Kalantari and Maine (No 2)

[2020] FamCA 912

FAMILY COURT OF AUSTRALIA

KALANTARI & MAINE (NO. 2) [2020] FamCA 912

FAMILY LAW – PROPERTY – Where the parties cohabited for 11 years – Where the wife made significantly greater initial and post-separation contributions – Where the wife has the primary care of the children post-separation – Where the contributions during the marriage were assessed as equal – Order for wife to receive 65 per cent of the pool and the husband 35 per cent – ADDBACKS – Where the wife used matrimonial funds after separation – Where the use of these funds was necessary – Order for the wife’s legal fees used from matrimonial funds to be added back.

Family Law Act 1975 (Cth) ss 75(2), 79, 90XT

Stanford v Stanford (2012) 293 ALR 70

APPLICANT: Mr Kalantari

RESPONDENT: Ms Maine

FILE NUMBER: SYC 8 of 2016

DATE DELIVERED: 29 October 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 13-15 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ford

SOLICITOR FOR THE APPLICANT: Owen Hodge Lawyers

COUNSEL FOR THE RESPONDENT: Mr Rugendyke

SOLICITOR FOR THE RESPONDENT: Georgia Seaton Family Law and Mediation

Orders

Sale of Suburb H property

1. The husband and the wife forthwith do all acts and things and sign all documents necessary to effect the sale of the property situate and known as G Street, Suburb H, New South Wales being the whole of the land more particularly described in Certificate of Title Folio Identifier … ("the Suburb H property") by public auction within six weeks of the date of these Orders and upon completion of the sale to direct the proceeds of sale to be applied in the following manner and priority:

   1.1in payment of costs, commissions and expenses of the sale;

   1.2in discharge of the mortgage to D Bank registered on title to the Suburb H property;

   1.3in payment of an amount equal to 35 percent (thirty-five per cent) of the balance to the husband;

   1.4in payment of the balance then remaining to the wife.

2. Pending settlement of the sale of the Suburb H property pursuant to Order 1 above and from the date of these orders the husband will pay:

   2.1all interest charged to the D Bank loan accounts BSB … number …35 and BSB … number …02 and all Council and water rates in respect of the Suburb H property as and when such payments shall fall due; and

   2.2the building and contents insurance premiums for the Suburb H property as and when they fall due;

   2.3the husband will co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective purchaser.

3. For the purpose of Order 1 above, the parties will do all acts and things and sign all documents necessary so as to:

   3.1within 14 days of the date of the Orders, agree upon a solicitor to act on the conveyance of the property and failing agreement, appoint a solicitor as nominated by the President for the time being of the Law Society of New South Wales or his nominee and each party will pay one-half of the fees for such nomination;

   3.2list the property for sale by public auction within six weeks of the date of these Orders with an auctioneer as agreed in writing and failing agreement within 14 days of the date of the Orders, appoint an auctioneer as nominated by the President for the time being of the Real Estate Institute of New South Wales and each party to pay one-half of the fees for such nomination (hereafter called "the auctioneer");

   3.3co-operate in every way with the auctioneer in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;

   3.4the husband and the wife will execute all documents requested by the auctioneer for sale of the property by public auction within seven days of a written request to do so;

   3.5the reserve price of the property will be such an amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, the reserve price be determined by the President of the Australian Property Institute (New South Wales Division) or his nominee and the parties pay one-half the fees for such determination;

   3.6the husband and the wife each pay to the auctioneer one-half of any sums requested for advertising or auction expenses;

   3.7the husband and the wife each give such instructions as are necessary to the solicitor appointed pursuant to Order 3.1 above to prepare a Contract for Sale to be provided to the auctioneer prior to the auction no later than the date sought by the auctioneer;

   3.8the husband and the wife co-operate in every way with the auctioneer in relation to the sale by auction, including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat, and in good order at the time of any inspection and on the day of auction;

   3.9the sale price of the property will be any amount in excess of the reserve price, but in the event of the reserve price not being reached, the sale price of the property will be such amount as is agreed between the parties or failing agreement, any offer received after the auction to buy the property at a price that is at least 95 per cent of the reserve price will be accepted by the parties;

   3.10the husband and the wife attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under the immediately preceding subparagraph.

4. In the event that the Suburb H property is not sold at auction pursuant to the immediately preceding Order or within 14 days of the date of the auction by further negotiation, then the husband and the wife cause a further auction of the property to be held within six weeks of the date of the first auction, and for that purpose the provisions of the immediately preceding Order will apply.

5. The husband forthwith do all acts and things and sign all documents necessary at his expense to remove the Caveat registered number … registered upon the Suburb H property.

6. The wife do all acts and things and sign all documents necessary at her expense to remove the Caveat registered number … registered upon the Suburb H property.

7. Pending the sale of the Suburb H property pursuant to these Orders, the husband and the wife are each restrained from withdrawing any monies without the written consent of the other party from the following D Bank accounts secured upon the Suburb H property, the Suburb B property and the C Town property:

   7.1      account no. …35;

   7.2      account no. …02;

   7.3      account no. …78;

   7.4      account no. …93;

   7.5      account no. …97.

Superannuation splitting orders

1. The base amount allocated to the husband Mr Kalantari out of the interest of the wife Ms Maine in Z Super is $85,000.

2. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the wife Ms Maine in the Z Super Fund (Fund):

   9.1the husband Mr Kalantari shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $85,000 (provided that such base amount shall not exceed the value of the interest determined under section 90XT(2)) and

   9.2there be a corresponding reduction in the superannuation interest of the wife Ms Maine to whom the splittable payment would have been made but for these orders

3. Order 9 shall take effect from the operative time.

4. The operative time for the purpose of Order 9 is four (4) business days after the date of service of a sealed copy of these Orders upon the Trustee of Z Super.

5. These Orders bind the Trustee of Z Super.

6. Each party and the Trustee of Z Super has liberty to apply on not less than three (3) business days' notice in respect to the implementation of the super splitting orders.

Household items

1. Within 14 days of the date of these Orders, on a date and at a time nominated by the wife on no less than 48 hours' prior written notice to the husband, the husband must permit the wife to attend at and enter the Suburb H property in the company of a third party as agreed between the parties to locate and collect the items of furniture and household effects located at the Suburb H property referred to in Annexure A hereto, and whilst the wife is in attendance at the said property for that purpose the husband must vacate the property.

General provisions

1. Unless otherwise specified in these Orders and as between the parties, save for the purposes of enforcing any monies due under this or any subsequent Orders:

   15.1each party be solely entitled to the exclusion of the other to all property (including choses-in action) in the possession of such party as at the date of this Order;

   15.2    insurance policies remain in the sole property of the owner named therein;

   15.3each party be solely liable for and indemnify the other against any liability in his or her own name or encumbering any item of property to which that party is entitled pursuant to these Orders.
   

Annexure A

A.  Study and Hall	B.  General	C.  Lounge/Kitchen	D.  Bedrooms
Book shelves	coffee table	bedside lamps
All books except husband's professional books	All artwork & framed and unframed photographs in house except coloured painting and any art purchased or made post-separation; excl. husband's photo	Dining table & benches	Long wooden mirror + small wooden mirror
All of wife's personal paperwork and folders/tubs	Large blanket	TV sideboard	Large wooden storage box
All CDs purchased by wife pre-cohabitation	lap blanket	All cushions	Shells in vases
All of wife's personal travel mementos in house	Wife's chef knives, tools & kitchen utensils	Small Box
F.  Garage	Dinner set	Antique baby clothes
Large silver mirror	All gardening tools owned by wife prior to cohabitation	Stand Mixer	Ms M's and kids stuffed toys and all Ms M's and wife's childhood books
Boxed personal photographs of wife	tub	Cake tins	Bedside tables with leather inlays
Wife's crafting/gift materials	Large ladder	All ceramic cookware	2 x masks
Wife's personal artwork folder from school	50% of all other garage items incl, tools, power tools, and items stored in the garage and laundry.	All linen table cloths & napkins	Jigsaw puzzles
E.  Courtyard	All Christmas decorations	tea cup
All potted plants/trees	Small wooden box + small silver/pewter bowl	6 red wine glasses
2 x garden benches 2 x small tables 4 x chairs	wine glasses + shot glasses
Wife's bike & antique ride-on toy car (gift to me)	plate-ware

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8 of 2016

Mr Kalantari

Applicant

And

Ms Maine

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Mr Kalantari and Ms Maine are parties to litigation in relation to alteration of property interests.  Parenting issues were resolved by way of final orders made by consent on 13 February 2020.  Pursuant to these Orders the parties' two children X and Y, aged 12 and 8 respectively, live with their mother and spend two weekends per term and more than half all school holidays with their father.  The wife and the children live at HH City and the husband in Sydney.

2. A substantial issue in these proceedings was the husband's contention that a sum of $354,616 should be "added back" to the net pool of assets and treated as a premature distribution to the wife. These funds were drawn down by the wife on mortgage accounts after the separation of the parties. In the alternative, the husband claimed an adjustment in his favour pursuant to section 75(2)(o) of the Family Law Act1975 (Cth) (“the Act”) on the basis of the wife's alleged "wanton, reckless and negligent" conduct in dealing with these funds.

Background

1. The husband was born in 1972 and is almost 48 years of age.  He migrated to Australia from Country JJ in 1996 and obtained a degree prior to the parties' relationship.  The husband was self-employed at the time of the trial and his financial position remained somewhat unclear at the close of the evidence.

2. The wife was born in 1968 and is presently 52 years of age.  She holds a degree and is employed casually at DD Organisation in HH City.

3. In approximately 1987 the wife married her first husband, from whom she separated in 1989.  Their daughter Ms M, who is now 31 years old, gave evidence in the case for the wife.  Until the end of the trial, the husband alleged that the wife had diverted matrimonial funds to Ms M individually or jointly with her ex-husband, Mr M.

4. The parties commenced cohabitation in May/June 2004 and married in 2007.  They separated in November 2015, when the wife left the former matrimonial home with the children.  In January 2016 the wife moved with the children to HH City, without the consent of the husband.

5. At the commencement of cohabitation the husband owned a motor vehicle, household contents and several valuable items.  The wife owned three parcels of real estate, all of which were encumbered by mortgages, a motor vehicle, shares, savings of approximately $3,000, and household effects.  She had a superannuation benefit with a value of $39,595.

6. In January 2001 the wife purchased the property AA Street, Suburb BB for $374,000.  This purchase was funded entirely by Mr N, who was the wife's partner in the period 1992 to 1997.  The wife and her daughter Ms M lived alone in this property until the husband moved in around mid-2004.

7. In December 2001 the wife borrowed $50,000 from the ANZ Bank to fund renovations to the Suburb BB property.  In June 2002 she borrowed $30,000 from the ANZ Bank in order to carry out additional renovations.  It was asserted that the Suburb BB property was valued retrospectively at $640,000, as at the commencement of cohabitation in mid-2004.  The wife gave uncontradicted evidence that the total mortgage debt in respect of this property was approximately $71,800 at the commencement of cohabitation.

8. In February 2002 the wife purchased the property F Street, Suburb B for $240,000, using a sum of $297,000 loaned by the ANZ Bank.  The wife gave uncontradicted evidence that this mortgage debt had a payout figure of approximately $248,000 at the commencement of cohabitation.

9. In June 2004 the wife purchased a one-bedroom property in C Town for $317,200, using funds of $362,610 borrowed from the ANZ Bank.  The wife gave uncontradicted evidence that this mortgage debt was approximately $360,420 at the commencement of cohabitation.

10. In August 2004 the wife sold her shares for $9,905 and contributed the proceeds to the cost of an engagement ring.  The total cost of this ring was approximately $17,000 to $18,000.

11. In March 2005 the wife obtained employment at K Organisation and the husband accepted a job with EE Company.  The parties "housesat" in Sydney for approximately nine months and then moved into a studio apartment.  Late in 2006 the wife took on a live-in role.  When the parties moved to Sydney in 2005, Ms M went to live with her father at CC Region.  She commenced a degree course in 2008.

12. In December 2005 the parties purchased the property G Street, Suburb H for $691,000.  They borrowed $725,000 from the ANZ Bank, which loan was secured on both the Suburb H and Suburb BB properties.  The Suburb H property was leased to tenants until the parties began to live there in 2008.

13. In March 2007 the husband commenced employment as a Senior Professional at KK Company, which he held for approximately seven months.  In October 2007 the husband took on a position with a government agency.  He held this job for the next eight years.

14. The wife sold the Suburb BB property for $750,000 in May 2008 and received net proceeds of $712,369.  She used these funds to reduce the mortgage on the Suburb H property to $68,800.

15. In 2007 the parties refinanced the ANZ loans by a new credit facility with D Bank.  The husband claimed that he consented to a new credit facility in the total sum of $1,100,000.  He contended that the wife obtained D Bank loans in an amount of $1,690,000 without his consent.  Ultimately, the husband did not seem to pursue this allegation in the proceedings.

16. The wife received two monetary career awards from K Organisation, being $10,000 in 2008 and a net sum of $5,000 in 2010.  She also received an inheritance of $2,000, which she divided equally between her daughter Ms M and the parties' son X.

17. The wife returned to full-time work at K Organisation in August 2009 and the parties employed a nanny to care for X.  She took maternity leave at the time of Y's birth in 2012 and returned to part-time employment in May 2013.  In August 2014 the wife accepted a redundancy and received a lump sum payment of $68,687.

18. The husband resigned from his employment in 2014 and obtained a new position in January 2015.  He resigned from this job after approximately six months and then established his own business.  He registered an ABN with the name R Pty Ltd and opened an LL Bank account.  The husband commenced full-time employment with S Company in September 2015.

19. After her redundancy from K Organisation the wife began to work with Ms T, who operated a business known as MM Business.  This association ended in April 2016, after the wife moved to HH City with the parties' children.

20. In August 2016 the wife purchased a Motor Vehicle 1 for $53,333.  The purchase money came from funds which the wife drew down on a D Bank mortgage account.

21. The husband was assessed to pay Child Support of $2,065 per month in March 2016 and lodged an unsuccessful objection.  The husband's assessment was reduced to $0.19 per week on 27 November 2017.  The husband has paid no periodic child support since 2017.

22. On 5 October 2017 the husband withdrew $38,870 from a D Bank account.  He was ordered to lodge a sum of $31,000 in a controlled monies account on 12 March 2018 but failed to do so.

23. A number of orders have been made for the sale of the Suburb B and C Town properties, none of which have achieved that purpose.  Each party blamed the other for non-compliance with these orders.

The evidence and witnesses

1. The applicant husband relied upon the following affidavits:

   1.Mr Kalantari affirmed 23 December 2019:  paragraphs 1-11, 68-79,

   
   

   92-177 (the husband);

   2.        Mr Kalantari affirmed 22 June 2019 (the husband);

   3.Ms U affirmed 20 December 2019 (the husband's sister):  paragraphs 1-3, 8-11, 17, 20-32, 41-48, 83-98, 102-105, 110-112,

   
   

   125-134, 139-142, 149-151, 197, 198;

   4.Mr W affirmed 20 December 2019 (forensic accountant); and

   5.Financial Statement of the husband affirmed 24 May 2020.

   Mr W was not required for cross-examination.

2. The respondent wife relied upon the following affidavits:

   1.        Ms Maine sworn 25 March 2020;

   2.        Ms M (wife's daughter) sworn 18 December 2019;

   3.        Mr M (wife's ex son-in-law) sworn on 20 December 2019;

   4.        Mr V (mortgage broker) sworn 1 May 2020;

   5.        Mr FF (wife’s partner) sworn 3 December 2020; and

   6.        Financial Statement of the wife sworn 25 March 2020.

   Mr V was not required for cross-examination.

Approach to these proceedings

1. In Stanford v Stanford (2012) 293 ALR 70 the majority of the High Court of Australia held as follows:

   It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.  Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this section.  The requirements of the two sub-sections are not to be conflated.  In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. Their Honours further observed as follows:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.  No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.  That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.  And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end.  Hence it will be just and equitable that the court make a property settlement order.  What order, if any, should then be made is determined by applying s 79(4).

3. I am comfortably satisfied that it is just and equitable that there be orders for alteration of property interests between the parties to these proceedings.  They have lived separately for approximately five years and they both wish to terminate their financial relationship.  Additionally their major asset is the Suburb H property, which they own as joint tenants.

4. It is first necessary to determine the nature, value and ownership or extent of the assets, liabilities and financial resources of the parties.  All relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other.  The matters set out in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2), must be considered and a determination made as to what if any alteration should be made to the entitlements of the parties as earlier assessed on account of contribution.

The assets, superannuation, liabilities and financial resources

Assets

1. At the commencement of the trial, the parties submitted a joint Balance Sheet in the following terms:

Ownership		Description	Husband's value	Wife's value
ASSETS
1	Joint	G Street Suburb H	E 2,050,000	E 2,050,000
2	Wife	F Street Suburb B	E 575,000	E 575,000
3	Wife	J Street C Town	E141,500	E141,500
4	Wife	NN Finance Company and D Bank savings accounts	107	107
5	Joint	D Bank savings accounts (for children)	3,513	3,513
6	Husband	LL Bank savings accounts	529	529
7	Wife	Motor vehicle	E32,300	E17,000
8	Wife	Personal effects and Home Contents	E3,000	3,000
9	Joint	Personal effects and Home Contents in FMH	10,000	10,000
10	Husband	Interest in business – R Pty Ltd	NIL	NIL
11	Wife	Interest in business – Q Pty Ltd & P Pty Ltd	NIL	NIL
Total		$2,815,949	$2,800,649
ADDBACKS
12	Wife	Unilateral withdrawals from matrimonial funds	622,179
Total		$622,179	$

LIABILITIES
13	Joint	D Bank (Suburb H mortgage) #…35	499,584	499,584
14	Wife	D Bank (AA Street) #…02	85,029	85,029
15	Wife	D Bank (Suburb B mortgage) #…93	258,060	258,060
16	Wife	D Bank (C Town mortgage) #…78	405,177	405,177
17	Wife	D Bank (personal overdraft) #…97	44,874	44,874
18	Wife	ANZ visa card #…83	8,032	8,032
19	Wife	CBA visa card #…06	83	83
20	Wife	Other Personal Liabilities (post separation)	340,236	340,236
21	Husband	Mr PP & Mr QQ Ms RR (post separation)	150,000	150,000
22	Husband	SS Company (post separation)	185,000	185,000
Total		$1,976,075	$1,976,075

SUPERANNUATION
Member		Name of Fund	Type of Interest	Husband's value	Wife's value
23	Husband	L Super	Accumulative	168,772	168,772
24	Wife	Z Super	Accumulative	566,023	566,023
Total		$734,795	$734,795

NETT TOTAL ASSETS (including Superannuation)
$2,196,848
1,559,369

1. In final submissions, counsel indicated an agreement that items 20, 21 and 22 should be excluded, on the basis that these liabilities were incurred after the separation of the parties.  I take a similar view in relation to the two credit card debts of the wife.  The parties have been separated for almost five years and the wife's credit card debts must have been incurred during that period and for her sole purposes.  Accordingly, I exclude items 18 and 19 from the Balance Sheet.

2. For convenience I will exclude items 4 and 6, which are the savings accounts of each of the parties with minimal credit balances.  I will also exclude items 10 and 11, which are business entities with an agreed nil value.

3. There was a dispute as to the value of the wife's motor vehicle, with the husband and the wife asserting figures of $32,300 and $17,000 respectively.  In the absence of evidence, the best I can do is to adopt the wife's admission against interest in her Financial Statement.  I find that the wife's Motor Vehicle 1 has a value of $17,000.

4. Initially, the husband sought to "addback" a sum of $622,179.  His counsel acknowledged, however, that this figure included the purchase price of the wife's car and whitegoods for the home which she established for herself and the children after separation.  Ultimately, counsel for the husband contended for an addback of $354,616, which was said to be the increase in the mortgage liabilities between separation and trial.

5. Counsel for the husband properly conceded that a party should not be subject to criticism for utilising matrimonial funds, in a reasonable manner, to establish a household after leaving the family home upon separation.  There was ample evidence that the wife applied part of the funds which she drew down from mortgage accounts for that purpose.

6. It was submitted on behalf of the husband that the wife "engaged in extravagant spending" from these funds, for example, in respect of purchases of approximately $101,000 in department stores.  In my view, it is significant that the wife was required to establish a home for herself and the two children of the parties with little access to the contents of the former matrimonial home.

7. In his final oral submissions, counsel for the husband contended that the addback figure should be a sum of $59,450 which the wife spent on her legal fees and "a portion of $101,000".  It thus appeared that counsel for the husband accepted the proposition that inclusion of a sum of $354,616, as well as the wife's motor vehicle, in the list of assets would be a double-counting exercise.  It appears further that counsel for the husband accepted that the wife legitimately applied a portion of the drawn-down funds to the day-to-day financial support of herself and the children post-separation.

8. I accept the submission on behalf of the husband that a sum of $59,450 should be added back to the list of assets.  Any other course would have the practical effect that the husband made a contribution to the payment of the legal costs of the wife.

9. Accordingly, I will include as an asset the sum of $59,450 which the wife drew down on mortgage accounts post-separation and expended on her legal costs.  The wife's motor vehicle will be included as an asset with a value of $17,000.

10. I will not addback "a portion of $101,000 which the wife spent in department stores" for two main reasons.  Firstly, the wife's household contents were purchased with drawn-down funds and are included in the joint Balance Sheet.  Accordingly, there is a real prospect of double counting inherent in this proposition.  Secondly I consider that the wife was entitled to acquire household contents for herself and the children and I cannot determine what, if any, proportion of the sum of $101,000 could reasonably be considered "extravagant spending".

11. I will consider and determine below whether any adjustment to the husband is warranted pursuant to section 75(2)(o) of the Act on account of the wife's post-separation expenditure of funds drawn down on mortgage accounts. Any such adjustment would then be balanced against factors which weigh in favour of the wife, the most obvious being her ongoing responsibility for primary care of the children.

12. Accordingly I find that the assets, superannuation and liabilities of the parties are as follows:

ASSETS			($)
1.	G Street, Suburb H	J	2,050,000
2.	F Street, Suburb B	W	575,000
3.	J Street C Town	W	141,500
5.	D Bank Savings Accounts (for children)	J	3,513
7.	Motor Vehicle 1	W	17,000
6.	Personal Effects and Household Contents	W	3,000
7.	Household Contents	J	10,000
12.	Addbacks	W	59,450
$2,859,463

SUPERANNUATION			($)
23.	L Super	H		168,772
24.	Z Super	W		566,023
$734,795

LIABILITIES			($)
13.	D Bank (Suburb H mortgage …35)	J		499,584
14.	D Bank (mortgage …02)	W		85,029
15.	D Bank (Suburb B mortgage)	W		258,060
16.	D Bank (C Town mortgage)	W		405,177
17.	D Bank Overdraft	W		44,874
$1,292,724

The letters "J", "W" and "H" in this table indicate that assets, superannuation and liabilities are held by the parties jointly, the wife or the husband respectively.  There was no suggestion that either party holds a financial resource.

The contributions of the parties

1. It was common ground that the initial financial contributions of the wife exceeded those of the husband.  He entered the relationship with assets which consisted primarily of a Motor Vehicle 2, household contents.  There was no evidence as to the value of these assets at the commencement of cohabitation.  It appeared that the husband had no liabilities in mid-2004.

2. At the commencement of cohabitation the wife owned three parcels of real estate, all of which were encumbered by mortgage debts.  The Case Outline filed on behalf of the wife, and her affidavit, referred to a retrospective valuation of the Suburb BB property at $640,000 in 2004.  I was taken to no such evidence within the large volume of material presented by both parties at trial.

3. The wife held a superannuation benefit of $39,595 at the commencement of cohabitation, together with savings of $3,390.  She also owned shares which were sold for $9,905 some two months after the parties began to live together.

4. Although it is impossible to compare the value of the initial contributions of the parties in dollar terms, it seems clear that the wife introduced into the relationship assets of greater net value than did the husband.  In my view, this concession was made properly by counsel for the husband.

5. Counsel for the wife submitted that the contributions of the parties during cohabitation should be found to be equal.  This submission was made at the conclusion of the trial, presumably with the benefit of testing of the evidence, and differed from the contention in the Case Outline for a contribution finding in favour of the wife of 57.5 per cent to 60 per cent at the date of separation.

6. In final submissions, counsel for the husband made a concession that "the wife is ahead on contribution as at the date of trial".  The submissions of counsel for the husband focused largely on the issue of the treatment of the wife's drawdowns on mortgage accounts.  As indicated above, I consider that the wife's paid legal fees should be included as an asset and, otherwise, these drawdowns generally should be taken into account in favour of the husband as a section 75(2) factor.

7. During cohabitation, each of the parties earned income from employment and the wife received lump sum awards to the value of $15,000 in the course of her career as an educator.  In 2008 the wife sold the Suburb BB property and reduced the mortgage encumbrance on the former matrimonial home at Suburb H by some $712,369.

8. The husband contended that he made a contribution to the care and financial support of the wife's daughter, Ms M, between 2004 and 2008.  Ms M, however, gave uncontradicted evidence that she went to live with Mr N in 2005 and remained in his home for the next three years.  Ms M also gave uncontradicted evidence that she occupied a granny flat at the Suburb H property "for a few months" in 2008.  In those circumstances, it seems to me that the husband had a negligible opportunity to contribute to the well-being and financial support of the wife's daughter.

9. In my view, both parties made a contribution to the care of their children prior to separation.  The wife took two periods of maternity leave but I accept that, at times, the husband played a major role in childcare while the wife was occupied with her employment and travel.

10. The wife did not seem to challenge the husband's evidence that he carried out renovations to the Suburb H, Suburb BB and Suburb B properties.  The husband contended that he "carried out handyman work and maintenance" to the Suburb BB property.  He deposed that he renovated the Suburb H property in a period of eight weeks, during which he worked 14 to 16 hour days.

11. Initially, the husband appeared to suggest that the wife had diverted matrimonial funds for the benefit of her daughter Ms M solely and/or jointly with her husband Mr M.  Both Mr and Ms M gave evidence which, in my view, clearly refuted any such suggestion.  In final submissions, counsel for the husband conceded properly that "no criticism can be made of either Ms M or Mr M".  Counsel for the husband specifically said that he "made no submission that money travelled from the wife to her daughter Ms M."

12. Since the separation the wife has undertaken most of the care of the children and, since November 2017, she has been solely responsible for their day-to-day financial support.  As noted, I accept the evidence of the wife that she established a home for herself and the children with little access to the contents of the Suburb H property.

13. The husband has the benefit of sole occupation of the Suburb H property since the parties' separation and allowed the mortgage to fall into arrears.  Mortgage payments recommenced in October 2017, from the sum of $38,870 which the husband withdrew on 5 October 2017 and paid to his sister.  A Financial Statement of 24 May 2020 indicated that the husband pays a sum of $500 per month on account of the mortgage on the Suburb H property, pursuant to an agreement with D Bank.

14. On 12 March 2018 interim orders were made which required the husband to pay all instalments in respect of the mortgage secured on the Suburb H property.  The evidence was unclear as to the extent of the husband's compliance with this order.

15. During cohabitation, the balance of the wife's superannuation increased from $39,595 to $378,392.  The value of the Z Super fund at the date of trial was approximately $566,023.  I consider that the husband made no contribution to the increase in value of $187,631, which post-dated the separation of the parties.

16. The husband did not suggest that he held a superannuation benefit at the commencement of cohabitation.  He deposed to an L Super benefit of $170,061 in his Financial Statement of 24 May 2020.  It was impossible to identify the component of this fund which was accrued after the separation of the parties.

17. I do not accept the submission on behalf of the husband that justice and equity requires that the parties' superannuation interests be equalised by way of splitting orders.  As observed above, the husband made no contribution to the post-separation increase in the value of the wife's fund.  This increase of $187,631 constitutes approximately 33 per cent of the present value of the wife's benefit.

Conclusion as to contribution

1. Counsel for the husband submitted that the contributions of the parties, as at the date of trial, should be found to be 55 per cent to the wife and 45 per cent to the husband respectively.  Counsel for the wife contended that there should be a contribution finding of at least 62.5 per cent in her favour, as at the date of trial.

2. In my assessment, the initial contributions of the wife were unmatched by those of the husband during the relationship and post-separation.  The submission as to contribution on behalf of the husband acknowledged that contributions overall favoured the wife.  I have regard to the wife's initial contributions, her income from gainful employment and homemaker and parent contributions during cohabitation.  I have regard also to the wife's primary care and financial support of the children after the separation.  As noted, the husband has paid no periodic child support since 2017.  I am satisfied and I find that there should be an assessment contribution of 60 per cent to the wife and 40 per cent to the husband as at the date of trial.  In reaching this conclusion I am alive also to the husband's contributions by way of renovations to the real estate assets of the parties, his income from gainful employment and homemaker and parent contributions during cohabitation.

Section 75(2) factors

1. The husband and the wife are aged 47 and 52 respectively and they each have a capacity to engage in gainful employment.  Both parties hold tertiary qualifications and have in the past pursued professional careers.  There was no evidence that either party suffers from a health condition which would have an adverse impact on his or her income-earning potential.

2. Pursuant to final parenting orders made by consent on 13 February 2020, the wife has responsibility for most of the care of the parties' children.  They are aged 12 and 8, thus she will hold this responsibility for several years into the future.

3. The husband has made no contribution to the financial support of the children, pursuant to an Administrative Assessment, since at least November 2017.  The evidence gave no reason for optimism that he will make a meaningful contribution to the support of the children in the near future.

4. The husband's financial position remained unclear at the conclusion of the trial.  Whatever may be the actual level of his current income, he holds qualifications and experience which equip him well to take on employment or establish a business.

5. The wife holds sessional employment as an educator and deposed that her prospects of a full-time appointment are hampered by the fact that she does not hold a doctorate degree.  She gave uncontradicted evidence that her anticipated income is $60,000 to $70,000 per annum.

6. There is no doubt that the wife drew down substantial sums from mortgage accounts after the separation. Prima facie, this fact would justify an allowance in favour of the husband pursuant to section 75(2)(o) of the Act. In my view, however, there are factors which militate against or ameliorate any such adjustment.

7. I have referred above to the necessity for the wife to establish a home for herself and the children after the separation, while the husband had sole occupation of the Suburb H property.  I have referred also to the fact that the wife had little access to the contents of the former matrimonial home and thus was required to purchase furniture and other household necessities, with no assistance from the husband.

1. I have referred further to the husband's lack of contribution to the financial support of the children since at least November 2017.  The wife held no paid employment between the separation in November 2015 and July 2018.  During that period she relied substantially upon drawdowns from mortgage accounts for the support of herself and the children.

2. Each of the parties has re-partnered but there was no evidence that the husband or the wife currently cohabit with another person.  The husband formed a relationship with Ms GG in August 2018.  The wife entered into a relationship with Mr FF late in 2017.

Conclusion as to section 75(2) factors

1. It seems to me that the two most significant factors, pursuant to section 75(2), are the wife's ongoing responsibility for most of the care of the parties' children and her post-separation use of funds drawn down on mortgage accounts.  In my view, the first of these factors is exacerbated by the failure of the husband to contribute to the financial support of the children for the last three years and the apparent unlikelihood that he will do so in the near future.

2. I cannot and will not attempt to carry out a dollar-by-dollar analysis of the wife's post-separation expenditure of mortgage drawdown funds.  The amounts which she drew down were substantial, however, and should be taken into account in favour of the husband.  On balance, I find that there should be an adjustment of 5 per cent of the net pool of non-superannuation assets in favour of the wife.

Conclusion

1. For these reasons, I am satisfied and I find that the net pool of

   
   

   non-superannuation assets should be divided as to 65 per cent to the wife and 35 per cent to the husband.  I am satisfied that there should be a splitting order in favour of the husband in respect of the wife's superannuation benefit.  As indicated above, I am not persuaded that the superannuation benefits of the parties should be equalised but it seems to me that there should be an adjustment in favour of the husband.

2. I am inclined to make splitting orders which reflect an equal contribution by the parties to superannuation during their cohabitation.  There was no evidence of the value of the husband's fund at the date of separation but, in my view, an inference can safely be drawn that the husband accrued most if not all of the current balance of his fund during cohabitation.

3. The tax returns of the husband disclose gross income of $141,527 in 2015, $51,673 in 2016, $26,002 in 2017, $26,000 in 2018 and $26,000 in 2019.  The amounts of $26,000 would seem to consist of drawings from the company R Pty Ltd.  It seems unlikely that the husband made contributions to his superannuation fund in the 2017, 2018 and 2019 years.  In these circumstances, I will adopt the figure of $168,772 as the balance of the husband's superannuation fund as at the date of separation.

4. The husband deposed to no superannuation benefit which he held at the commencement of cohabitation.  That being so, he appears to have acquired most if not all of the balance of $168,772 of the L Super during the relationship of the parties.  The balance of the wife's Z Super fund increased from $39,592 to $378,392 during cohabitation.

5. Accordingly, the parties accrued superannuation in a total amount of approximately $507,572 during cohabitation.  One half of that sum is $253,786, thus a splitting order of $85,014 in respect of the wife's fund in favour of the husband is necessary to reflect equality of contributions during the relationship.  I will round off such a splitting order to an amount of $85,000.

Form of orders

1. After judgment was reserved, I requested a Minute of Proposed Orders from each of the parties.  I did not grant leave to the husband to add an order in relation to the wife's frequent flyer points and I will not entertain that proposal, even on the assumption that there exists jurisdiction to do so.

2. At all times, the wife has sought orders in relation to distribution of chattels contained in the Suburb H property.  The parties agreed that these assets have a value of $10,000 but there was no evidence as to the relative worth of the items which the wife sought to be returned to her.  The husband did not indicate resistance to the proposed order for return of a large number of items to the wife.  Accordingly, I will make the orders essentially proposed by the wife in relation to these chattels.

3. It seems to me that the most appropriate course is to remove the "household contents" valued at $10,000 from the Balance Sheet and to make orders which deal with these assets in specie.  It is impossible to identify and make an adjustment between the parties on the basis the values of the items to be acquired or retained by each of the husband and the wife.

4. No submissions were made as to the item "D Bank Savings Accounts (for Children) in an amount of $3,573.  I will make orders which vest beneficial ownership of these accounts in the wife, as she has responsibility for majority care of the children.

5. The husband sought orders for a sale of the Suburb H property and distribution of the proceeds between the parties.  A complication is a caveat on the title to this property, which has been lodged by the wife's previous solicitor.  It seems to me that there should be an order that the wife cause the removal of this caveat at her expense prior to settlement of the sale.

6. The Minutes submitted by each of the parties indicated that they now agree that there be a sale of the Suburb H property and that the wife retain the real estate assets which she owned prior to cohabitation.  I will not make orders for the discharge of mortgages on the titles to the Suburb B and C Town properties from the Suburb H sale proceeds.  It is easy to envisage resultant disputes, involving intricate calculations of increases in mortgage balances, in the period between trial and judgment.  In the interests of putting an end to these proceedings, it seems to me to be preferable that the wife make her own arrangements for the servicing or discharge of these liabilities.  If difficulties arise in terms of the various D Bank mortgages, the parties will need to engage in mature and constructive negotiations to bring an end to their dealings with that lender.  I cannot and will not attempt to anticipate and address all such contingencies.

7. History suggests that orders of extraordinary detail will be required, if a sale of the Suburb H property is to be achieved without further disputation.  Fortunately, there was substantial agreement as to the form of these machinery orders.

8. Accordingly, I will make orders which will result in the husband receiving from the net proceeds of the Suburb H property an amount equivalent to approximately 35 per cent of the net pool of non-superannuation assets and the wife the balance thereof.  This exercise must be carried out without the benefit of evidence as to the legal costs and real estate agent's commission incidental to the sale.

9. The net non-superannuation assets have a total value of $2,849,463, after omitting the contents of the former matrimonial home which will be dealt with in specie.  The liabilities of the parties amount to $1,292,739, which means that the net pool of non-superannuation assets has a value of $1,556,739.  65 per cent and 35 per cent thereof equate to $1,011,880 and $544,859 respectively.

10. The wife will receive or retain the following non-superannuation assets:

($)
1.	F Street, Suburb B		575,000
2.	J Street, C Town		141,500
3.	D Bank Savings Accounts		3,513
4.	Motor Vehicle 1		17,000
5.	Personal Effects and Household Contents		3,000
6.	Addbacks		59,450
$799,463

She will retain or assume the following liabilities:

($)
6.	D Bank (Mortgage …02)		85,029
7.	D Bank (Suburb B Mortgage)		258,060
8.	D Bank (C Town Mortgage)		405,177
9.	D Bank Overdraft		44,874
$793,140

The wife thus holds net non-superannuation assets of $6,323.  Accordingly, she requires approximately $1,005,557 from the proceeds of sale of the Suburb H property to constitute her entitlement of 65 per cent of the net

non-superannuation pool.

1. The husband holds no net non-superannuation assets for the purposes of this exercise.  Accordingly, he requires approximately $544,859 from the proceeds of sale of the Suburb H property to constitute his entitlement of 35 per cent of the net non-superannuation pool.

2. Exclusive of sale costs, the net equity in the Suburb H property is approximately $1,550,416.  The wife's portion of $1,005,557 equates to about 65 per cent and the amount of $544,859 is approximately 35 per cent thereof.  I will make orders which are cast in these percentage terms, as there can be no reliable prediction as to the ultimate sale price of the property.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 29 October 2020.

Associate: 

Date:  29 October 2020