications and she has not provided any evidence as to what further qualifications she would seek to obtain and/or as to how any such qualification would increase her earning capacity or to obtain an adequate income.

Section 75(2)(ha)

1. This sub-paragraph is not relevant.

Section 75(2)(j)

1. I have nothing to add to the discussion which I have already set out relating to the wife’s contributions throughout the parties’ relationship.

Section 75(2)(k)

1. The parties’ relationship lasted approximately four years.  The marriage itself resulted in both parties leaving Germany, initially for the United States and subsequently for Australia.  The practical effect of this was that the wife could not work in the United States in paid employment, nor could she work in Australia until permitted to do so by immigration rules.  The flow on effect from that is that the wife has been not employed save for a period of five months.  There has been an obvious effect upon her earning capacity.

Section 75(2)(l)

1. I have already considered this in part pursuant to s 75(2)(b) and I must exercise care not to double count the impact of the wife’s circumstances of her primary care for her children.  However, the ages of the children must also be taken into account.  I note that this sub-paragraph does not give a parent an absolute right of choice in his or her role.  It is one, and only one, of a number of factors to be taken into account and must be weighed with the other factors (see Heeks (1980) FLC ¶ 90-804).

2. I also note, that whilst the wife has referred on a number of occasions to her obligations in respect of her children, she did not place any reliance on this sub-paragraph.

Section 75(2)(m)

1. The wife has not re-partnered but, as seen, the husband has.  I have sufficiently discussed the financial circumstances relating to that cohabitation elsewhere, although I have to say the evidence was not fulsome.

Section 75(2)(n)

1. I have already set out the effect of an order under s 79 of the Act based only on contributions.

Section 75(2)(na)

1. There were no children of the marriage and the question of child support is therefore irrelevant.

Section 75(2)(o)

1. This sub-section enables the Court to take into account any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.

2. As foreshadowed, I propose to take into account under this sub-section the husband’s contribution to the wife’s children.  The reason for doing this was explained in Robb (supra).  In that case the Full Court held that in considering whether the justice of a case requires some act done by a party to be taken into account under this sub-section, the Court should have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act and also, perhaps, to ordinary notions of justice and equity between the parties.  As was the situation in Robb, it is the situation in this case that the wife had a legal duty to maintain the children of her prior marriage, whereas the husband did not have any legal duty to maintain them at any time during the marriage.  Therefore, in contributing to the support of her children the wife has merely honoured a legal obligation which she owed to them, whereas the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations.  Accordingly, in my view, the justice of this case requires that the husband’s contribution should be taken into account under this sub-section, however, the same cannot be said of the wife’s undoubted contribution towards her own children.  When she made her contribution, the wife was not discharging or assisting to discharge any legal obligation of the husband.

3. The additional matter to be taken into account here is the husband’s financial support of the children.  He did not make the only financial contribution towards their support as I have earlier discussed.  However, his contribution was substantial and it probably exceeded the financial support provided by the wife for her children commencing at the time the parties moved to live in the United States.

Section 75(2)(p)

1. This sub-section is not relevant.

Conclusion as to s 75(2) Matters

1. I have concluded that an assessment of all the above factors which I have discussed favours the wife and the result should be an adjustment in the wife’s favour of 20 per cent.  This would mean that the wife would receive or retain non-superannuation assets totalling 55 per cent and she would be entitled to a total of 20 per cent of the superannuation.

Section 79(4)(f) and (g)

1. These matters are not relevant.

Is the Outcome Just and Equitable?

1. The effect of the orders would be that the wife would receive or retain non-superannuation assets totalling $64,799.90 (55 per cent x $117,818).  Her entitlements to superannuation would be $38,220 (20 per cent x $191,100).  Her total entitlement is therefore $103,019.90.  As a percentage of all assets (superannuation interests and non-superannuation property) this would represent approximately 33.35 per cent.  She already has non-superannuation assets of $19,000 and superannuation valued at $1500, a total of $20,500 and she would therefore need to obtain assets or a payment of a further $82,519.90.  This could be partly achieved by the wife retaining the totality of the funds in the Ireland Stapleton Trust Account ($8,750) which would leave an outstanding amount of $73,769.90.

1. The wife had sought a superannuation splitting order with a base amount of $50,000.  The husband opposed that course of action, however, I think it is an appropriate course to adopt.  By doing this the payment to be made by the husband would be a little over $23,700, which in all the circumstances I would round up to $24,000.  This would, to my mind, provide an appropriate “mix” of the parties’ assets.  The husband should have three months to make arrangements to pay this amount, noting that he will be left with the liabilities which I have already noted in the Table of the parties’ assets and liabilities and with the further liability for legal costs.  The husband would otherwise retain his equity in the North Queensland property and the modest savings to which I have already referred.  Above all, however, he retains his substantial earning capacity which obviously exceeds that of the wife.  Save as noted, he also retains his interests in superannuation. 

2. Looked at in that light, I am satisfied that the apportionment of the property of the parties comprising both superannuation and non-superannuation assets would provide a just and equitable result.

The Agreement between the Parties

1. The wife had earlier sought to enforce this Agreement and whilst she did not press for it in her written submissions her application in this regard was never formally abandoned.  For completeness I will deal with it.

2. The Agreement was dated 22 August 2003 and it is Annexure 40 to the wife’s affidavit.  It was not complete in that Appendix “A” which was said to show the division of household items and belongings was not annexed.  In broad terms, it provided for the husband to pay the wife British £100,000 over a maximum period of 75 months, by nett monthly payments.  The Agreement also provided for the continued payment by the husband of rental costs and all reasonable living expenses.  The wife was to retain all the funds in her own bank accounts whether in Australia or overseas.  It will be recalled that the wife’s savings were just over $242,000.  The parties did not file proposed consent orders to give effect to the Agreement.

3. It is clear that the Agreement is not a binding financial agreement within Part VIIIA of the Act, given that it does not comply with the legislative requirements. Had it been so, I would have declined to enforce it and would, if I had been asked, set it aside, given the circumstances in which I have found the husband executed it.

4. I have earlier referred to Woodland & Todd. It is worthwhile repeating that there is no threshold test imposed upon the Court to determine whether an earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force, before embarking upon the exercise under s 79 of the Act. It should also be noted that the earlier agreement should be considered as an indication of what the parties may have regarded as just and equitable at the time, however its provisions are to be given effect only if they coincide with an order which is just and equitable according to s 79 of the Act at the time of the hearing.

5. The terms of the Agreement by no means coincide with the order which in my view is just and equitable according to s 79 as at the date of the hearing, and I would therefore decline to give effect to the provisions of that earlier agreement.

Spousal Maintenance

1. I have already referred to Bevan’s case which set out the test to be applied in considering an award of spousal maintenance. 

2. The test was restated more recently by Coleman J in Saxena (2006) FLC ¶ 93-268. His Honour was determining an appeal against orders made by a Federal Magistrate. His Honour summarised the steps to be taken in par 39 of his Judgment, being:

   ·    To what extent was the wife able to support herself?

   ·    What were the wife’s reasonable needs?

   ·    What was the capacity of the husband to meet an order, if one was warranted?

   · If all these matters were resolved in the wife’s favour, what order would be reasonable having regard to s 75(2) of the Act.

3. I note that the Court is required to take into account pursuant to s 75(2)(n) the terms of any order made or proposed to be made under s 79 in relation to the property of the parties.

4. There is no doubt in my mind that the wife has “crossed the threshold”.  She is presently unable to obtain appropriate gainful employment because she suffers from PTSD.  She is therefore unable to support herself adequately.

5. The wife’s income derives from social service benefits.  It was permissible to take those payments into account in the property proceedings pursuant to s 75(2)(f).  However, this sub-section is subject to s 75(3) when determining maintenance proceedings and I am obliged to disregard the wife’s entitlements.

6. I now turn to consider the wife’ reasonable needs.  The primary source of information for this is the wife’s Form 13 Financial Statement filed 9 March 2007.  It is clear from that document that she has incorporated a number of expenses for the children.  She does not give any separate information as to her own needs and expenditure.  Some of the expenditure claimed in Part N of her Financial Statement could not be described as “reasonable”.  I refer here to entertainment/hobbies claimed at $100 per week; holidays claimed at $100 per week; and clothing and shoes claimed at $100 per week.  If those latter expenses include claims for the children then it would perhaps be explicable. 

7. The wife’s personal expenditure noted in Part G of the Financial Statement includes rent of $400 per week; insurance for house contents of $10 per week; car insurance of $9 per week; and motor vehicle registration of $7 per week.  Those expenses also, at least in part, make provision for the children.

8. The total amount of expenditure noted by the wife was $1,323 per week.  For reasons already given that amount should be immediately reduced by the sum of $200 being the amounts claimed by the wife for entertainment/hobbies and holidays.

9. The wife has an obligation to support her children, however, the husband does not.  The fact that the wife is meeting her obligation to support her children could not be said to be a necessary element of the amount of support she needs for herself (see for example Stein (2000) FLC ¶ 93-004).

10. The difficulty I have is to try and establish what expenses are referable to the wife’s children.

11. I could adopt a very pragmatic approach by dividing the reduced expenses by three, noting that they covered expenses for a household which involves three people, two of whom are teenagers.  That would result in an amount of $374 per week being referable to the wife’s expenses and that would provide a very “rough” guide.

12. Alternatively I could look at published research concerning child maintenance, determine the amount of child maintenance, and deduct that from the revised amount expenditure which I have noted above.

13. The Australian Institute of Family Studies provided and published research on the costs of children.  Two approaches have been utilised over the years by the courts.  One is called the Lovering approach (“basket of goods”).  The other is known as the Lee approach (“expenditure survey”).  Each approach provides a Table.  The Full Court said in Streets (1994) FLC ¶ 92-509 that the Lee scale provided a more accurate guide to the costs of children, however, as the Full Court also noted, the Lee scale is based upon a one child, one income family receiving $611 gross per week (the average weekly earning figure at that time). It is not sensible therefore to simply to double the figure where two children are concerned as the costs would be less in such a case.

14. There is a further difficulty in that The Australian Institute of Family Studies no longer publishes updated figures for either of the Tables.  CCH has provided an updated scale based on AWE figures, the most recent of which was for the February 2007 quarter.  That would indicate that the costs of an 11-13 year-old child would be in the order of $357 per week.  As seen, I cannot simply double that figure, although in the circumstances of the present case when the two children are of different genders and the older child is 15, this approach would possibly be more acceptable.  Approaching the matter as best I can on the available evidence, in my view I could safely conclude that the expenses of both children would be at least $600 per week, leaving the wife’s proportion of the total revised expenses at $523 per week.  That however, does not take into account the fact that the wife’s son earns $100 per week, according to the information provided in the wife’s Financial Statement.

15. As I have said, I must do the best I can on the available evidence, and having compared the two approaches which I have noted above, I feel comfortable with an assessment of the wife’s reasonable needs as being about $400 per week.  I repeat however, this could not possibly be seen to be a scientific or indeed a desirable approach to be taken in spousal maintenance cases; it is the only approach open to me on the basis of the evidence which has been put before the Court.

16. I now turn to consider the husband’s capacity to meet an order, should one be made. Again, I have difficulties.  At the time the husband’s Financial Statement was filed on 26 April 2007 he was not employed, and his partner was.  Since he became unemployed in about November 2006 the husband’s partner financed all living expenses including mortgage repayments for the husband’s household.  As seen, the husband obtained employment shortly prior to the hearing, however, his partner had to resign from her employment in order to accompany him to Melbourne where the husband was to take up his job.  Until such time as Ms M obtained employment, the husband would be in a position where he would have to pay the majority of costs of the household, unless Ms M was to contribute from capital. I am unaware of what capital Ms M has.

17. Section 75(2)(e) of the Act requires the Court to consider the responsibility of a party to support another person, and moral duties have been considered relevant under this sub-section (see Soblusky (1976) FLC ¶ 90-124; Axtell (1982) FLC ¶ 91-208). The Act itself does not state whether a “first” husband or wife has priority over a “second” husband or wife or de facto partner in a claim upon the resources of a person against whom maintenance is sought.

18. In the present case, the situation in respect of Ms M is speculative, given firstly that she did not give evidence at the hearing, but more particularly because it was unknown when or if she would be able to obtain employment in Melbourne.

19. The evidence which was put before the Court was that the house in North Queensland would be rented out, however, the rental payment was, and understandably so, not known at the trial.  It is clear from the husband’s Financial Statement that the mortgage payment was $325 per week.  He also noted expenditure of $170 per week for rates and unit levies.  That to my mind seems unusually high. 

20. The husband’s income from his new job was shown to be $110,000 per annum as a base amount, but before tax.  It is fair to infer that tax of at least $40,000 per annum would be deducted which would result in a nett weekly payment of about $1,340.

21. I propose to deal with the expenditure noted in the husband’s Financial Statement by taking into account his legal liability to pay at least one-half of the mortgage; and his obligation to pay one-half of the insurance for the house and contents and one-half of the public liability insurance.  Those amounts would total $180.50 per week.  The husband’s obligations to pay for insurance on his motor vehicle;  registration costs of his motor vehicle;  hire purchase or lease costs for his laptop computer;  personal loan repayments;  and credit card payments total $238 per week and it would be appropriate to take this expenditure into account as well.  That would bring what I could describe as the husband’s fixed expenditure to $418.50.  That of course does not take into account what, if any, money by way of rental for the North Queensland property might be received.

22. In his Financial Statement the husband also set out in Part N average weekly expenses for himself.  Those total $524.  Of the amount claimed certain deductions could be made in my view.  These would be for house repairs; holidays; gardening/lawn mowing; cleaning; repairs for furnishings and appliances; books and magazines; and gifts.  That would reduce the amount claimed to $381.  The grand total of expenditure would be $799.50 per week.  However, that does not take into account rental costs in Melbourne and the husband’s responsibility there would be at least one-half, namely, $300 per week.  The grand total would therefore rise to $1,099 (rounded).

23. On those calculations the husband would have a disposable income of about $241 per week.

24. At this stage I pause to consider the orders which will be made by way of alteration of interests in property.  The husband will be required to pay to the wife the sum of $24,000.  He has significant liabilities which were set out in the Table of the parties’ property, liabilities and resources, together with a further liability for legal costs.

25. Having regard to all the above matters I have determined that the husband should contribute towards the wife’s support in the sum of $150 per week for one year. I have determined the period of time having had regard to Dr P’s evidence.  Whilst she expressed the view that the wife would be able to obtain employment or alternatively to recommence her studies about six months after this case had concluded, that does not of course mean that the wife would immediately obtain employment. In my view, that additional period of six months should be allowed to the wife.  The evidence does not persuade me that the wife should be entitled to receive maintenance for any further period of time. Whilst she has expressed a desire to return to studies, there is no evidence as to what those studies might be or as to how they might enhance her earning capacity.

Conclusion as to Spousal Maintenance

1. For all those reasons an order for spousal maintenance in the amount of $150 per week in the wife’s favour for a period of one year will be made.

Final Observations

1. I suspect that both parties will be disappointed at the final outcome of these proceedings.  I can assure them that I listened carefully to their evidence and read and reread their affidavits and written submissions.  I have not found it necessary to refer to each and every matter that was raised, but the significant matters were taken into account.

2. With these proceedings finally at an end it is to be sincerely hoped that the parties will be able now to put the past behind them and look to the future.

I certify that the preceding five hundred and forty-three (543) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate 

Date:  14 December 2007