I and I - [2004] FMCAfam 203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

I & I

[2004] FMCAfam 203

FAMILY LAW – Property – global or asset by asset approach – long marriage – focussing on one asset only has the potential to do a grave injustice – global approach applied – wife asserts that through effluxion of time husband tacitly relinquished his interest in former matrimonial home – no actual or implied agreement to abandon interest in the home – wife claims Kennon adjustment – nature of redundancy – difficulty with formulaic apportionment of redundancy entitlement pre and post separation discussed – evaluation of contributions – future needs.

Family Law Act 1975

Lee Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335

Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC92-877

Tuck and Tuck (1981) FLC 91-021
McMahon and McMahon (1995) FLC 92-606
Norbis v Norbis (1986) 161 CLR 513
Zyk v Zyk (1995) FLC 92-644
Quinn (1979) FLC 90-677
Danielan v Danielian [2003] FamCA 473
Brown v Green (1999) 25 Fam LR 483
Harris (1991) FLC 92-698
Neneke (1996) FLC 92-698
Judkins and Santamaria [2003] FamCA 618
Kennon (1997) FLC 92-757
Jones v Dunkel (1959) 101 CLR 298
Farnell (1996) FLC 92-681
Weir v Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Junti (1986) FLC 91-759
Mezzacappa (1987) FLC 91-853
Jenkins v Livesey (1985) 1 All ER 106
Luciano (2000) FamCA 401
Townsend (1995) FLC 92-569
Kennon (1997) FLC 92-757
Burke (1993) FLC 92-356
Woodcock v Woodcock 1997 FLC 92-739
In the Marriage of Dupont (3) (1981) FLC 91-103
Candlish and Pratt (1980) FLC 90-123

Applicant:

N I

Respondent:

D I

File No:

SYM403 of 2002

Delivered on:

6 May 2004

Delivered at:

Parramatta

Hearing date:

5 and 20 April 2004

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Autore

Solicitors for the Applicant:

Autore & Associates

Counsel for the Respondent:

Mr G. Roberts

Solicitors for the Respondent:

Philip Lewis

ORDERS

Within three months of the date of these orders the wife pay to the husband the sum of fifty five thousand three hundred and forty nine dollars ($55,349.00).
Simultaneously upon compliance by the wife with Order 1 the husband shall do all acts and execute all documents as are necessary to transfer to the wife the whole of his right, title and interest in (“the property”) situate at and known as the Oak Flats property.
In the event the wife fails to comply with Order 1 the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate and known as
the Oak Flats property to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale proceeds of the sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale in respect of the matrimonial home.
(b)45 per cent of the balance to the wife, from which the wife shall pay any outstanding rates.
(c)Balance then remaining to the husband from which he shall pay the wife an adjusting sum of $104,151.00.
In the event that the property has not been sold by or before a date three (3) months from the date Order 3 becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:
(a)The auctioneer shall be a real estate agent;
(b)The reserve price shall, unless agreed upon by the parties, be as proposed by the Auctioneer.
(c)Upon completion of the sale the proceeds shall be distributed in accordance with Order 4.
All exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
Any application for costs to be listed by arrangement with my associate within one month.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM403 of 2002

N I

Applicant

And

D I

Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings for the adjustment of property pursuant to s.79 of the Family Law Act 1975.

The applications

N I (“the husband”) filed an application for final orders in the Family Court of Australia at Sydney on 17 September 2002. After a conciliation conference on 25 June 2003 the proceedings were transferred to this court. The husband asks that the former matrimonial known as the Oak Flats property is sold and the proceeds divided equally between the parties. During closing addresses the husband’s solicitor indicated that the husband agreed that the wife should have the opportunity to acquire his interest in the home before its sale is ordered.
D I (“the wife”) filed her response on 23 March 2003. At trial she abandoned her application for a superannuation splitting order and for spouse maintenance. The wife sought an order that the husband transfer to her his interest in the former matrimonial home and pay her costs of the proceedings.

Short history

The husband was born in Macedonia in about 1951.
The wife was born in 1953, also in Macedonia.
When the husband was 19 years old, he migrated to Australia with his family. He returned to Macedonia in early 1974.
The parties were married at Strumica on 2 June 1975.
The parties migrated to Australia in September 1974 and both obtained Australian citizenship on 4 November 1978.
There are two children of their marriage. V I who was in 1976 and A who was born in 1977.
The parties separated on the first occasion in mid-1982.
On 5 July 1983 child maintenance and custody orders were made in the wife’s favour at Wollongong Court of Petty Sessions.
The parties resumed cohabitation in May 1984 and resided together until they finally separated on 17 March 1993. At separation the wife and children remained in the former matrimonial home.
In 1994 the husband commenced cohabitation with his current partner, M N at her home in Warrawong.
In 1997 the wife returned to Macedonia where she lived until her return to Australia on 17 April 2002.
On 17 December 2003 a Decree Nisi was ordered, which decree became absolute one month and one day later.
There are no current orders.

The hearing

The applicant husband relied upon the following:
·His affidavit sworn 17 March 2004 and his oral testimony.
·His financial statement sworn 17 September 2003.
·Affidavit of M N sworn 25 September 2003 and her oral testimony.
·Affidavit of V I sworn 17 March 2004 and his oral testimony.
·Affidavit of F B sworn 17 March 2004. This witness was not required for cross-examination and I accept his testimony.
·Affidavit of Dr James Heiner sworn 19 March 2004. This witness was not required for cross-examination and I accept his testimony.
·Affidavit of Max Bell sworn 19 March 2004. Mr Bell valued the former matrimonial home. Because the valuation of the property was agreed the court was not asked to consider his testimony.
The respondent wife relied upon the following:
·Her affidavit sworn 11 December 2003 and her oral testimony.
·Her financial statement sworn 11 December 2003.
Both parties tendered documents that became exhibits.

The issues

The primary issues are these:
·Whether the parties lived apart between mid 1982 and mid 1984.
·Whether the husband satisfied his obligation to give full and frank disclosure of relevant matters.
·If he did not give full and frank disclosure, the consequences of his failure to do so.
·Whether funds received by the husband post separation should be notionally added into the asset pool?
·Whether the wife has a significant relationship that she failed to disclose?
·Whether the proceedings should be determined using an asset by asset or global approach?
·The effect of the husband waiting nine years after separation before commencing the proceedings.
·The parties comparative financial futures.

Relevant law

The approach to the determination of an application under section 79 is well established by authority In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595 the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in section 75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
It has been necessary consider whether the court should approach the assessment of the parties’ entitlement using a global approach or the asset by asset approach. The global approach involves the division of the parties’ assets on an overall proportion of the global view of the assets. Tuck and Tuck (1981) FLC 91-021. The asset by asset approach involves a determination of the parties’ interests in individual items of property. McMahon and McMahon (1995) FLC 92-606. In Norbis v Norbis (1986) 161 CLR 513 the High Court held that either approach is legitimate, and that in some cases either approach may be adopted in part or in whole. An examination of the reported case reveals that the global approach is the generally preferred approach and the approach most frequently applied. Zyk v Zyk (1995) FLC 92-644. The rationale for its predominance is identified in the following passage taken from Norbis v Norbis supra at p.75,168.
"Although it is natural to assess financial contributions under sec. 79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as home maker and parent either by reference to the whole of the parties’ property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an “asset-by-asset” basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient.” per Mason and Deane JJ
The asset by asset approach has been adopted in those matters where the marriage is of short duration and during which the parties have strictly divided and kept their own assets separate from each other. McMahon supra. An apparent distinction, even when these two features apply is the importance of s.75(2) factors, including the presence or absence of children of the marriage. See Quinn (1979) FLC 90-677 and Kerr (Full Court of the Family Court) 11 August 1995 (unreported).
This issue arose again recently in Danielan v Danielian [2003] FamCA 473. There the marriage lasted two years. At the time of marriage the wife had a share portfolio and the husband had an investment apartment. The wife contributed $304,000 and the husband contributed $254,000 towards their home. As well as being responsible for her own mortgage the wife contributed a significant sum of money towards meeting the husband’s obligations under his loan for the purchase. She had also provided him with money prior to the marriage for various expenses. By the end of cohabitation the wife’s share portfolio had significantly depreciated, whilst the husband’s apartment had appreciated. Le Poer Trench J, assessed the parties contributions on a global basis, ordering that the home be transferred to the wife and that she take responsibility for the mortgage. As the home had increased in value by approximately $300,000 the wife was left with assets worth around $600,000. The husband appealed. Counsel for the husband contended that an asset by asset approach was the proper approach. It was submitted that justice would be best served by looking at the parties’ contributions to their joint ventures and that otherwise the profits and losses of their separate investments should lie where they fall. In contrast the wife’s counsel submitted that the court should adopt a global approach and that, the wife having contributed more to the marriage, should receive about 75% of the pool.
The Full Court of the Family Court stated that the distinguishing feature in this case was that the losses incurred by the wife happened entirely within the course of the marriage and there was no finding that she had deliberately contrived to dissipate or minimise her assets. Their Honours referred the decision of the Full Court in Brown v Green (1999) 25 Fam LR 483 where it was noted that absent the application of waste principles it would be just and equitable to expect spouses to share the brunt of a loss that befell only one of them during a short marriage. Their Honours then cited the cases of Harris (1991) FLC 92-698 and Neneke (1996) FLC 92-698 and stated:
“…the task of the court in proceedings under s79 is not akin to an accounting exercise. The task is to examine the facts of each carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions. By and large marriage is a joint venture where parties can expect to buffer each other from the winds of misfortune that blow during the course of their relationship. The degree of the buffer may depend on how much individual sailing they do without consultation or indeed contrary wishes of the other. But there can be no certain answer to how much that should be when applying s 79 principles.” (at par 49)
The Full Court stated that in this case it was appropriate to make a preliminary assessment on an asset by asset basis, then make a global check to ensure any proposed distribution attributed appropriate weight to the various contributions.

The assets and liabilities as at the date of hearing

The parties reached agreement as to the value of most assets and the quantum of liabilities.
I find that the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table:

Assets	$
The Oak Flats property (Joint) (Agreed)	290,000
City Coast Credit Union (W) (Agreed)	6,537
Commonwealth Bank Savings Account (W)	13,710
City Coast Credit Union (H) (Agreed)	15,000
St George Bank (W) (Agreed)	95
6,630 BHP Billiton Shares (H) (Agreed)	79,228
1997 Ford Falcon (H) (Agreed)	13,500
1992 Ford Laser (H) (Agreed)	2,500
Furniture and household effects (W) (Agreed)	5,000
Boat (H) (Agreed)	30,000
Paid legal fees (H) (Agreed)	11,690
Paid legal fees (W) (Agreed)	18,000
Total non superannuation assets	485,260
Superannuation
AMP Retirement Savings (W) (Agreed)	2,831
BHP Super Fund (H) (Agreed)	152,041
Transfield Superannuation (H) (Agreed)	3,431
Total superannuation	158,303
TOTAL ASSETS	643,563
Liabilities
Australian National Credit Union (H)	19,507.33 [1]
TOTAL LIABILITIES
NETT ASSETS as at the date of hearing	624,055.67

[1] Exhibit U

Both parties’ entire superannuation is preserved until each reaches their applicable preservation age and satisfies the conditions of release (usually permanent retirement from the work force). The values agreed are gross values and do not take into account taxation of the superannuation benefits. Taxes are payable when a superannuation benefit becomes payable. At this time it is not possible to quantify the amount of tax that will be levied. The amount depends on many factors, including maximum benefit limits, pre 1 July 1983 service, age at receiving the benefit, marginal tax rate after retirement to identify but a few. I infer that because of these uncertainties I have no evidence about what any tax liability might be. As the husband will take the majority of the superannuation this is more of an issue for him. Clearly he faces a larger tax assessment than the wife will. Because there is no evidence of what any tax liability may be, I do not include any notional tax liability for either party.
Both parties have paid legal fees. They agree that the amounts paid should be added back into the asset pool. See Farnell (1996) FLC 92-681.
Both parties had a clear obligation to make full and frank disclosure, which means that they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said at 79,593: “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make full and frank disclosure of their financial affairs.” See also Junti (1986) FLC 91-759 and Mezzacappa (1987) FLC 91-853. And further on: “Irrespective of any obligation created by the Family Law Act or the Family Rules that we have identified, in our opinion the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to simply adhere to the obligations specified by the rules of court. If the relevant rules are deficient in identifying an aspect of a party's financial circumstance then this is not a basis for a plea that there was non-disclosure because the rules did not identify an aspect of a party's circumstances that may be relevant.”
In the matter of Luciano (2000) FamCA 401, O'Ryan J summarised the principles that emerge from these cases as follows.
·In proceedings in the Family Court in relation to financial matters, there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.
· The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party.
· The obligation is not created by the rules or the practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled.
· If there is a deficiency in the practice adopted for the purpose of making such a disclosure, mere compliance with the requirements of the relevant rules if deficient, is not enough.
· If there is non-disclosure in the relevant sense then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters.
·A finding of non-disclosure may in appropriate cases, depending on the circumstances, result in the other party being granted without more, the relief sought.

These principles are well known. Immediately after he took voluntary retirement, the husband commenced working for Transfield. In addition to his standard forty-hour week, the husband says that he, “works overtime very frequently”[2]. The husband deposits his salary into a City Coast Credit Union account[3]. This reveals that by 4 July 2002 he had $41,114.32 savings. During the following four months the husband deposited approximately $13,150 salary into the account. Notwithstanding the additional payments, the account fell to $5,445 by 2 November 2002. It is the wife’s contention that the husband deliberately diminished his savings so that he need not fully reveal his real financial situation. Clearly irritated by being questioned about the disposition of this money, the husband explained that, “I earn it, I spend it. I enjoy myself”.
[2] Paragraph 50
[3] Exhibit F
For years the parties son has relied on his father’s financial support. In 2001 the husband gave him $15,000; in 2002 $10,000 and a further $10,000 in 2003. He also gives him small amounts from time to time. V I used the 2003 money for a holiday and part of the moneys advanced in 2001 was spent acquiring a car for $12,000. As well on 12 July 2002 the husband paid $5000 for V I to complete training as a security guard. Whilst I accept that the husband may not recall withdrawals for $1,000, I do not accept that he cannot recall $10,000 withdrawn on 26 July 2002, $8,000 withdrawn on 30 July 2002 and $8,000 withdrawn on 8 August 2002. These transactions took place over only a few days and total $26,000.
In late October or early November 2002 the husband purchased a boat for $30,000. He paid a deposit of $5,000 (probably part of the $26,000 to which I have made reference) and borrowed $25,000 from the Australian National Credit Union Limited to complete the transaction. Although the husband did not disclose this transaction, in her affidavit-in-chief his defacto partner did. M N described the boat as belonging to the husband. Combined with the fact that the loan is taken in his sole name I am satisfied that the husband alone owns the boat. The wife’s counsel submitted that the husband failed in a Black and Kellner sense to disclose his interest in the boat. Although the husband should have disclosed it in his own testimony I do not accept that he failed to give adequate disclosure. Ownership of the boat formed part of the evidence in the husband’s case and thus does not justify complaint as being non-disclosure.
It was the wife’s contention that the court would notionally add back $44,228 being moneys withdrawn by the husband in 2002 and about $38,000 paid to V I. I accept the husband’s solicitor’s submission that at least $15,000 of the 2002 withdrawals was paid to V I. In relation to the money paid to V I the wife’s counsel appeared to categorise the payments as a premature disposition of a proportion of the matrimonial assets. Although he did not make reference to it, counsel appeared to rely on the line of authority emanating from Townsend (1995) FLC 92-569, a case distinguishable on its facts from this one. In that case the impugned transaction, which was the sale of a taxi, occurred at or shortly after separation. The husband in Townsend repaid a joint matrimonial debt and acquired an asset that still existed as well as repaying joint matrimonial living expenses. Those moneys repaying joint matrimonial living expenses were excluded from the add back exercise. Notionally added back were his paid legal costs and the balance that the husband was unable to adequately account for.
Townsend does not establish a rule of general application that all savings acquired after separation must be notionally added back into the asset pool. Here the husband generously supported the parties elder son and gave him a quality of life that the young man was unable to achieve through his own endeavours. The money paid to V I was paid out over a number of years, sourced entirely from the husband’s wages earned after separation. The husband did not use savings that accrued while the parties cohabited. Thus there is no proper basis to notionally add back those funds.
I agree with the husband’s solicitor that the wife’s counsel was double counting the $38,000 and $44,228 – if not entirely then to a significant extent. Of the $44,228 withdrawn in 2002, the husband paid at least $15,000 to V I, probably $5000 deposit on the boat and used smaller sums on his own living costs. Rounded out there is about $20,000 - $22,000 unaccounted for. If the court was satisfied that the husband had this money hidden somewhere it should be included in the asset pool. The husband seemed genuinely surprised that these withdrawals became the focus of vigorous cross-examination. He appeared to think that this case was limited to what amount if any he should have from the home. Basically a one dimensional issue, consistent with the asset by asset approach taken by his solicitor. The husband continued to deposit his wages into this same account and his savings have grown to a sizeable sum since 2002. On balance I am satisfied that the money has been spent and is not secreted awaiting the finalisation of these proceedings. Even if the money were available, these are funds in relation to which the wife made no contribution.
The wife claims that $13,710 in an account styled, “D I in trust for A I” (their daughter) is not her money. Using a combination of child support, youth allowance and Austudy, the wife established a term deposit, reinvesting the accrued interest. As at 15 March 2004 this term deposit held $13,647.43 with additional interest of $62.95 payable on 15 March 2004[4]. All monies paid into this account were paid to the wife. None of the money paid into the account came from A I. The wife is signatory to this account and instructions in relation to its operation come from her. A I is an adult and is capable of managing her own affairs. Although the wife wishes to spend this money on A I, her intention does not change the nature of the savings. I am satisfied that the wife is the beneficial owner of the funds in this trust account and that they must accordingly be included in the asset pool.
[4] Exhibit O

Section 79(4) – Contributions and other factors

I am strongly of the opinion that this is a matter that must be determined using a global approach. The parties were married for nineteen years before they finally separated and in total there are nearly thirty years contributions and other factors that must be considered. Focussing on one asset only, the former matrimonial home, has the potential to do a grave injustice to the wife. This is because she made a significant non-financial contribution as home maker and parent over many years and also because the husband has significant assets acquired after separation which require consideration. Only by using a global approach can the court deliver a just and equitable outcome. Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, to the welfare of the family as well as the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
Four years prior to their marriage, the husband commenced employment at BHP in Port Kembla as a labourer. After two years he transferred to a position as a beltman and remained employed by BHP until late 2001. It seems likely that he joined the BHP superannuation fund on 17 September 1974. There is no challenge to the husband’s contention that at the commencement of cohabitation his assets comprised a 1970 Valiant subject to a loan.
At the commencement of cohabitation the wife had no assets, liabilities or financial resources.
Upon their arrival in Australia, the parties lived with the husband’s parents. The husband returned to BHP where he resumed full time employment and the wife was engaged full time as a home maker. Following V I’s birth in April 1976 the wife was overwhelmingly responsible for his care.
After a disagreement with the husband’s parents, in June 1976 the wife left their home and went to a refuge. She and the husband resumed cohabitation about two weeks later and continued to live with the husband’s parents until about September 1976. Once again, following an argument with the husband’s parents the wife left their home and moved in with the husband’s uncle. Until the husband joined her in about November 1996 V I remained with him at his parents’ place. Once the husband and V I joined the wife in November 1996 they did not return to live with the husband’s parents.
In early 1977 the parties settled the purchase of the Oak Flats property. The purchase price was $29,000 which sum was borrowed from St George Building Society. The husband’s sister loaned them $2,000 in order to meet additional expenses associated with its purchase, which sum I infer has been repaid. Other than two years when the parties separated all mortgage repayments were made from the husband’s wages.
AI was born in August 1977. Thereafter the wife was overwhelmingly responsible for AI’s care and continued to be almost exclusively responsible for the housework, basic house maintenance and gardens.
Both parties agree that in mid 1982 they separated at which time the wife took the children and moved into a refuge for about two weeks. The wife says that she left because she, “was violently assaulted by the applicant” which she expanded upon to the extent that she says the husband bashed her. Primarily as a consequence of this incident the wife’s counsel submitted that the court would make a Kennon (1997) FLC 92-757 finding in the wife’s favour. The gravamen of Kennon is found in the joint judgments of Fogarty and Lindenmeyer JJ where their Honours held, “Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that parties’ contribution to the marriage, or put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79”. Conscious to avoid introducing notions of matrimonial fault Their Honours made it clear that the principles they were laying down were applicable only to exceptional cases (at p84, 294). The wife gave little detail about the incident and no evidence that suggested there was a course of violent conduct or its effect upon her contributions. I therefore make no adjustment on the basis of the Kennon principle. The wife also claimed that because of the husband’s mother’s treatment of her, her home maker contributions whilst they lived in her home were made under arduous circumstances. The husband denied the wife’s allegations that his mother had assaulted the wife or that the conditions in the home attracted Kennon. The wife’s evidence did not demonstrate that the husband was complicit in the conduct complained of or even aware of it. Kennon was not intended to be stretched as far as the husband’s counsel contended. The conduct complained of had nothing to do with the husband and increasing the wife’s contribution in the circumstances is unwarranted.
Two weeks after she and the children left the home, whilst the husband was at work, the wife returned. The husband agrees that thereafter he remained away from the home, but says that the parties resumed cohabitation about three months later. Whilst separated the husband’s evidence is that he gave the wife money, however categorised, sufficient to pay the mortgage payments. The mortgage payments were not paid and on 22 September 1982 St George wrote to the husband advising that unless $1,089.88 was paid by 7 October 1982 then the bank would take action in relation to the default[5]. After the parties resumed cohabitation the husband says that the wife told him the mortgage was in arrears and he then made arrangements for the mortgage payments to be deducted directly from his salary. The husband’s account of the parties’ separation became confused when the wife’s counsel reminded him that custody and child maintenance orders were made at Wollongong Court of Petty Sessions on 5 July 1983[6]. As well as the maintenance and custody orders, the court ordered that the wife have exclusive occupation of the family home. The issue is the duration of the separation and payment of the mortgage. I prefer the wife’s evidence, as it is consistent with her continued receipt of Department of Social Security benefits and the date and nature of the orders. There is no adequate explanation proffered by the husband as to why the parties would enter orders in 1983 if they were living together. These factors persuade me that the parties were still separated in mid 1993, which separation continued until May 1984. During this period St George Building Society agreed to accept reduced mortgage repayments, which reduced payments the wife made from her DSS benefit and child maintenance. Whilst the parties were separated the husband exercised access to the children.
[5] Exhibit H
[6] Exhibit G
In about 1983 the husband took a second job working as a beltman in the coal mines for Illawarra Conveyors. The evidence does not disclose whether occurred before or after separation. The husband worked with Illawarra Conveyors until 1987. After the parties resumed cohabitation whilst the husband worked two jobs, the wife’s responsibility in the home increased in the sense that he was even less able to help her with the children and the home.
Having resumed cohabitation, the husband was thereafter responsible for the mortgage payments, including payment of the arrears accrued while the wife paid reduced instalments. In 1989 the husband borrowed $3,000 from a friend which he used to pay out the St George mortgage. He repaid his friend in full by 1990. The wife claimed that she repaid the $3000, which claim I do not accept. Although she was working she did not disclose sufficient income to pay the expenses claimed as well as the mortgage. The husband had been paying the mortgage and I am satisfied that he paid out his friend.
In 1985 the wife obtained employment with as a machinist. She worked with until 1989 when she suffered a workplace injury. During this period the wife claims that she paid the mortgage as well as meeting other household expenses. In this instance I prefer the husband’s evidence that he continued to have the mortgage repayments deducted from his salary. The wife did not persuade me that her income was sufficient to make all the payments she claimed. The wife has not returned to the paid workforce. This is not withstanding her attempts to obtain employment with AIS and numerous other employers. Eventually, the wife joined a class action claiming discrimination by AIS. As a result of those proceedings she received compensation of $12,540 in December 1993[7].
[7] Exhibit J
In late 1992 the parties borrowed $45,034.41 from the City Coast Credit Union[8], which they used on a family holiday to Macedonia. They left for Macedonia in about September 1992 and returned to Australia in early January 1993. From the monies borrowed, approximately $30,000 was spent on the holiday. Upon their return on 15 March 1993 $14,000 was paid back into the loan[9].
[8] Exhibit Q
[9] Exhibit Q
On 17 March 1993 the parties separated when the husband left the family home. At separation, V I was nearly 17 years old and in his last year of school and A I was 15 and a half years old. They continued to live with the wife in the family home. At separation the husband took the car and the wife retained the contents of the home.
Under cover of letter dated 6 June 2003 addressed to the wife’s solicitors[10] the husband’s solicitor attempts to calculate the husband’s potential redundancy entitlement as at the date of separation. He used a formulaic approach apparently based on years of service multiplied by a specific sum and also a fixed figure that appears to be a set minimum payment. He then divided it by the number of years of service compared to years of cohabitation. The wife’s counsel objected because the court did not have direct evidence from BHP concerning the issue. The difficulty with the formulaic apportionment of the entitlement is that it appears to adopt current rates rather than the rates applicable at the date of separation. Apart from anything else, a formulaic approach has no real regard to the value of money at any given time. Having accepted the wife’s counsel objection, the court was left without evidence of the value of the husband’s entitlement, if any, at separation.
[10] Annexure F husband’s affidavit
In Burke (1993) FLC 92-356 Fogarty J discussed the nature of redundancy payments. His Honour held “A redundancy payment is capable of being regarded as a contingent right analogous to insurance which is intended to provide an accumulated safeguard against loss of wages and other benefits during an employee’s working life and which can be turned into a cash payment should the employee’s position become redundant. For the purpose of s79 of the Family Law Act, that contingent right is therefore an accruing potential financial resource of the employee party which is transposed into property where the conditions for its payment arises. That is, until an offer of redundancy is accepted, no chose-in-action arises and the entitlement is not property of the parties within the meaning of s79.” His Honour’s decision has been widely adopted. There is no evidence that at separation the husband was facing redundancy. Redundancy took place years after separation. Applying Burke to the facts of this case means that at the date of separation the husband had an accruing financial resource that only became property in 2001. At separation there is no evidence that this resource had any value and thus I am satisfied it did not.
The husband contends that at separation he left behind traveller’s cheques in his name worth 7000 deutschmark and that the wife had traveller’s cheques in her name to an equivalent value. VI corroborated the husband’s evidence. The wife denied that any traveller’s cheques remained with her and says that once the parties repaid $14,000 into their City Coast Credit Union account there were no additional funds left over from their trip. I accept her evidence.
Thus, at the date of separation the parties had the following assets and liabilities:
·The Oak Flats Property, subject to a mortgage from City Coast Credit Union on which $30,171.61[11] was outstanding.
·1970 Valiant worth approximately $1,000, the husband took this vehicle at separation.
·2,100 BHP shares[12] in the husband’s name valued at $13.29 each.[13]. The total value being $27,909.
·Husband’s BHP superannuation interest worth $33,076.[14]
·Household contents that remained with the respondent.
·Additional outstanding liabilities of approximately $2,500, which amounts were paid by the husband post separation.
[11] Exhibit Q
[12] Annexure C, husband’s affidavit
[13] Annexure D, husband’s affidavit
[14] Annexure E, husband’s affidavit
After separation the wife and children remained living in the home. The husband paid all mortgage repayments until the mortgage was fully discharged in 1996.
At separation VI was nearly 17 years old and AI was 15 and a half years old. Both children were still at school and completed year 12. The wife was not in paid employment and the husband was employed by BHP. From May 1993 until 1 July 1995 the husband paid child support of approximately $305 per fortnight. From 1 July 1995 to 18 August 1995 he paid child support as assessed by the Child Support Agency, a monthly amount of $562.75[15]. Because he did not start paying child support immediately upon separation, the husband fell into arrears and some time in late 1993 made a lump sum payment via the Liverpool Family Support Office of $3,000. This did not fully discharge the arrears, and on 27 June 1994 the husband reached agreement with the Child Support Agency for an extra $50 per week to be deducted from his salary until the outstanding arrears were paid in full[16].
[15] Annexure I, wife’s affidavit
[16] Exhibit I

On 26 September 1993 the wife became eligible for a disability pension, which she has received continuously thereafter.
After separation the husband returned to live with his mother. In 1994 he moved in with MN and they have lived as defacto partners ever since. MN was widowed in 1997. When they commenced cohabitation she was employed by BHP as a cleaner. MN owns her own home and has never required the husband to pay rent. They have never intermingled their finances.
VI completed year 12 in 1995 and AI completed year 12 in 1996.
In 1997 accompanied by AI the wife returned to Macedonia. VI continued to live at the former matrimonial home. Prior to her departure, the wife made VI a signatory to a Commonwealth Bank account styled “in trust for VI” that had a current balance of $900. The wife claimed that she also gave VI $1,100 in cash she withdrew on 29 October 1997. VI challenged the wife’s assertion and a surprising amount of time was taken exploring the issue. When the wife returned to Macedonia VI was 21 years old. The wife had no legal obligation to provide him with the contentious $1,100 or other support. The husband appeared to claim that if the wife had not paid $1,100 to VI, then there was an additional $1,100 that she had failed to account for. I do not accept this submission. Even if the wife had not left the $1,100 with VI, the amount is a modest sum saved over a number of years all post separation. Compared to the larger sums of money that the husband had the benefit of and which he contends should not be taken into account, it would be plainly inconsistent to add this money back.
The wife lived in Macedonia until 17 April 2002. Whilst there she lived in rental accommodation and supported herself from her Australian disability pension. Upon her return to Australia she moved back to the former matrimonial home and not long afterwards VI left.
On 21 August 1995 the wife withdrew $12,540 from her Commonwealth Bank account, (her discrimination settlement) and deposited it into a term deposit with City Coast Credit Union. The term deposit remained in situ until the wife withdrew $10,000 for legal fees associated with these proceedings. Recently she paid an additional $8000.
On 15 September 2002 the wife became friendly with SJ. He works full time with a local council and resides in Sydney. The wife agreed that in about November 2002 she spent $5,017 on a selection of household goods[17] and improvements from money advanced by SJ. These monies were advanced as an unconditional gift. S J then gave the wife an additional $2,800 which she used to pay for her daughter and son-in-law’s airfares to Australia in late 2002. The husband contends that the wife is living in a defacto relationship with SJ, which relationship she failed to disclose. During this portion of cross-examination, the wife gave her answers with obvious reluctance and the process of securing her responses was unnecessarily prolonged. The wife gave her evidence with the assistance of an interpreter. The manner with which she dealt with this issue was quite different to her style of responses on many others. The wife appeared comfortable working with her interpreter and the difference in her style of testimony appeared to relate to the subject matter and her reluctance to answer the husband’s solicitor’s questions. The wife says that she continues to live in the family home, but eventually conceded that she spends her weekends in Sydney with SJ. The wife’s claim that she resides with her daughter and son- in-law could easily have been corroborated by either of them. AI accompanied her mother to court and was available to give evidence on this important issue. The wife’s failure to adduce available corroborative evidence attracts the rule in Jones v Dunkel (1959) 101 CLR 298. I am not satisfied that the wife has fully disclosed the extent of her relationship with SJ. Although the wife claimed that she would like to repay the advances he has made, I am satisfied that SJ claims no such debt.
[17] Exhibit R
Since separation the husband has continued to acquire BHP shares. He bought a further 1,000 on 15 May 1995, 210 on 19 May 1995 and 500 on 31 October 1997.
On 29 November 2001 the husband took voluntary retirement from BHP when the company was taken over by Transfield. His total redundancy package was $57,229. Of this $2,722 was annual leave, $5,674 long service leave and $57,229 redundancy component. Before receiving the payment, BHP deducted $1,252.36 tax payable for the annual leave component and $1,587.84 payable in relation to long service leave.
Immediately after taking redundancy the husband started work with Transfield in the same job and location that he had with BHP.

Evaluation of contributions

During approximately nineteen years from marriage until their final separation both parties made substantial contributions that fall within s.79(4)(a)-(c). From the outset they both worked hard in order to establish a secure financial future. Throughout their marriage the husband took primary financial responsibility for the family. At BHP in addition to his standard forty hours week, he worked substantial overtime and also worked a second job. During cohabitation the husband contributed all of his income to joint matrimonial purposes. The wife worked for a number of years and her modest income was entirely contributed to matrimonial purposes. During the 1982 separation the wife used her DSS benefit to support herself and the children. Although he was late making payments, the husband paid child maintenance and caught up the mortgage arrears once the parties resumed cohabitation. Comparatively, as at the date of separation the husband made a substantially greater financial contribution than the wife did.
Neither party contends that they made improvements to the home. There were no substantial repairs or renovations. Both parties contributed to the property’s maintenance and their respective s79(4)(b) contributions as at the date of separation were equal.
The husband’s employment meant that the day to day care of the family and management of the home was overwhelmingly the wife’s responsibility. Because he worked long hours and for a period, a second job, there were periods when the wife was all but exclusively responsible for the children. This is not limited to the period when the parties were separated between 1982 and 1984. Her diligent attention to the children and the home meant that the husband could pursue his career confident that their children’s daily needs were competently attended by the wife. He trusted the wife to largely meet their joint parental responsibility for the care of the children and accepted her judgment in relation to the daily matters necessary to run the children’s lives. Their roles were complimentary and to a significant degree both excelled. The husband made a contribution to the welfare of the family to the extent that he was able to. Quite apart from providing financially for the family he spent time with the wife and children when he was able and complimented the wife’s work in the home. As at the date of separation the wife’s contribution to the welfare of the family substantially exceeds the husband’s. Her contribution must be recognised in a real and substantial way. See Ferraro (supra).
As at the date of separation, I am satisfied that the wife made a slightly greater contribution than the husband. This is primarily attributable to the two years during which the parties were separated and in which she had overwhelmingly and effectively exclusive responsibility for the children’s care and the home. Taking all of the contributions made prior to final separation into account, I am satisfied that as at that time contributions should be evaluated at 52 per cent to the wife compared to the husband’s 48 per cent.
Both parties have made important contributions post-separation.
Excluding the matrimonial home at the date of separation the parties had assets and financial resources worth approximately $64,816. Of this $35,907 was a financial resource. Namely the husband’s superannuation worth $33,076. As the wife has not worked since separation she must have accrued her superannuation interest during cohabitation. Once fees are taken into account, it is unlikely to have grown since separation and hence I treat is as being worth approximately $2,831 (its present value).
Again excluding the matrimonial home, the parties have net assets worth $334,056 comprising non superannuation assets worth $175,753 and superannuation worth $158,303. Of this the wife has directly contributed about $43,000 towards the non superannuation assets. The overwhelming majority of which has come through scrupulous saving. Saving her Disability Pension, discrimination money and funds in her term deposit. While the husband contributed via child support to the term deposit, the wife must have lived frugally indeed, going without herself in order to acquire and maintain these savings.
Although the husband’s redundancy was paid in 2001, the wife contributed to it under s79(4)(c). See Burke. The parties cohabited for 17 of the 27 years during which the husband established the conditions for payment of his redundancy. Although he may deny it, by taking overwhelming responsibility for the children and home (including whilst the parties were separated), the wife freed him of demands that may have restricted his capacity to become the reliable and valuable employee he obviously became to BHP. Thus while the husband made a greater contribution to the redundancy component of his pay out the wife made a significant contribution to it as well. Too many years have lapsed since separation for me to be satisfied that she contributed to his long service leave and annual leave portions of the pay out.
Superannuation has long been regarded as a joint venture to which parties contribute and plan for their retirement. The growth in the husband’s superannuation will have been achieved by interest and other payments accruing on the $33,076 he had at separation and additional payments made by and on his behalf since separation. As the increased value is $122,396 this amount will predominantly have come from the husband’s post separation earnings. Thus the husband has made a far greater contribution to his superannuation than the wife has. She contributed indirectly during the years preceding separation but not since. This is a significant contribution on his part. I make similar findings in relation to the husband’s shares. As to the balance of his assets these have all been acquired post separation and are solely contributions made by him.
There is no evidence that there were any improvements made to the former matrimonial home post separation. Thus its increased value, the full extent of which is uncertain, reflects contributions by both parties. Their prior ownership of the home is the basis upon which subsequent capital growth was made. The wife supported the home by paying rates and other outgoings associated with it. It is unlikely that the rates were less than the wife presently pays, $1196 annually. The husband supported the home by making all mortgage payments until he paid out the mortgage in 1996. Since separation the wife has paid about $12,000 rates and probably some other small outgoings. Whereas the husband has paid $30,131 together with interest on the mortgage. Financially he made a greater post separation financial contribution to the house. The difference is not great and I am satisfied that both parties contributed equally to the increased value in the family home.
The wife’s role as home maker and parent continued for approximately three years after separation. Apparently the husband did not have contact to the children. However, by allowing the wife and children to reside in the matrimonial home, he made an important contribution as a parent.
The husband’s post separation contributions substantially exceed the wife’s. The pivotal differences in their post separation contributions are the husband’s substantially greater financial contribution. After 1997, the wife’s contributions were limited. She maintained her savings and her indirect contribution to the husband’s redundancy crystallised. With his partner’s support the husband has worked and saved hard, improving the value of the matrimonial assets substantially. Once the wife’s responsibility for the children ended it is the financial contributions that are particularly significant. This is a factor to which I give significant weight.
The orders I propose will not affect the earning capacity of either party.
After separation, the wife applied for an administrative assessment of child support. The husband had paid child support in accordance with the assessment (albeit late on occasions).
I find therefore that the parties’ total contributions should be assessed as being 35 per cent by the wife and 65 per cent by the husband.

Section 75(2) factors

Subsection (a). The husband is 53 years old and the wife is 51 years old. The wife suffers from anxiety and depression and has satisfied the Department of Social Security guidelines for eligibility for a disability pension since late 1993. Thus I infer she is in poor health. Dr JH, consulting psychiatrist, has been treating the husband since 2001. Dr JH reports that the husband has been visiting the psychotherapy centre since 1994 and taking a psychotropic medication ever since. Dr JH describes the husband’s condition thus, “Since his initial visit with me, the applicant’s panic attacks have become less frequent, however the social phobia and anxiety symptoms remain. The applicant also suffers episodes of depression and for this I prescribed Prozac. The applicant’s condition is chronic and was present prior to his initial contact with psychiatric services. His condition is life long and it is likely he will continue to suffer episodes of depression. He will need to remain in ongoing psychiatric care into the future”. It appears that both parties have similar psychological features, which the husband manages by medication and therapy, but which in the wife’s case are untreated. Thus I make no adjustment pursuant to the subsection.
Subsection (b). The wife is unemployed and has not had paid employment in Australia for many years. When she lived in Macedonia she did not take up paid employment. Regrettably she does not have skills, work experience nor sufficient good health that would enable her to take up employment. The wife has no capacity for future paid employment. Her income comprises $229.30 social security payment. The husband has secure well-paid employment with Transfield. He has many years’ experience as a beltman. Although in his affidavit he says that he earns $625 per week excluding overtime, this is misleading. That is because he regularly works overtime and his base salary is supplemented by allowances. For the tax year 1 July 2002 to 30 June 2003[18] the husband’s total gross salary was $61,832 or $1,189 per week. His most recent pay slip, for the pay period 20 March 2004 – 26 March 2004 showed that his base pay is $841.91, on top of which he receives dirt allowances and crib. Including overtime, he received total taxable salary and wages $1,570.83, less income tax, Medibank and union fees, leaving a net salary of $1,050.88. His recent pay slip shows that for the nine months of the 2003/2004 tax year the husband earned total gross income $54,659.31. This is approximately $6,000 per month gross, which means that this year he is likely to earn a total income of approximately $72,000. Because he carefully manages his health, the husband has been able to work full time for many years, eleven of them after he realised he needed psychiatric assistance. His work ethic is impressive as is his desire to stay well. He is compliant with medication and there is no suggestion from Dr JH that his health will deteriorate whilst he remains compliant. Thus, I am satisfied that the husband will continue in well-paid employment until he reaches retirement age. As he gets older he may reduce the amount of overtime he works and his income may reduce somewhat. Overall, I am satisfied that the husband will continue to earn a considerably greater income than the wife will. The disparity is such that I make an adjustment pursuant to the subsection in her favour.
[18] Exhibit B
Subsection (c). Neither party has responsibility for the care or control of a child of the marriage. I make no adjustment pursuant to this subsection.
Subsection (d). The husband is able to meet his expenses from his income. Because he lives with his defacto partner, he does not incur significant living costs and has not done so for many years. I will deal separately with the financial consequences of this relationship later. In her financial statement the wife said her average weekly expenses were $290 which when her rates of $23.70 were taken into account meant that her expenses exceeded her income by $84 per week. This trend flies in the face of accrued and maintained savings subsequent to separation. The wife used child support and other child related allowances to establish reasonably significant savings and supported her and the children from DSS benefits. This pattern continued whilst she lived in Macedonia. The wife is obviously industrious and frugal, which frugality enabled her to save diligently. I do not accept the wife’s evidence that her son-in-law routinely provides financial support, meeting the shortfall of her expenses. No such disclosure was made in her financial statement. Rather, as the discrepancy in her financial statement was explored, she proffered this explanation in an attempt to avoid criticism that her information was incomplete or misleading. Whilst I accept the husband's solicitor’s submission that the wife’s evidence was misleading, nonetheless I am satisfied that in order to live within her means, the wife lives much more modestly than the husband does. Her income is exhausted meeting her living expenses. Thus I make an adjustment in the wife’s favour pursuant to the subsection.
Subsection (e). The wife does not have responsibility for any other person. The husband resides in a defacto relationship, however his partner is self-sufficient. I make no adjustment pursuant to this subsection.
Subsection (f). The wife receives a disability pension. The probability is that she will receive this pension for life. Neither party is eligible for any other pension, allowance or benefit or superannuation payment. I make an adjustment in the husband’s favour pursuant to this section.
Subsection (g). Since separation, both parties have lived in apparently modest circumstances. For about twelve months the husband lived with his mother, no longer having the amenity of his own home. The wife remained in the former matrimonial home, which home is modest. Her accommodation in Macedonia comprised a modest two bedroom rented unit. The husband’s standard of living improved once he commenced cohabitation with his defacto partner. He has been able to buy a fishing boat and pursues his hobby with MN’s full support. The husband explained that he enjoys gambling (modestly) and has achieved a comfortable lifestyle with his partner. The wife’s lifestyle has improved subsequent to her relationship with SJ. I doubt that the wife has fully disclosed the extent of her relationship with SJ and the probability is that she spends more time with him than she disclosed. Thus, her lifestyle has improved, but not to the same extent that the husband’s has. The difference warrants an adjustment in the wife’s favour.
Subsection (h) – (l). These issues do not arise.
Subsection (m). The husband and MN have a strong and supportive relationship. MN earns about $43,000 (including overtime) and owns her own home which she believes is worth approximately $200,000. The home is fully furnished. She does not have a car. MN contributes to the husband’s support, which support has enabled him to re-establish himself financially. As well as enabling him to provide child support and pay the mortgage in the years after separation without compromising his mental health and maintaining a reasonable standard of living. In only the last few months the husband has started to contribute between $30-50 per week towards the household expenses. Overall, the financial circumstances of cohabitation are favourable to the husband. Although the wife does not cohabit full time with SJ, he provides her with food and accommodation when they are together and has given her significant sums of money. I take this into account pursuant to the subsection. Comparatively, the husband’s relationship with MN is more significant both in terms of the financial benefit to him and his financial future as a consequence. Accordingly I make an adjustment pursuant to the subsection in favour of the husband.

Subsection (n). Section 75(2)(n) achieves a cross referencing between s.75(2) and s.79. The outcome of the assessment of contributions and other factors has resulted in the wife having 35 per cent of the assets compared to the husband’s 65 per cent. Neither party seeks a split of superannuation, and the husband will take his interest assessed by the contributions phase substantially in superannuation whereas the wife will have hers predominantly in the available assets (the home). It is likely that he will tax on his superannuation when he takes it. In order to retain the home the wife must pay the husband a significant sum. She would need to raise a mortgage in order to do so. These factors do not warrant an adjustment pursuant to the subsection.
Subsection (na). This issue does not arise.
Subsection (o). The wife’s counsel submitted that at separation there was a tacit agreement that the wife would have the home and its contents and the husband would have his superannuation and workplace entitlements. In Woodcock v Woodcock (1997) FLC 92-739 the Full Court held: “that the court’s jurisdiction to grant relief under s.74 or s.79 can only be ousted by court order or by agreement approved pursuant to s.87.” The facts and circumstances relied upon to establish the agreement is nonetheless relevant in a s.79 application. For example, the agreement may be relevant as to whether it is appropriate to make an order (s.79(1)) as well a whether it is just and equitable to make any and if so what s.79 order (s.79(2)). I respectfully agree with Nygh J’s statement In the Marriage of DupontNo (3) (1981) FLC 91-103, “it may be that where a party to an agreement allows the other to assume by tacit acceptance of compliance with the agreement that no claim will be made under s.79 and the other party acts on that assumption to his or her detriment” that this is a matter that can be taken into account pursuant to s.75(2)(o). The court is not limited to taking the agreement into account in only one instance. It can be relevant in a number of respects in the same case. This is clear from the Full Court’s statement in Candlish and Pratt (1980) FLC 90-123, “the fact that the parties have entered into a Deed relating to their financial affairs (whether or not registered) is a relevant factor for the court to consider (s.75(2)(o) and under s.79(2) and also on general principles)” at par 75, 169.
There is no evidence that the parties directly, or others on their behalf, conducted negotiations or reached an agreement concerning the disposition of the matrimonial assets at the time of separation, or subsequently. At no time after separation did the wife raise with the husband whether he relinquished his interest in the family home. In circumstances where he continued to pay the mortgage after separation and remained on the title to the property, I am not persuaded that the husband ever agreed that the wife should have the home. In his affidavit he explained that “I did not challenge the divorce or residence orders because I did not want our children to have to move out of the house and move schools. When both children had finished school, the Respondent went to Macedonia from 1997 to 2002. When the Respondent returned to Australia I made the current application to the Family Court. I waited until she was in the country to have her fair say and be involved in the proceedings.”[19] It is after the only child remaining resident in the home had vacated, that the husband commenced this application. Prior to the husband filing his s79 application, neither party had obtained a divorce and both parties retained their rights to bring an application pursuant to s.79 for the adjustment of property. Before the wife could persuade me that she had a reasonable basis for believing that the husband had relinquished his interest in the home to her, she would have needed to either reveal facts which unambiguously demonstrated such an agreement or an actual agreement. She has done neither. In those circumstances I am not satisfied that the wife has acted to her detriment in reliance on any agreement. I make no adjustment pursuant to the subsection.
[19] Pars 68 and 69 husband’s affidavit
Subsection (p). This subsection does not arise.
Having regard to all of the s.75(2) factors I find it is appropriate that there should be an adjustment in the wife’s favour of 10 per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti (2002) FLC 93 – 032. Any lesser adjustment, given the size of the asset pool would be notional.

Section 79(2) is this outcome just and equitable?

Because the court must consider the actual orders, not just the percentage distribution under s.79(2) justice and equity in cases like this requires that the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process. It is at this stage that the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an outcome favourable to the husband 55 per cent compared to the wife’s entitlement at 45 per cent is just and equitable. Simply put these include that the wife made a substantially greater contribution as home maker and parent throughout the marriage, which contribution must be given significant weight. By taking responsibility for the home and children the wife contributed to the husband’s superannuation and later acquired redundancy pay out. During cohabitation the husband made a far greater financial contribution than the wife did. Overall while the parties lived together they worked as hard as they could in order to establish their families future. Post separation contributions substantially favour the husband. He worked and saved hard in order to grow his assets. The increased value in the assets for which he was responsible has been significant and must be properly acknowledged. Because he has remained in the workforce and had employment opportunities denied the wife, he has the opportunity to continue to acquire superannuation, other assets and to earn a significantly greater income than the wife. While her financial position is modestly enhanced as a consequence of her relationship with SJ, this relationship is nowhere near as financially advantageous to her as the husband’s is with MN. The wife will never work again in the paid workforce and there is virtually no prospect that she will acquire superannuation. Such modest savings and assets that she may acquire will be achieved by a frugal lifestyle. The disparity in the parties’ future circumstances requires a meaningful adjustment in the wife’s favour.
Neither party sought a superannuation splitting order. The wife is obviously content to have her s.79 entitlement defined by reference to the available assets. Surprisingly, the husband took a similar approach. As neither party sought a superannuation splitting order and the husband has apparently secure accommodation, although I considered adjourning in order to notify the trustee before making such an order, I have decided against it.
The parties agree that the wife should have the opportunity to acquire the husband’s interest in the matrimonial home. Thus, the effect of the orders will mean that the wife has the home, her savings, the contents of the home, her paid legal fees and superannuation. Forty-five (45) per cent of $624,055 (nett assets) is $280,824.00. The wife has assets the total value of which is $336,175. Hence she must pay the husband $55,349. By way of cross-check the husband will have his savings, shares, motor vehicles, paid legal fees and superannuation, nett assets worth $287,883. Fifty-five (55) percent per cent of $624,055 is $343,230.00. Rounded down the difference is $55,349. At settlement the husband must give the wife completed Memorandum of Transfer in registrable form.
In the event that the wife fails to pay the monies ordered the home will be sold. Although it has an agreed value, the nett proceeds cannot be known. The total assets, excluding the home are $334,055. Forty-five (45) per cent of $334,055 is $150,324. The wife has assets, excluding the home, worth $46,173. Therefore, on the sale of the home when the wife receives her 45 per cent nett share, there will have to be an adjustment in her favour paid from the husband’s 55 per cent. The husband is entitled to 55 per cent of $334,055, which is $183,730. He has assets of $287,883. The adjusting figure is the amount needed to ensure that the wife receives 45 per cent of the nett assets, which is $104,151.00.
As the wife occupies the home, pending settlement she must maintain the property and pay rates and taxes as and when they fall due. If she defaults the default must be paid out of her proceeds.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 6 May 2004