Jamp and Jamp

FAMILY COURT OF AUSTRALIA

JAMP & JAMP

[2009] FamCA 386

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation

Family Law Act 1975 (Cth) ss 75 & 79

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
In the Marriage of Robb (1994)18 Fam LR 489

APPLICANT:

Ms Jamp

RESPONDENT:

Mr Jamp

FILE NUMBER:

SYC

1446

2008

DATE DELIVERED:

15 May 2009

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Sydney

HEARING DATE:

2 & 3 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr G. Foster
SOLICITOR FOR THE APPLICANT:	Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT

HUSBAND:

Mr G O’Gorman

SOLICITOR FOR THE RESPONDENT

Atkinson Vinden Lawyers

Orders

Within 2 months of the date of making of this Order, the wife will do all such acts and things and sign all such deeds, documents, instruments and writings as may be necessary to transfer into the sole name of the husband the whole of her right, title and interest in and to the property known as and situate at C in the State of NSW (“the [C] property”), being the whole of the land comprised in Folio Identifier ….
Simultaneously with Order 1 above, the husband will:
2.1. pay to the wife the amount of $314,000;
2.2. procure a discharge in registrable form of the mortgage and equity line of credit with Westpac Banking Corporation secured on the C property.
In relation to the Navigator Super Solutions Superannuation Fund (“the Fund”):
3.1.   Having been accorded procedural fairness in relation to the making of these Orders, Orders 3.2 to 3.9 inclusive of these Orders bind NULIS Nominees (Australia) Limited, which is the Trustee of the Fund.
3.2. The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Act and the Regulations, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to the wife, in accordance with these Orders.
3.3.   The base amount allocated to the wife out of the interest of the husband in the Fund (Member No. …) is $35,271 of the husband’s entitlements as at the date of these Orders (“the base amount”).
3.4. Pursuant to Section 90MT1(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable in respect of the interest of the wife in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Regulations using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
3.5.   Order 3.3 has effect from the operative time.
3.6.   The operative time of these Orders is four (4) business days after the date of service of these Orders from the Trustee of the Fund.
3.7.   The husband shall within fourteen (14) days of becoming entitled to receive a superannuation benefit from the Fund, provide to the Government Superannuation Office all such forms as may be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.
3.8.   Leave is granted to each party and the Trustee to apply in relation to the implementation of these Orders affecting the superannuation interest.
3.9.   In the event that the Superannuation Fund of the wife pursuant to these Orders can be rolled over into a separate account in the name of the wife, each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and implement that rollover.
Within 14 days of the date of making of this Order, the husband allow the wife access to the C property at any reasonable time nominated by her, and allow her to collect therefrom, at her own expense, the following items:
4.1.   the gas heater;
4.2.   the boxed cutlery set;
4.3.   the table in the entrance/hallway;
4.4.   the outdoor dining setting and tableware;
4.5.   any personal items at the C property that belong to the wife and/or her children, including the wife’s collection of Beach Boys records and CDs; and
4.6.   all photographs at the C property selected by the wife, provided that she will return them to the husband within 14 days thereafter, having copied them for her benefit.
Other than as hereinbefore provided, as against the husband, the wife shall be entitled to retain as sole and beneficial owner:
5.1.   her interest in Navigator Super Solutions H Company Super Fund;
5.2.   the 2001 BMW motor vehicle, Registration No. …;
5.3.   the property located at W;
5.4.   all funds held in bank accounts in her name;
5.5.   her IAG shares; and
5.6.   all household contents currently in her possession or control.
Other than as hereinbefore provided, as against the wife, the husband shall be entitled to retain as sole and beneficial owner:
6.1.   his interest in Navigator Super Solutions H Company Super Fund;
6.2.   the 2004 BMW motor vehicle, Registration No. …;
6.3.   the 1999 Mitsubishi Mirage motor vehicle, Registration No. …;
6.4.   his investment in S Company;
6.5.   all funds held in bank accounts in his name;
6.6.   his N Company shares; and
6.7.   all household contents currently in his possession or control.
Otherwise than as provided for herein, the husband and the wife shall each be entitled to retain as sole and beneficial owner all personalty and financial resources including furniture, personal effects and leave entitlements presently within their respective names, possession and/or control.
The husband and the wife shall each otherwise be and remain liable for any debts in their own name as at the date of these Orders, and in this respect shall indemnify and keep indemnified the other from any liability in relation thereto.
In the event that the husband has not complied with his obligations pursuant to Order 2 above within 2 months of the date of making of this Order, the following provisions shall apply:
9.1.   the husband shall in addition pay interest on such sum as may still be payable to the wife, at the rate prescribed by the Family Law Rules 2004, such interest to be calculated on daily balances from the due date for payment until the date of payment in full; and
9.2.   the husband and the wife shall, within 42 days of the date of making of this Order, do all such acts and things and sign all such deeds, documents, instruments and writings as may be necessary to effect a sale of the C property, and in particular shall:
9.2.1.immediately list the C property for sale by public auction with such firm of estate agents as may be nominated by the wife (“the auctioneers”);
9.2.2.appoint a Solicitor to have the primary conduct of the sale, such Solicitor to be again appointed by the wife;
9.2.3.cooperate in every way with the auctioneers, including but not limited to, making the keys available to the auctioneers and allowing inspection of the C property at all reasonable times requested by the auctioneers, and ensuring that the C property including the grounds are in a neat and clean condition at the time of inspection by the auctioneers and prospective purchasers;
9.2.4.execute all documents requested by the auctioneers and the Solicitors in relation to the sale of the property;
9.2.5.attend the auction sale and, in the event that the C property is passed in at auction, negotiate with the highest bidder at the auction;
9.2.6.accept the advice of the auctioneers as to a suitable reserve price, and as to the acceptance of an offer below the reserve price, in the event that the C property is passed in at auction;
9.2.7.in the event that the property does not sell at auction, re-list the property for sale by auction at intervals of no more than 6 weeks, upon the same terms and conditions as set out above, until the C property is sold.
9.3.   upon settlement of the sale of the C property, procure that the proceeds of such sale be distributed as follows, and according to the following priority:
9.3.1.            in payment of the auctioneers’ costs on the sale;
9.3.2.in payment of legal costs and disbursements incidental to the sale;
9.3.3.in payment of the amount required to discharge the mortgage and equity line of credit with Westpac Banking Corporation secured on the C property;
9.3.4.in payment to the wife of the sum of $314,000 referred to in Order 2 hereof, together with interest thereon, calculated in accordance with Order 9.1 hereof;
9.3.5.the balance thereafter remaining to be paid to the husband.
In the event that the husband or the wife, for any reason, refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any part of these Orders made herein within 7 days of being requested in writing to do so, pursuant to Section 106A of the Act any Registrar of the Family Court of Australia is empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1446 of 2008

MS JAMP

Applicant

And

MR JAMP

Respondent

REASONS FOR JUDGMENT

After living together for more than 6 years the parties cannot agree on a settlement of their property.

Applications

The wife seeks orders in terms of her Application For Final Orders filed 18 March 2008 as follows:

1. THAT within 28 days of the date of making of this Order, the wife will do all such acts and things and sign all such deeds, documents, instruments and writings as may be necessary to transfer into the sole name of the husband the whole of her right, title and interest in and to the property known as and situate at [C] (“the [C] property”), being the whole of the land comprised in Folio Identifier […].

2. THAT simultaneously with Order 1 above, the husband will:

2.1. Pay to the wife the amount of $361,287;

2.2. Procure a discharge in registrable form of the mortgage and equity line of credit with Westpac Banking Corporation secured on the [C] property.

3. THAT in relation to the Navigator Super Solutions Superannuation Fund (“the Fund”):
3.1.The husband and the wife agree that having been accorded procedural fairness in relation to the making of these Orders, Orders 3.2 to 3.9 inclusive of these Orders bind the Trustee, (NULIS Nominees (Australia) Limited), of the Fund.
3.2.The Trustee of the Fund, the husband and the wife, in accordance with the obligations set out under the Act and the Regulations, agree to do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to the wife, in accordance with these Orders.
3.3.The base amount allocated to the wife out of the interest of the husband in the Fund (Member No. […]) is $68,348 of the husband’s entitlements as at the date of these Orders (“the base amount”).
3.4.Pursuant to Section 90MT1(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable in respect of the interest of the wife in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Regulations using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
3.5.Order 3.3 has effect from the operative time.
3.6.The operative time of these Orders is four (4) business days after the date of service of these Orders from the Trustee of the Fund.
3.7.The husband shall within fourteen (14) days of becoming entitled to receive a superannuation benefit from the Fund, provide to the Government Superannuation Office all such forms as may be necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.
3.8.That there be liberty to apply to each party and the Trustee in relation to the implementation of these Orders affecting the superannuation interest.
3.9.In the event that the Superannuation Fund of the wife pursuant to these Orders can be rolled over into a separate account in the name of the wife, each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and implement this rollover.

4. THAT within 14 days of the date of making of this Order, the husband allow the wife access to the [C] property at any reasonable time nominated by her, and allow her to collect therefrom the following items:

4.1. the gas heater;

4.2. the boxed cutlery set;

4.3. the table in the entrance/hallway;

4.4. the outdoor dining setting and tableware;

4.5. any personal items at the [C] property that belong to the wife and/or her children, including the wife’s collection of Beach Boys records and CDs; and

4.6. all photographs at the [C] property selected by the wife, provided that she will return them to the husband within 14 days thereafter, having copied them for her benefit.

5. THAT, other than as hereinbefore provided, as against the husband, the wife shall be entitled to retain as sole and beneficial owner:

5.1. her interest in Navigator Super Solutions [H Company] Super Fund;

5.2. the 2001 BMW motor vehicle, Registration No. […];

5.3. the property located at [W];

5.4. all funds held in bank accounts in her name;

5.5. her IAG shares; and

5.6. all household contents currently in her possession or control.

6. THAT, other than as hereinbefore provided, as against the wife, the husband shall be entitled to retain as sole and beneficial owner:

6.1. his interest in Navigator Super Solutions [H Company] Super Fund;

6.2. the 2004 BMW motor vehicle, Registration No. […];

6.3. the 1999 Mitsubishi Mirage motor vehicle, Registration No. […];

6.4. his investment in [S Company];

6.5. all funds held in bank accounts in his name;

6.6. his [N Company] shares; and

6.7. all household contents currently in his possession or control.

7. THAT otherwise than as provided for herein, the husband and the wife shall each be entitled to retain as sole and beneficial owner all personalty and financial resources including furniture, personal effects and leave entitlements presently within their respective names, possession and/or control.

8. THAT the husband and the wife shall each otherwise be and remain liable for any debts in their own name as at the date of these Orders, and in this respect shall indemnify and keep indemnified the other from any liability in relation thereto.

9. THAT in the event that the husband has not complied with his obligations pursuant to Order 2 above within 28 days of the date of making of this Order, the following provisions shall apply:

9.1. the husband shall in addition pay interest on such sum as may still be payable to the wife, at the rate prescribed by the Family Law Rules 2004, such interest to be calculated on daily balances from the due date for payment until the date of payment in full; and

9.2. the husband and the wife shall, within 42 days of the date of making of this Order, do all such acts and things and sign all such deeds, documents, instruments and writings as may be necessary to effect a sale of the [C] property, and in particular shall:

9.2.1. immediately list the [C] property for sale by public auction with such firm of estate agents as may be nominated by the wife (“the auctioneers”);

9.2.2. appoint a Solicitor to have the primary conduct of the sale, such Solicitor to be again appointed by the wife;

9.2.3. cooperate in every way with the auctioneers, including but not limited to, making the keys available to the auctioneers and allowing inspection of the [C] property at all reasonable times requested by the auctioneers, and ensuring that the [C] property including the grounds are in a neat and clean condition at the time of inspection by the auctioneers and prospective purchasers;

9.2.4. execute all documents requested by the auctioneers and the Solicitors in relation to the sale of the property;

9.2.5. attend the auction sale and, in the event that the [C] property is passed in at auction, negotiate with the highest bidder at the auction;

9.2.6. accept the advice of the auctioneers as to a suitable reserve price, and as to the acceptance of an offer below the reserve price, in the event that the [C] property is passed in at auction;

9.2.7. in the event that the property does not sell at auction, re-list the property for sale by auction at intervals of no more than 6 weeks, upon the same terms and conditions as set out above, until the [C] property is sold.

9.3. upon settlement of the sale of the [C] property, procure that the proceeds of such sale be distributed as follows, and according to the following priority:

9.3.1. in payment of the auctioneers’ costs on the sale;

9.3.2. in payment of legal costs and disbursements incidental to the sale;

9.3.3. in payment of the amount required to discharge the mortgage and equity line of credit with Westpac Banking Corporation secured on the [C] property;

9.3.4. in payment to the wife of the sum of $361,287 referred to in Order 2 hereof, together with interest thereon, calculated in accordance with Order 9.1 hereof;

9.3.5. the balance thereafter remaining to be paid to the husband.

10. THAT the husband pay the wife’s costs of and incidental to this Application.

The husband seeks orders in terms of his Further Amended Response to an Application For Final Orders as follows:
1.That within sixty (60) days of the making of these Orders, the parties do all acts and things and the parties sign all documents necessary so as to transfer the Wife’s interest in the former matrimonial home at [C] (“Former Matrimonial Home”) described in Folio Identifier […] to the Husband and the Husband refinance the same in his sole name.
2.That simultaneously with the transfer and refinancing of the Former Matrimonial Home in Order 1, the Husband pay to the Wife's solicitors, Dimocks Family Lawyers for and on behalf of the Wife, by cash or bank cheque the sum of $230,000 (two hundred and thirty thousand dollars) ("hereinafter referred to as the Principal Sum").
3.That the Wife retain all superannuation benefits held in her own name to the exclusion of the Husband.
4.That the Husband retain all superannuation benefits in his own name to the exclusion of the Wife.
5.That within 14 days of the date of these Orders the Husband transfer to the Wife 185 [S] Shares in [S Company].
6.That the Wife retain her sole interest in the property registered in her sole name at [W] contained in Folio Identifier […] ("[W] Townhouse") to the exclusion of the Husband, and be solely responsible for the mortgage in her name secured over the property.
7.That the Wife be declared solely entitled to the inheritance she received from her late father’s estate to the exclusion of the Husband.
8.That the Husband receive all the available funds in the joint mortgage offset account, being the housing loan redraw account with Westpac Banking Corporation, account number […].
9.That each party be solely liable for all debts in their own names and indemnify each other and keep the other indemnified in relation to the same.
10.That except as otherwise provided for in these Orders the Husband and the Wife shall each be the sole legal and beneficial owners of all items of all property including, but not limited to, real property, money, motor vehicles, bank accounts, insurances, equities, furniture and furnishings, superannuation entitlements and personal effects currently in the possession or control or held in or registered in their own name of each of them respectively.
11.That in the event that the Husband fails to pay the Principal Sum and any interest owing pursuant to Order 2 herein within 60 days of the date of this Order the parties shall forthwith do all acts and things and sign all documents necessary to firstly, place the Former Matrimonial Home on the market for sale with real estate agents ("Real Estate Agents") chosen by the parties, or failing agreement within 14 days, chosen by the President of the Australia Property Institute (hereinafter referred to as "Auctioneers") for sale by private treaty at a price agreed between the Husband and the Wife ("reserve price"), or failing such agreement within 14 days, at a price equivalent to the mean of two valuations by registered valuers being members of the Australian Institute of Valuers, one obtained by and at the expense of the Husband and one obtained by and at the expense of the Wife, such valuations to be made not more than two weeks apart from each other ("valuer's reserve price") and in particular they are to:
a)place the Former Matrimonial Home for sale with the Real Estate Agents for sale by private treaty at the earliest possible date;
b)execute all documents requested by the Real Estate Agents for the sale of the Former Matrimonial Home;
c)pay to the Real Estate Agents equally, any sums requested for the advertising expenses in relation to the sale;
d)execute contracts of sale;
e)co-operate in every way with the Real Estate Agents in relation to the sale of the Former Matrimonial Home including, but not limited to, providing a key to the Former Matrimonial Home, ensuring that the Former Matrimonial Home is clean and tidy when the home is being inspected by possible purchasers and allowing the Real Estate Agents access to the Former Matrimonial Home at all reasonable times for the purpose of selling the home;
f)negotiate with any purchasers in the event of the reserve price or valuer's reserve price not being reached;
g)execute all other documents necessary to complete the sale;
12.That in the event that the Former Matrimonial Home is not sold by private treaty after 3 (three) months from the date of these Orders the parties are to place the property on the market for sale by public auction within a period of a further 6 weeks and in this regard they are to accept the advice of the Real Estate Agents as to the appointment of Auctioneers to conduct the auction and in particular they are to:
a)place the Former Matrimonial Home for sale with the Auctioneers for sale by public auction at the earliest possible date;
b)execute all documents requested by the Auctioneers for the sale of the Former Matrimonial Home;
c)pay to the Auctioneers equally, any sums requested for the advertising expenses in relation to the auction(s);
d)execute contracts of sale;
e)co-operate in every way with the Auctioneers in relation to the auction of the Former Matrimonial Home;
f)negotiate with the highest bidder in the event of the reserve price or valuer's reserve price not being reached at the auction;
g)execute all other documents necessary to complete the sale;
13.That in the event of contracts for the sale of the Former Matrimonial Home not being exchanged within 14 days of the said auction, the parties shall forthwith do all such acts and things and sign all such documents as may be necessary to immediately release the Former Matrimonial Home for sale by a second public auction on a date to be nominated by the said Auctioneers and at a reserve price of 5% less than the reserve price specified for the Former Matrimonial Home for the first public auction conducted in accordance with Order 11 herein.
14.That the Husband and the Wife shall do all acts and things necessary to procure that upon the sale of the Former Matrimonial Home the proceeds of sale be paid in the following manner and priority:
i)in the payment of any mortgage(s) secured against the Former Matrimonial Home;
ii)in payment of all outstanding municipal and water rates and taxes;
iii)in payment of the Auctioneers expenses due on the sale;
iv)in payment of all legal costs and disbursements on the sale;
v)in payment to the Wife of an amount equal to 35.4% of the balance then remaining;
vi)in payment of any balance remaining to the Husband.
15.That the Husband and the Wife shall do all acts and things promptly and they shall give all consents and execute all documents in writing promptly that may be necessary to give effect to these Orders.
16.That in the event that the Husband or the Wife, for any reason, refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any part of these Orders made herein within 7 days of being requested in writing to do so, each party consents to any application being filed by the other party seeking orders pursuant to Section 106A of the Act that a Registrar of the Family Court of Australia be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect these Orders.
17.That the parties agree that the Registrar of the Court shall be authorised to execute any such necessary document, instrument or writing referred to herein upon being satisfied by affidavit that such refusal, neglect or default, as the case may be, has occurred and the parties further agree that the party whose refusal, neglect or default has necessitated such action being required to be undertaken by the Registrar of the Court shall pay all costs of and incidental to any such action of the other party on an indemnity basis.
18.Each party have liberty to apply to have this matter re-listed within 48 hours for the purposes of implementation of these Orders.
19.That the Applicant Wife pay the Respondent Husband's costs of and incidental to this Application.

Documents read

The wife relied on the following documents:
Further Amended Application   Filed: 31March 2009
Updated Financial Statement of the Wife   Filed: 19 March 2009
Affidavit of the Wife  Filed: 21 November 2008
The husband relied on the following documents:
Affidavit of the Husband sworn 27 November 2008 and filed 28 November 2008
Financial Statement of the Husband sworn 26 March 2009 and filed 27 March 2009
The evidence of the single experts is contained in the following documents:
Affidavit of Mr B, Valuer sworn 24 March 2009 and filed 26 March 2009
Affidavit of Ms. D, Valuer sworn 17 March 2009 and filed 19 March 2009

Short history

As at the date of the hearing the wife was 53 years of age and the husband was 54. They started to live together in May 1993, were married in May 1995 and separated on 1 December 1999. The parties’ divorce became final on 3 November 2008.

Issues in dispute

1.The extent of the financial contributions of each of the parties during cohabitation.
2. The extent of the financial contributions of each of the parties from separation to date.
3.The extent of the non-financial contributions of each of the parties during cohabitation.
4.The extent of the Husband's non-financial contributions since separation to date.
5.The extent of the homemaker and welfare contribution of each of the parties during cohabitation.
6.The extent of the homemaker and welfare contribution of each of the parties since separation to date.
7.Whether any adjustment should be made pursuant to section 75(2).
8.Whether there are any notional assets that need to be added back into the asset pool and the value to be ascribed to those assets.
9.Whether the Wife's inheritance represented by her equity remaining in the W Townhouse should be excluded from the asset pool.

Children

There are no children of the marriage.

Background facts

In March 1991 the wife inherited $50,000 and deposited those moneys in a Term Deposit Account.
In 1992 the wife advanced sums totalling $17,500 to the husband.
In 1992 the husband separated from his first wife but remained in their matrimonial home at C.
In 1992 the husband borrowed $10,000 from the Commonwealth Bank to pay for legal fees for custody proceedings in relation to his daughter, E.
On 17 March 1993 the husband obtained custody of E.
The parties started living together in May 1993.
The wife had two children from an earlier relationship:
T, who was born in January 1981 and at that time was 12 years of age; and
P, who was born in September 1983 and at that time was 9 years of age.
The husband’s child E was born in September 1989 and at that time she was 3 years of age.
Albeit that the value of some assets crystallised later, the wife brought the following assets into the marriage:
Car later sold for  $2,000
Interest in Y property   $151,774
Balance of inheritance  $30,000
Piano purchased for  $4,100
AMP Super       $500
$198,374
The wife also had furniture and household contents.
On the same basis the husband brought in:
Interest in C property
Value:  $300,000
Mortgages  -$67,191
$232,809
Less later payment to former wife -$102,000
$130,809
Nissan Car  $5,000
Superannuation       $2,748
$138,557
Personal loan debt of              -$8,500
Net asset    $130,057
The wife was working part-time in the medical field.
The husband worked in the medical field.
As I understand it, at all relevant times the parties were employed by the same company.
The husband was salary sacrificing into his superannuation.
The wife’s children formed part of the household for 6 years. The wife received Child Support payments from their father.
The husband’s daughter also lived in the household and he received irregular Child Support payments from her mother. E suffers from spastic dysplasia and spinal dysfunction. She required intensive assistance.
The parties opened a joint account and their wages were deposited into that account. That account was used to pay the mortgage instalments, outgoings and household expenses.
The wife arranged for E to receive disability benefits from Centrelink.
In 1994 the parties holidayed at the Gold Coast.
The wife traded-in her piano and the parties purchased an electric piano for about $6,000.
The wife sold her Ford Ghia motor vehicle for $12,000 and used that money to purchase a Honda Accord motor vehicle for $38,000. The balance of the purchase price came from lease finance. The lease payments were met by the husband as part of his salary package with H Company. The husband asserts that the wife paid half the proceeds from the sale of the Ford Ghia to her ex-husband as part of the property orders in their property proceedings.
On 24 June 1994 final property orders were made in this Court at Sydney in proceedings between the wife and her former husband. The wife received $151,774. The wife applied those funds as to $30,000 to the husband’s legal costs, as to $15,000 to the costs of the parties’ wedding and honeymoon and the balance was applied to assist in the acquisition of the C property.
The parties were married in March 1995,
On 3 May 1995 final property orders were made in this Court at Parramatta in proceedings between the husband and his former wife. Pursuant to those orders the husband paid $102,500 to acquire his former wife’s interest in their property at C, subject to a mortgage advance in the joint names of the parties of $110,000. That mortgage advance was used to pay out the existing mortgages of about $69,000. About $40,000 from that mortgage advance was paid to husband’s first wife with the balance of the $102,500 paid from the wife’s property settlement.
In 1996 the parties updated the Honda Accord motor vehicle with a trade in and lease finance.
The parties and children had a holiday to Los Angeles and Disneyland.
The parties bought a second hand Toyota Corolla for $18,000 in both their names. The husband sold his Nissan Pulsar and put the proceeds of $3,800 towards the purchase of the Toyota Corolla. The remainder of the purchase moneys came from the equity line of credit in joint names.
In 1997 the husband received 20,000 share options in S Company through his employment with H Company. Most of those shares were subsequently sold for approx. $162,000.
In 1998 the parties refinanced the former matrimonial home with the Westpac Bank in both names, with a redraw facility. There was then a Premium Loan for $60,000, a Fixed Options home loan for $80,000 and an Equity line of credit for $50,000 making a total facility of $190,000. The original mortgage of $114,702 was paid out and the surplus funds were paid into the parties’ joint account.
On 17 December 1998 or in 1999 the C property was transferred to the joint names of the husband and wife.
The parties also obtained a further $50,000 on the security of the C property by way of an Equity Line of Credit.
The Equity Line of Credit was used for improvements to the home, car purchase, and renovations to the home for the benefit of E.
In January 1999 the husband commenced further studies and was absent from the home after work hours.
The parties separated on 1 December 1999 when the wife vacated the home taking her children with her. The wife and her daughter, P moved to live with the wife’s parents.
Despite the separation the parties maintained a cordial relationship.
At that time the C property was subject to:
Mortgage debt of $132,650
Line of Credit debt of $43,000
The wife continued to contribute her salary to the joint account used to pay the mortgage payments on the home, outgoings and health insurance. There was an arrangement whereby the parties’ income was applied to joint expenses and then equally divided between them.
The wife returned to full time employment.
In February 2000 the Honda motor vehicle was sold and the lease was paid out.
In December 2000 the wife provided $16,000 to purchase S Company shares. Some shares were later sold and the husband repaid $17,000 to the wife.
The husband asserts that he paid half the dividends from the shares, to the wife until about late 2003.
On 23 March 2001 the husband commenced to sell S Company. He sold 16,600 shares, receiving a total of at least $123,888.
The husband sold a further 800 shares for an undisclosed sum.
In February 2002 the wife ceased to contribute to the mortgage, health insurance and property outgoings.
In April 2002 the wife obtained rental accommodation at a cost of about $425 per week.
In October 2003 the husband attended a conference at Hamilton Island. He used half of the dividend proceeds from S Company shares to pay for the wife's airfare and expenses so that she could accompany him.
In 2004 the parties transferred their Toyota Corolla motor vehicle to the wife's daughter, P.
In August 2004 the C property was valued at $570,000.
The wife’s father died in March 2004. The wife inherited his car and sold it for $8,000. She inherited a further $286,494 from the Estate.
In October 2004 the husband attended a conference in Hong Kong and paid for the wife to travel with him, business class, at a cost of about $6,300. That was paid from the proceeds of the sale of some of his shares in S Company. In addition, the husband alleges he paid for most of the entertainment expenses of the parties in Hong Kong.
In December 2005 the parties vacationed together in Hawaii with the costs of this holiday being shared by them.
In June 2007 the wife purchased W property for $530,000. She borrowed $370,000 from the ANZ Bank and the balance of the purchase price came from her inherited funds.
The wife first consulted her solicitors in relation to property settlement on 27 August 2007. As at 28 November 2008 the C property was security for a mortgage debt of $72,768 and a Line of Credit debt of $49,993.

Credit and Submissions

The evidence of the witnesses

The only witnesses called for cross-examination were the parties. There are not many matters in issue that fall to be determined by reference only to the oral testimony of the parties. Unremarkably, the parties do not have perfect recollection and the events associated with the commencement of their relationship occurred about 18 years ago.
The wife gave her evidence confidently. She was however forced to concede that some of her written evidence was based on deduction rather than available records or clear recollection. This applied to the purposes of cheques paid out of her account in the early days of the parties’ relationship. The wife’s Financial Statement is misleading in relation to P’s income.
The husband too was a confident witness. Again, some of his evidence is based more on supposition than recollection. His rejection of the wife’s case in relation to the mortgage raised by the parties on the C property is based on him not being able to work out why they would have borrowed $110,000, rather than any independent recollection. Again his Financial Statement is not as complete as it might be. Although the appropriate qualification is set out in the document, he has included a calculation of the proceeds of sales of S Company shares based on adding up transaction slips in his possession, in circumstances where he knew or should have known that was not complete record. His obligation is disclosure not collation.
I do not believe that either of the parties set out to mislead the Court. In the circumstances, however, I cannot simply prefer the evidence of one over that of the other on all disputed issues.

Submissions

It is submitted on behalf of the wife that $124,543 should be added back to the list of assets, being the net proceeds of sale of S Company shares minus CGT, an advance of rent and repayment of an advance made by the wife to purchase the shares. It is submitted that this brings the non-superannuation pool to a net $698,455.
It is submitted that the non-superannuation assets should be divided 55% to the wife and 45% to the husband. It is submitted that the parties are 5% apart on contributions, in favour of the wife. The wife’s case on contribution is argued in three periods, at the commencement of the relationship, during cohabitation and after separation. The wife came into the relationship with $208,374 of which the only contentious figure is the allowance of $10,000 for household contents. It is submitted that the husband brought $130,357 to the marriage, including his equity in the C property. It is submitted that during cohabitation the parties’ contributions were equal with a traditional division of labour between the parties. After separation, the husband occupied the C property. For two years the wife shared the costs of the C property and made a non-financial contribution on weekends. The wife was required to stay with her mother and then rent accommodation before buying her own home. Overall it is submitted that the wife was marginally ahead on contribution.
The argument for the wife is that the non-superannuation assets should then be adjusted by a further 2.5% to her. It is submitted that this is warranted because of the impact of the marriage on the wife’s finances. She had part-time employment to assist with E whereas the husband was able to maintain full time paid employment. He now earns $150,000 per annum compared to $65,000 for the wife. It is conceded that the wife has some equity in the W property and the husband will have ongoing responsibilities with E.
In terms of superannuation the wife contends for an equal division, reflected in a split of the husband’s interest. This is warranted because the contributions favour the husband 60% to 40% by the wife, largely built on his salary sacrifice and contributions made since separation. It is submitted that the separation balance of $80,000 was the springboard for the husband’s current interest.
It is argued that there should be a 10% adjustment in favour of the wife, leading to a split to the wife with a base amount of $68,384.
The written submissions on behalf of the husband are:
The Husband contends that on a contribution based entitlement, and excluding the Wife's equity in the [W] Townhouse, he should be entitled to a division of the net tangible assets in the range of 70% to 75% in his favour and in respect of the non-tangible assets, in the range of 80% to 82.5 % in his favour - which equates to a total overall division in his favour of the tangible and non tangible assets in the range of 71.75% to 76.25%. The Husband also contends that there should be 2.5% adjustment in his favour pursuant to s.75 (2) making a final division in favour of the Husband in the range of 74.25% - 78.75%.
1. Financial Contributions - Direct and indirect
i)Approximately $130,000 – being equity in the Former Matrimonial Home at the time the parties commenced cohabitation (see Husband's affidavit sworn 27 November 2008 – paras. 15 & 37).
ii)Approximately $7,000 – value of the Nissan Pulsar Motor Vehicle owned by the Husband at the commencement of cohabitation (para. 16).
iii)$2,748.80 – being the value of the Husband's superannuation entitlements with [H Company] Management Superannuation Plan through AMP at the commencement of cohabitation (para. 16).
iv)Approximately $1,000 - being savings held by the Husband in a bank account in his name with Westpac Bank at the commencement of cohabitation (Para. 16).
v)Furniture and fittings and household goods in the Former Matrimonial Home of unknown value at the commencement of cohabitation (para. 16).
vi)(Approximately $8,500) – monies owing to the Commonwealth Bank for a personal loan in the Husband's sole name which had been utilised for legal fees in his custody application for [E] at the commencement of cohabitation (para. 17).
vii)Approximately $150,000 – In 1997 the Husband received share options to purchase 20,000 [S Company] shares at a price of 82.5 cents for each share, through his employment with [H Company], and since exercising these options in 2001 he has sold the majority of these 20,000 shares for a total amount of approximately $162,000 and contributed these monies for the following purposes since 2001:
a)Approx. $32,000 for Capital Gains Tax on the sale of the shares;
b) $17,000 paid to the Wife to refund monies loaned by the Wife to exercise the options in 2001;
c)Approx. $12,000 paid for the Wife's rent for townhouses in [W];
d)Approx. $12,000 paid for the Wife's living expenses, including furnishings for the Wife's granddaughter and car repairs;
e)Approx. $10,000 for the Wife's travel expenses, including business class airfares to Hong Kong, entertainment and accommodation;
f)Approx. $15,000 for the purchase of a Mitsubishi Mirage motor vehicle for Husband's daughter, including modifying the vehicle and specialised driving lessons; and
g)Husband's legal expenses and other living expenses
(paras. 43, 95 – 100; 106 and Item 59 of Husband's Financial Statement sworn 26.3.2009).
viii)$27,770 - in additional payments on the Westpac Premium Housing loan paid by the Husband at the rate of $90.00 per week since separation (as at 27.11.2008) (para.125)
ix)$971.92 - Paid on 7 November 1995 from the Westpac Joint Account towards the Wife's legal costs for proceedings involving her former husband (para. 31).
x)From the commencement of cohabitation in May 1993 until separation in December 1999 - The Husband commenced paying all the repayments for the mortgage and home loan on the Former Matrimonial Home, as well as day-to-day living expenses, from his wages. Subsequently, the parties opened the Westpac Joint Account and the Husband's wages and the Wife's wages were deposited into this account and the mortgage payments, home loan and day to day living expenses were paid from this Westpac joint account (paras. 20, 44, 46 and 48).
xi)From the commencement of cohabitation in May 1993 until separation in December 1999 - The Husband contributed his daughter, [E’s] disability allowance and child support payments to the Westpac Direct Debit Account to provide for the payment of medical insurance and life assurance premiums for the family (para. 20).
xii)From the commencement of cohabitation in May 1993 until separation in December 1999 - The Husband provided a supplementary card for the Wife on his Westpac Mastercard Account, which was utilised by the Wife for day-to-day living expenses (para. 21).
xiii)The Husband worked full time throughout the period of cohabitation to date. The Husband contributed his wages throughout the period of cohabitation and since the separation on 1 December 1999 to date towards:
a) the mortgage repayments and the equity line of credit;
b)general outgoings and day-to-day household expenses for the family, including the Wife's 2 children of her previous marriage, during the period they were living with him up until 1 December 1999;
c)and he then continued to support the Wife, her daughter and her granddaughter on a regular basis over the next 8 years including paying for rent, living expenses and vacations (paras. 48; 78-92).
xiv)The Husband made a salary sacrifice of approximately $130 per fortnight from 1992 to date. These monies have been paid as additional superannuation contributions by the Husband from that time (para. 48).
xv)The Husband made the major contribution from his wages towards the cost of the Wife vacationing on the Gold Coast with her 2 children twice a year during the period that the parties cohabited (para. 50).
xvi)After separation in December 1999 until February 2002 - the Husband divided his net income, after the payment of the mortgage repayments and equity line of credit, on a 50/50 basis with the Wife, paying this amount to her in cash (para. 80, 81 and 82).
xvii)After separation in December 1999 until February 2002 - the Husband used his remaining 50% share of his net wages to top up the balance of the Westpac direct debit account to cover HCF and Life Insurance payments and other outgoings such as utilities, groceries and entertainment and pay for child care for [E] (para. 83).
xviii)Since February 2002 to date, a period of 7 years - the Husband solely has paid the following:
(a)Both mortgage payments;
(b)Equity Access Loan;
(c)HCF payments;
(d)Life Insurance payments until August 2003 when they were terminated;
(e)House insurance;
(f)Contents insurance; and
(g)Council rates
(paras. 85 & 125).
xix)The Husband paid approximately $1,600 to replace furnishings removed from the Former Matrimonial Home by the Wife in February 2002 (para. 88).
xx)After separation an amount of $2,500 was withdrawn from the joint Equity Line of Credit by the Husband to pay towards the purchase of a Hyundai Excel motor vehicle for the Wife's daughter, [P] (para. 99).
xxi)From March 2001 until September/October 2003 – the Husband shared the dividends he received from his holdings of [S Company] shares with the Wife, giving the Wife cash and airfares to the total value of approx. $4,573.20 (para. 103).
xxii)In approx. January 2004 – the Husband paid $700 for furniture for the Wife's daughter, [P] to be used for her baby, which was due in approx. 2 months (para. 105).
xxiii)From separation until March 2007 – the Husband paid for car repairs for the Wife in the total sum of approx. $4,000, and he bought (and then he fitted) brakes for the vehicle (para. 108).
xxiv)In 2001 the Husband paid for a new water heater for the Former Matrimonial Home at a cost of $1,200 and in 2007 had repairs done to the pool pump (para.125);
2.Non Financial Contributions - Direct and indirect
i)The Husband contributed to improvements to the garden at the Former Matrimonial Home and arranged for the construction of the pergola (para. 51).
ii)The Husband performed handyman jobs at the Former Matrimonial Home and looked after the pool, did all of the lawn mowing, edges and weeding of the garden, spending an estimated 4 to 5 hours each week on these activities (para. 52).
iii)The Husband repainted the interior of the home entirely on at least one occasion, and painted other rooms on more than one occasion, with the assistance of the Wife (para. 53).
iv)The Husband built much of the main furniture in the Former Matrimonial Home such as the sideboard and hutch, a large wall unit, bookcase and TV unit. He also built bookcases and desks for the children; these tasks took many weeks of the Husband's spare time (para. 53).
v)During the period of cohabitation the Husband:
a)washed the 2 cars every weekend and polished them regularly. This task took approximately 1 hour each weekend;
b)serviced the cars, undertaking oil changes, tuning, brake replacement and most other matters that were necessary, including unexpected repairs and including the car purchased by the Wife's son, T; and
after separation:
c)repaired and resprayed part of the Hyundai Excel prior to its sale by the Wife
(paras. 54 & 119).
vi)During the period of cohabitation the Husband undertook the work necessary to replace a large pergola in the back yard of the Former Matrimonial Home, removing the paving and digging holes to pour the concrete footings. With the assistance of his brother, the Husband put in the second posts for the pergola, attached the roof sheets and repaved the areas around the piers, this task taking both days of several weekends (para. 55).
vii)Since separation - The Husband has undertaken the following conservation and improvements to the Former Matrimonial Home:
a)repainted the FMH less than a year ago;
b)continued to mow the lawns, do the gardening and clean the pool;
c)perform any necessary repairs and maintenance;
d)clean the FMH and keep it in good repair; and
e)steam clean the carpets
(para. 126)
3.Welfare of the family and Homemaker contributions:
i)During the period that the parties were cohabiting, the Husband collected his daughter, [E]rom after school care on the way home from work (para. 59).
ii)During the period that the parties were cohabiting the Husband took his daughter, [E]o her physiotherapy appointments (para. 61).
iii)During the period that the parties were cohabiting the Husband cared for the Wife's children, [P] and [T], took them shopping, took them to restaurants, built furniture for [P], such as reproduction antique desks and book cases, taught [T] how to service and maintain cars and do panel beating and re-spraying of cars. The Husband also took all 3 children for holidays to the Gold Coast in 1994 and then to Disneyland, in Los Angeles, in 1996 as well as to other locations (para. 63).
iv)During the period that the parties were cohabiting the Husband would do the laundry, household cleaning and cooking on weekends and was responsible for doing his own ironing (para. 64).
v)Since the separation of the parties in December 1999, the Husband would get [E] ready for school and take her to before school care and collect her from after school care on his way home from work (para. 77).
vi)After the separation the Husband assisted the Wife's parents when they moved from [F] to a retirement village, spending 2 days of his annual leave helping clean up their property at [F] and moving them to the retirement home (para. 86).
vii)After the separation the Husband assisted the Wife to move furnishings from the Former Matrimonial Home to the [W] townhouse which she commenced renting by hiring, and driving, a truck, at a cost of $200, and physically moving the furnishings for the Wife (para. 88).
viii)In approximately 2004, the Husband again assisted the Wife to move into the second townhouse rented by her at [W], hiring a truck and physically moving the Wife's furnishings into this second townhouse. In 2006, the Husband again assisted the Wife in moving from the second rented townhouse the [W] townhouse, which she had purchased for $530,000 (para. 91).
ix)From the date of separation until March 2007 the Husband took the Wife out to dinner most Saturday evenings at his expense (pars. 92 & 102).
x)Since separation the Husband has continued to care for his daughter, [E] helping her with shopping, housework, filing her car with petrol, and frequently driving her to TAFE college as it is difficult for her to get disabled parking (para. 127, 128 & 129).
H.Section 79(4)(d):
1.The proposed orders will have no effect on the earning capacity of either party.
H.         Section 79(4)(e):
Relevant Section 75(2) Factors:
Sub-section:
a)The Wife is 53 of years and is in good health;
The Husband is 54 years of age and is in good health.
b)i). The Wife has the capacity for gainful employment, currently being employed full time as a medical scientist, and she states that she has secure employment having been employed by her current employer for 31 years.
The Husband has the capacity for gainful employment, currently being employed full time as a microbiologist, having been employed by his current employer for 19 years and 6 months.
ii).The income, property and financial resources of the Husband and the Wife can be summarised as follows:
Wife:
1.The Wife alleges in her Financial Statement filed herein that she is currently earning $1,368 per week ($71,136 per year). The Wife alleges that she has expenses totalling an estimated $1,918 per week leaving a deficit of expenditure over income of ($550 per week).
2.The Wife alleges that, apart from her joint interest in the FMH, the only other assets that she has are:
i)Sole interest in [W] Townhouse        $530,000
ii)Bank savings valued at           $850
iii)IAG shares valued at   $2,863
iv)BMW motor vehicle valued at          $18,000
v)Household contents valued at   $20,000
Total:$571,713
3.Apart from the joint liability in relation to the FMH the Wife has the following liabilities:
i)ANZ mortgage re [W] Townhouse      $362,662
ii)ANZ Visa cards   $15,782
iii)Lease BMW Financial Services         $14,042
Total:$392,486
4.The Wife has superannuation entitlements valued at $41,910.
Husband:
1.The Husband receives income from salary and dividends in the sum estimated at $2,504 per week ($130,208 per year). The Husband has expenses totalling an estimated $2,265 per week (including only the minimum payment per week on his credit cards – items 30 and 33 of Husband’s Financial Statement will need to be amended) leaving an excess of income over expenditure of $239 per week.
2.Apart from his joint interest in the FMH, the only other assets that the Husband has are:
i)Bonus Saver account   $5
ii)[S Company] shares valued at           $10,044
iii)[N Company] shares valued at   $651
iv)BMW motor vehicle valued at                    $18,000
v)Mitsubishi Mirage motor vehicle valued at   $7,500
vi)Household contents valued at   $10,082
Total:$46,282
3.Apart from the joint liability in relation to the FMH, the Husband has the following liabilities:
i)Westpac Mastercard    $9,121
ii)HSBC Visa card          $9,000
iii)Westpac car loan         $17,799
Total:$35,920
4.The Husband has superannuation entitlements valued at $178,607.
d) i).The Wife has commitments to support herself as set out in her Financial Statement filed herein.
The Husband has commitments to support himself only as set out in hisFinancial Statement filed herein.
ii).In addition to his commitments, the Husband has a duty to maintain his daughter, [E] who lives with him and suffers from spastic diplegia. The Husband supplies [E] with food, clothing, petrol, car insurance and registration, day-to-day living expenses, health insurance, textbooks for university and her university related expenses, which he estimates at $250 per week.
[E] will continue to be dependent upon the Husband for the foreseeable future until she marries or finds the fulltime support of a partner.
The Husband also continues to pay health insurance for the Wife to date in the estimated sum of $28 per week.
e)The Husband has a responsibility to support his disabled daughter, [E].
f)The Husband does not have any eligibility for a pension, allowance or benefit.
The Husband does not know if the Wife has any eligibility for a pension, allowance or benefit.
g)The Husband and Wife maintained a reasonable standard of living throughout the period of cohabitation and marriage. The Wife has continued to have a reasonable standard of living now having her own townhouse at [W]. The Husband has maintained a reasonable standard of living having continued to reside in the Former Matrimonial Home since separation in December 1999.
m)The Husband is not cohabiting with any other person.
The Husband does not know if the Wife is cohabiting with any other person.
n)The terms of the orders posed to be made pursuant to s79 by the Husband as compared to those proposed by the Wife in relation to the payment of a lump sum to the Wife will need to be considered in the light of the Husband's capacity to borrow sufficient monies to purchase the Wife’s interest in the FMH having regard to the Husband’s current financial resources and his desire to remain living in the FMH for the purpose of providing a home for his daughter, [E] which has been modified for her disabilities.
o)On behalf of the Husband it is submitted that the justice of the case requires the following facts and circumstances to be taken into account:
i).The Wife has had the sole benefit of an inheritance valued in excess of $286,494 since July 2004, while the Husband has continued to pay all of the outgoings referred to above, such as the Wife's HCF benefits, he being unaware of the receipt of this inheritance by the Wife for some time.
ii).The Wife will have the benefit of the asset remaining from the inheritance, being the [W] Townhouse, and the Husband under the terms of the orders sought will need to further increase his liability under the mortgage secured against the Former Matrimonial Home to pay the Wife for her interest in the Former Matrimonial Home.
I. CONCLUSION
Contribution based entitlement:
1.          Tangible Assets - Taking into account all the contributions made by the Husband as set out under S79 (4)(a)-(c) above over the period of cohabitation, of 6 years 7 months, and during the period from separation until March 2007, a period of 7 years 3 months, making a total period of 13 years 10 months, and excluding the Wife's inheritance represented now by her equity in the [W] Townhouse from the asset pool, it is submitted that the Husband’s contributions should be considered to be in the range of 70% - 75% with those of the Wife being in the range from 30% down to 25%.
2.          Non Tangible Assets - In respect of the non tangible assets, being the Husband’s and the Wife’s superannuation entitlements totalling $220,517, (the Husband at $178,607 and the Wife at $41,910), the fact that both parties entitlements were minimal at the time of the commencement of cohabitation and the fact that the parties only cohabited for a period 6 years 7 months - the only period when it could be argued that the Wife could be said to have made any contribution to the Husband’s superannuation and with such contribution ceasing at separation - whereas the Husband continued to make contributions towards the Wife’s costs of living and other expenses from the separation in December 1999 until the present time, with additional payments by way of salary sacrifice at $130 per fortnight - it is submitted that, taking into account each party's contribution to the others superannuation entitlements, it would be reasonable to allow a contribution based entitlement in favour of the Husband in the range of 80% to 82.5% in respect of the value of the total superannuation entitlements at $220,517.
Conclusion on contributions re tangible & non tangible assets:
3.          On this basis it is submitted that there should be a finding of a contribution-based entitlement in favour of the Husband in respect of combined tangible and non tangible assets (but excluding the Wife's inheritance represented now by her equity in the [W] Townhouse from the asset pool) in the range of 71.75% to 76.25%.
Conclusion on Section 75(2) Adjustment:
4.Section 75(2) Adjustment - In view of the factors pursuant to S75 (2) referred to above, including the Husband’s continuing commitment to care for his daughter for the foreseeable future, [E], that there should be an adjustment in the Husband's favour in the range of 2.5%.
Conclusion on overall division of combined tangible and non-tangible assets:
5.Therefore, the assets of the parties, excluding the Wife's equity in the [W] Townhouse, should be distributed:
i)in the range of 74.25% - 78.75% in favour of the Husband;
and
ii)in the range of 25.75% down to 21.25% in favour of the Wife.
J.JUST AND EQUITABLE
Having regard to all of the matters that should be taken into consideration in this case, including all of the matters referred to above, the size of the net asset pool excluding the Wife's inheritance represented now by her equity in the [W] Townhouse from the asset pool, an overall percentage division in favour of the Husband of 74.25% to 78.75% is a just and equitable division of all the assets.

In oral submissions for the husband it is argued that the sale of shares realised $172,757. I am not sure what amount the husband would have added back to the pool.
It is submitted that the non-superannuation assets should be divided 55% to the wife and 45% to the husband. The husband’s case on contribution is also argued in three periods, from the commencement of the relationship for separation, from separation to February 2002 and from February 2002 to the date of the hearing. It is argued that the wife came into the relationship with $181,000, not the $208,374 she claimed. Thus the wife was ahead initially but with other contributions made over the period, the husband argues that the parties’ contributions were equal to that time. The second period involved the wife living away from the C property and rarely contributing, although this was a short period, it is submitted that the husband was ahead on contributions. In the last period the husband’s contributions are said to be much greater than those of the wife as to bring the contributions to 70% by the husband and 30% by the wife. In that last period he paid towards her rent, paid for their entertainment and travel and other living expenses.
The husband wants to pay the wife $235,000.
In terms of superannuation the husband contends for a division in the proportions 80% to the husband and 20% to the wife, which is about the proportions of their current entitlements. This is said to be warranted because the contributions favour the husband very significantly. The husband’s interest was largely built since 1999. The husband would have no adjustment to those interests and seeks that the superannuation be left as it is.

The approach in proceedings under section 79

The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 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. Third, I should identify and assess the relevant matters referred to in s 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. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1]
[1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370
There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. The Full Court has supported such an approach.

The property of the parties at the date of the hearing

The Court is required to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
There are circumstances whereby assets are included in the list for division although they no longer exist. The same logic would apply to the exclusion from the relevant list of liabilities, debts that do exist at the date of the hearing. In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30]    To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)      Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b)      Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c)       In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)      where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)      where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
The parties have settled a joint balance sheet and the only issues left to be determined relate to:

The value credited to the husband for the sale of S Company shares.

The husband asserts that the proceeds received by him amounted to about $132,000. In cross-examination he conceded that the total proceeds could be $185,114. He also conceded that his recourse to the sale of shares was not a matter of necessity. It is conceded on behalf of the wife that the following deductions should be made:
CGT paid on the sales  $31,571
Contributions to the wife’s rent  $12,000
Repayment of wife’s advance for original purchase         $17,000
$60,571
Thus it is submitted on behalf of the wife that $124,543 ($185,114 - $60,571) should be added back to the list of assets. A significant proportion of those moneys was applied to his legal fees and that would be added back in any event.
There remains a dispute about the extent to which the wife benefited from expenditure by the husband after separation. The husband claims about $10,000 in travel costs. He also claims unquantified entertainment costs and other things.
The general requirement is to identify and value assets as at the date of the hearing. It falls to the wife to make the case that the husband should be credited with $124,543 by way of preliminary distribution of funds received on the sale of shares. There is then a matter of shifting forensic onus, with claims made and rebutted. The husband conceded in cross-examination that it was not necessary for him to sell the shares to make the payments he had to make.
This issue is not capable of a precise calculation. Doing the best I can I will find that the husband has not adequately accounted for the application of about $100,000 of the S Company shares proceeds. I will add that sum back into the pool as a notional asset in the hands of the husband.

Paid Legal Fees

Both parties have paid legal fees for these proceedings. The wife’s payment was made from borrowings and an inheritance. The parties have agreed to exclude from the relevant list of assets the assets acquired after separation by the wife with her inheritance. The husband has paid $42,753.30 in legal fees. The source of funds for those payments was the husband’s earnings and from the sale of S Company shares. To add back that amount would represent a double counting given the source of the funds.

The proceeds of sale of a Hyundai motor vehicle

There was cross-examination of each of the parties in relation to the proceeds of sale of a Hyundai motor vehicle bought by the wife’s daughter, P. One half of the purchase price came from the parties’ line of credit. The car was sold after separation and the net proceeds of $1,500 were retained by P. The husband conceded in cross-examination that he did not require the wife to account to him for one quarter of that amount.
I find that the assets are:

Assets

Value

C property

$650,000

Wife’s IAG shares

$2,863

Wife’s household Contents

$20,000

Husband’s S Company Shares

$10,044

Husband’s N Company shares

$651

Household contents at C

$10,082

Add back of proceeds of S Company shares sold by husband

$100,000

Total

$793,640.00

Superannuation

Value

Navigator Super Solutions – H Company (H)

$178,607

Navigator Super Solutions – H Company (W)

$41,910

$220,517.00

Liabilities:

The parties agree that the relevant liability is:

Liabilities

Amount

Home Mortgages Westpac Banking Corporation C property

$119,728

Total

$119,728.00

Net assets

The net non-superannuation assets have a value of $673,912 ($793,640 - $119,728). The parties’ superannuation has a value of $220,517.

Financial Resources

The wife owns W property, subject to a mortgage. Otherwise the parties’ disclose no financial resources.

Contributions

The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[2]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[3].
[2] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[3] In the Marriage of Shewring (1987) l2 Fam LR 139
As to whether the Court should apply the considerations in section 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”
Here the case has been argued on the basis of two pools, made up of superannuation and non-superannuation assets. On that basis, I am obliged to deal with the assets in a similar way.

Contributions to non-superannuation assets

Section 79(4)(a) Contributions

Financial contributions, both direct and indirect were made by each of the parties.
The wife made the greater initial contribution. She brought into the relationship $198,374. The husband brought in $130,357.
During cohabitation the husband made a greater financial contribution, being on a higher wage rate and working full-time.
After separation, for two years the wife shared the costs of the C property but did not have the full-time use of the property. She stayed with her mother and then rented accommodation before buying her own home. During that two year period the parties shared their income and family expenses. They combined their incomes, paid the outgoings on the C property and then there was a reconciliation of the remaining net income which was equally divided between them. I have referred above to the application of the proceeds of the sale of S Company shares to the wife’s rental costs at one point. Thereafter the wife made no financial contribution. The husband paid the outgoings on the property but benefited from living there.
There is reference in the evidence to the things paid for by the parties during the period of their cohabitation and since. It is not necessary to detail those things again here. They were funded from the parties’ initial contributions and the funds that came to them during the marriage (their incomes, including child support and a Centrelink benefit for E, the proceeds of sale of shares and an inheritance). I accept that during their cohabitation and until February 2002, the parties generally applied their funds to joint purposes.

Section 79(4)(b) contributions

This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions. The husband:

Made improvements to the garden at the Former Matrimonial Home and arranged for the construction of the pergola;
performed handyman jobs at the Former Matrimonial Home and looked after the pool, did all of the lawn mowing, edges and weeding of the garden. He spent an estimated 4 to 5 hours each week on these activities;
repainted the interior of the home entirely on at least one occasion, and painted other rooms on more than one occasion, with the assistance of the Wife;
built much of the main furniture in the Former Matrimonial Home such as the sideboard and hutch, a large wall unit, bookcase and TV unit. He also built bookcases and desks for the children; these tasks took many weeks of the Husband's spare time;
washed the 2 cars every weekend and polished them regularly. This task took approximately 1 hour each weekend;
serviced the cars, undertaking oil changes, tuning, brake replacement and most other matters that were necessary, including unexpected repairs and including the car purchased by the Wife's son, T; and
after separation he repaired and resprayed part of the Hyundai Excel prior to its sale by the Wife;
undertook the work necessary to replace a large pergola in the back yard of the Former Matrimonial Home, removing the paving and digging holes to pour the concrete footings. With the assistance of his brother, the Husband put in the second posts for the pergola, attached the roof sheets and repaved the areas around the piers, this task taking both days of several weekends;
repainted the home less than a year ago, cleaned the C property and kept it in good repair.

The wife assisted the husband redecorate the interior of the C property. She supervised tradesmen when the driveway and new pool area were constructed and the fans were installed. She helped the husband chose curtains, furniture and furnishings.
The parties separated in December 1999. Until February 2002 the wife returned to the C property most weekends and did work at the home during those times.
The husband made the greater non financial contribution.

Section 79(4)(c) contributions

This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage. Here there are no children who fall within the relevant definition. That is not the end of the matter. Contributions made by each of the parties to the child/ren of the other can be recognised and I will do that under section 75(2)(o). See In the Marriage of Robb.
The parties arranged for the wife to be available for the homemaker role.
The wife primarily undertook vacuuming, dusting, cleaning bathrooms, preparing meals, grocery shopping, mopping the floors, making the beds, changing the sheets, doing the laundry, hanging the washing out and folding it, stacking and emptying the dishwasher, putting dishes away, gardening and pool cleaning.
That is not to say that the husband did not assist. During the period that the parties were cohabiting the husband did the laundry, household cleaning and cooking on weekends and was responsible for doing his own ironing.
The wife made a greater contribution by way of homemaker, than did the husband.

Conclusion on Contribution

Significant contributions were made by the parties over a substantial period. I find that the various contributions of the parties would properly be acknowledged by a finding that they were made in equal proportions.

The other matters in Section 79

Once contributions have been assessed, the other factors in section 79(4) need to be considered. They are:

Section 79(4) (d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no relevant effect.

Section 79(4)(e) - Section 75(2) Factors

The relevant matters in Section 75(2) would seem to be paragraphs (b), (j), (k) and (o).

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

First, as to the age and state of health of each of the parties. The wife and husband are 53 and 54 years of age, respectively. There is no evidence about the health of either party.

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

The wife’s income is $1,368 per week made up of $1,256 by way of salary with H Company, $2.00 in dividends on IAG shares and $110 in superannuation contributions made by her employer.
The wife lives in her W property with her daughter P and grand-daughter. P has an income made up of paid employment and benefits. The wife does not know what her income is but it could be of the order of $600 per week. P contributes $125.00 per week to household expenses.
The wife’s expenses are as follows:

Expense

Amount

Income tax

$275.00

Superannuation contributions

$25.00

Mortgage payments on the W property

$679.00

Council rates and strata levy

$70.00

Water rates and electricity

$48.00

Home contents insurance NRMA

$10.00

Comprehensive car insurance NRMA

$31.00

Motor vehicle registration

$14.00

Hire purchase BMW motor vehicle LJ0055

$106.00

GE line of credit

$25.00

Visa card repayments ANZ

$235.00

All other expenditure

$400.00

Total

$1918.00

Of that expenditure $200 per week is expenditure on behalf of her daughter and granddaughter. With the contribution of $125 per week from P, the wife has a weekly deficit of $535.
Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
It is not suggested that the wife is not fully exercising her earning capacity.
The husband earns $2,504 per week made up of $2,479 in wages from H Company and $25 per week in dividends on S Company shares. He lives with his daughter, E who has an income of about $200 per week in the form of a Centrelink benefit.
The husband puts his expenditure as follows:

Expense	Amount
Income tax	$736.00
Navigator Super Solutions H Company	$65.00
Mortgage payments Westpac Bank	$282.00
Rates	$92.00
Home Building Insurance premiums - NRMA	$11.00
Home Contents Insurance premiums – NRMA	$10.00
Health Fund contributions - HCF	$55.00
Motor vehicle insurance – NRMA BMW	$29.00
Motor vehicle insurance – NRMA Mitsubishi Mirage	$44.00
Motor vehicle registration BMW	$9.00
Motor vehicle registration Mitsubishi Mirage	$9.00
Hire purchase lease payments – Westpac Bank BMW (from pre-tax income)	$325.00
Loan repayments Equity Access Loan - Westpac Bank	$88.00
Credit card HSBC	$50.00
Mastercard repayments Westpac Bank	$60.00
Day to day living expenses including food, utilities, petrol and expenses towards the care of E	$400.00
Total	$2265.00

The husband pays the HCF contributions that cover the wife and estimates that of his living expenses about $250.00 is for the benefit of E. On those figures, the husband has a small weekly surplus. It is not suggested that the husband is not exercising his earning capacity.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The parties’ children are all over 18 years of age.

(d) commitments of each of the parties that are necessary to enable the party to support:

himself or herself; and
a child or another person that the party has a duty to maintain;

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

I have set out the evidence in relation to the parties’ expenses.

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party;

Neither of the parties receives a Centrelink benefit. The parties have interests in superannuation funds.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

There is little evidence in relation to the standard of living of the parties during the marriage. They had some overseas travel but much of it was associated with their employment.

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

The parties are highly qualified and there is no evidence of either planning further study or intending to set up in business.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

This is not a relevant matter.

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

The wife undertook the main parenting role and that allowed the husband to maintain employment on a full-time basis. Her paid employment was 12 hours a week until E started school. She gradually increased her hours until her taxable income reached $27,623 in 1999.
The husband undertook studies in Management in 1998. That involved classes one night a week and one weekend a year.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The parties’ arrangement had the wife taking the main parenting role and leaving the husband to pursue full-time employment. His job took him away from home for periods. It is likely that the marriage restricted the wife’s earning capacity in the sense that she was not able to continue a progression in her field and presumably lost the benefits of a long history of full-time employment such as long service leave and opportunities for promotion.

(l) the need to protect a party who wishes to continue that party's role as a parent;

This is not relevant.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

I have set out that evidence above.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

There is no child support.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

Contributions were made by the parties to their respective children. The Full Court considered the issue of contributions made to children who are not the children of both parties to a marriage. It has been held that contributions to such children cannot be recognised under section 79(4)(c). In the Marriage of Robb(1994)18 Fam LR 489 the Full Court dealt with that interpretations made by Mullane J at first instance. The Full Court said at p 500:
This construction is, in our view, placed beyond doubt by his Honour's opening statement in relation to ``Contributions To Property And To The Welfare of The Family'’ (Paras (a), (b) and (c) of subs 79(4) of the Family Law Act) where he said:
For the purposes of subs 79(4)(c) the family does not include the children K and B of the wife's previous marriage as they are not within the usual meaning of the expression, ``children of the marriage'’, used in that paragraph. (See the Full Court of the Family Court of Australia in In the Marriage of Mehmet (1986) 11 Fam LR 322 ; [1987] FLC 91-801 but cf Cohen J in In the Marriage of Molen (1992) 16 Fam LR 203 ; [1993] FLC 92/2-344 at Fam LR 205-6 FLC 76,649/2-50).
`Thus, we do not think that his Honour fell into the error of double counting in respect of the husband's contribution to the welfare of B and K and ground 8 is therefore not made out.
In relation to ground 4, just as the husband's contribution to the welfare (including the financial support) of the wife's children of her former marriage, for the reasons given by his Honour in the passage from his judgment last quoted (with which we agree), could not be taken into account as a contribution by him under s 79(4)(c), so too the wife's contribution to the welfare of those children could not be taken into account on that basis. However, as his Honour did (in our view correctly) take the husband's contribution to those children into account under s 75(2)(o), the question arises whether he should have taken the wife's contribution to the welfare of those children into account also, under that paragraph of s 75(2). This raises the question whether the fact that a party to a marriage contributes during that marriage to the welfare of his or her own children of a prior marriage is a fact or circumstance which the justice of the case requires to be taken into account in that party's favour, at least, in circumstances where the other party's contribution to that welfare has been taken into account as a fact or circumstance in that party's favour.
In considering whether the justice of a case requires some act done by a party to be taken into account under s 75(2)(o), the court should, we think, 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.
In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss 66a and 66b of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s 66g, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Pt VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case.
Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s 75(2)(o), the same cannot be said of the wife's contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
Turning, then, to ordinary notions of justice and equity, we are of the view that such notions do not call for any allowance to be made in the wife's favour, in the property proceedings between the husband and wife, because she honoured her legal obligation to maintain her own children of a prior marriage. We believe that a failure to make such an allowance would not offend the ordinary reasonable man or woman's notions of justice.
In our view, therefore, his Honour did not err in failing to give any weight to the wife's contributions to the welfare of her own pre-marital children.
Thus the only relevant contributions made to E are those of the wife. The only relevant contributions to P and T are those of the husband. The latter contributions did not cease when the children were young. For example, the husband taught T some panel beating and spray painting techniques.
The evidence about these issues does not permit definitive findings but it is likely that the child support paid in respect of the wife’s children was greater and more consistently paid than the child support paid for E by her mother. Because of her younger age and impaired health, it is likely that E’s care was more time consuming and difficult than was the case for the wife’s children. In that regard the wife had primary responsibility for:

Taking E to weekly physiotherapy appointments;
Taking E to weekly hydrotherapy appointments;
Taking E doctors and specialist appointments;
Teaching E to use crutches;
Performing physiotherapy with E for a number of hours each day at the direction of her physiotherapist;
Preparing her meals; changing her nappies and toilet training her;
Bathing and dressing her;
Working in the canteen at E’s school;
Reading to E;
Giving her medication and filling prescriptions;
Looking after E for school holidays and when the husband was away on weekends with his work.

E could only crawl up until she was 4 years of age and the wife needed to lift her in and out of cars and carry her when she became tired.
The wife was actively involved in the various legal proceedings between the husband and his ex-wife. The original custody case was settled in 1993. The property case was concluded in 1995. A further parenting case commenced in 1996 and was fixed for a 4 day trial in 1997. Further parenting proceedings were instituted about the time of separation and those proceedings were formally resolved in 2000.

(p) the terms of any financial agreement that is binding on the parties.

There was no binding agreement made between the parties.

Section 79(4)(f)

There are no other relevant orders made under the Family Law Act 1975.

Section 79(4)(g)

There is no child support.

Conclusion

The wife seeks a 5% adjustment under section 75(2). The husband’s position in not specific on this issue. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:

ØThe husband has a greater income and income earning capacity than the wife;
ØThe husband will continue to have responsibility for E;
ØThe wife has a vested inheritance;
ØThe husband provided support and accommodation to the wife’s children;
ØThe wife provided intensive support and accommodation to E.

These matters call for countervailing adjustments but taken together, in my view, they warrant no adjustment from the distribution based on contributions alone. The 5% adjustment sought by the wife would represent over $80,000 and a difference in the final property distribution of twice that sum. Such an adjustment, or indeed any adjustment of real significance would ignore the valuable contributions of the parties. There will be an equal division of the non superannuation assets.

Contributions to superannuation assets

Section 79(4)(a) Contributions

Financial contributions, both direct and indirect were made by each of the parties.
The husband made the greater financial contribution.

Section 79(4)(b) contributions

This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
There is no evidence of non-financial contributions to superannuation.

Section 79(4)(c) contributions

This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage. Here there are no children who fall within the relevant definition. That is not the end of the matter. Contributions made by each of the parties to the child/ren of the other can be recognised and I will do that under section 75(2)(o). See In the Marriage of Robb.
I am satisfied that the wife undertook the main homemaker role during cohabitation. It was the parties’ arrangement that she did not have full-time employment.

Conclusion on Contribution

The wife argues that the superannuation contributions favour the husband 60% to 40% by the wife, largely built on his salary sacrifice and contributions made since separation. It is submitted that the separation balance of $80,000 was the springboard for the husband’s current interest. The husband contends that it would be reasonable to allow a contribution based entitlement in favour of the Husband in the range of 80% to 82.5% in respect of the value of the total superannuation entitlements.
The financial contributions greatly favour the husband. They are balanced to some extent by the wife’s homemaker contribution. In my view the proportions 70% by the husband and 30% by the wife properly reflect the share of contributions.

The other matters in Section 79

The wife argues for an equal division of superannuation, reflected in a split of the husband’s interest. The argument is that there should be a 10% adjustment to the 60:40 outcome based on contributions alone. The husband submits that there should be no adjustment to the 80:20 outcome he argues for.
The findings made above in relation to the other factors in section 79(4) in respect of non-superannuation assets apply with equal force to the superannuation assets. However, unlike the non-superannuation assets, the division of superannuation assets based on the parties’ contributions will favour the husband 70% compared to 30% for the wife. In that context it would be appropriate for a modest adjustment to the wife. The relevant factors become:

ØThe husband has a greater income and income earning capacity than the wife;
ØThe husband will continue to have responsibility for E;
ØThe wife has a vested inheritance;
ØOn the basis of contributions alone the husband would be entitled to $154,361.90 in superannuation and the wife to $66,155.10;
ØOf the parties only the husband has any expectation of a meaningful contribution to self funded retirement from superannuation.

In those circumstances an adjustment of 5% is warranted in favour of the wife. The parties’ superannuation has a value of $220,517. A distribution 65% to the husband and 35% to the wife would have the husband with a superannuation interest of $143,336.05 and the wife with $77,180.95.

Just and Equitable

The net non-superannuation assets have a value of $673,912 ($793,640 - $119,728).
The parties both seek that the husband retain the former matrimonial home. An equal division of the non-superannuation assets would leave each of the parties with about $336,956. The wife has or has had the benefit of:

Assets

Value

Wife’s IAG shares

$2,863

Wife’s household Contents

$20,000

Total

$22,863.00

In order to bring her to 50% she should receive $314,093. I will round that down to $314,000. The wife will retain her interest in the W property. She will owe any current personal debts, including her legal fees.
The parties agree that the wife will take the following items from the C home:
(a)gas heater, owned by the wife before the marriage;
(b)boxed cutlery set, being a wedding gift;
(c)table in the C entrance/hallway, acquired around 1995;
(d)the outdoor dining setting and tableware, acquired in or around 1997;
(e)Personal items, including a collection of Beach Boys records and CDs;
(f)copies of photographs at the C property;
The husband will retain the electric piano and the balance of the contents of the home. There is mention in the evidence of the husband assisting the wife to move some items of personalty after February 2002. I take it nevertheless that the husband retains a substantial proportion of the contents of the C property. On that basis I will not change the reference to the value of those contents not their attribution to the husband.
That will leave the husband with the following non-superannuation assets:

Assets

Value

C property

$650,000

Husband’s S Company Shares

$10,044

Husband’s N Company shares

$651

Household contents at C

$10,082

Add back of proceeds of S Company shares sold by husband

$100,000

Minus Home Mortgages Westpac Banking Corporation C property

-$119,728

Payment to the wife

-$314,000

Total

$337,049.00

The orders I propose commit the husband to make a payment to the wife. In the event that he cannot make the payment, the C home will be sold and the wife will receive a payment from the net proceeds of sale. The wife has sought payment within 28 days. I will allow 2 months for the husband to make the necessary arrangements.
The parties’ superannuation has a value of $220,517. The husband’s interest stands at $178,607. For the wife to come up to 35% of the parties’ superannuation she would need an extra $35,270.95. The options are to order a split of the husband’s superannuation based on that amount or make an adjustment from the non-superannuation assets.
The wife seeks a superannuation split and the husband does not. In amending the Family Law Act 1975 to permit the splitting of superannuation payments the Parliament has indicated a preference for dealing with superannuation in that way. Over recent years Government policy has included encouragements to individuals making better provision for self-funded retirement.
There are advantages and disadvantages to superannuation interests. They cannot normally be accessed before the member reaches a certain age and leaves the workforce. The Court can take judicial notice that of recent times many superannuation funds have made a loss. Thus it can be unfair to require one party to retain a disproportionate amount of the superannuation interests and the other to retain a disproportionate amount of the non-superannuation assets.

On the other hand, the Court can take judicial notice of the fact that preferential treatment is afforded to assets and income in the form of superannuation after 60 years of age and that ameliorates the disadvantages of taking funds in the form of superannuation compared to accessible assets.
In those circumstances, the Court would not lightly leave one party with most of the superannuation interests and the other with mostly non-superannuation assets.
I will order a split of the payment of the husband’s interest based on $35,271.
The trustee of the husband’s fund has been served with the form of orders sought by the wife and but for a correction in relation to the name of the trustee, has no objection to an order in that form.[4]
[4] Letter from Aviva dates 1 April 2009 - Exhibit 9

Conclusion under Section 79

Significant contributions were made by each of the parties. They acquired assets and provided a secure home for their children. In the course of over 6 years of cohabitation and since, the parties shared the work of the family in different ways. The orders I propose will effect a just and equitable settlement of their property.

I certify that the preceding one husband and seventy two (172) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate:

Date: 15 May 2009

[2009] FamCA 386

15 May 2009

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Procedural Fairness

Jurisdiction

Costs

Statutory Construction

Assets	Value
C property	$650,000
Wife’s IAG shares	$2,863
Wife’s household Contents	$20,000
Husband’s S Company Shares	$10,044
Husband’s N Company shares	$651
Household contents at C	$10,082
Add back of proceeds of S Company shares sold by husband	$100,000
Total	$793,640.00

Superannuation	Value
Navigator Super Solutions – H Company (H)	$178,607
Navigator Super Solutions – H Company (W)	$41,910
$220,517.00

Liabilities	Amount
Home Mortgages Westpac Banking Corporation C property	$119,728
Total	$119,728.00