Kassell & Deighton

[2021] FCCA 697

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kassell & Deighton [2021] FCCA 697

File number(s):

MLC 9963 of 2019

Judgment of:

JUDGE CARTER

Date of judgment:

14 April 2021

Catchwords:

 FAMILY LAW – property – short relationship - disparity of contributions - where Husband contends no order be made – where Wife asserts that her future earning capacity impacted by relationship – where the Husband’s health may impact on his earning capacity.

Legislation:

Family Law Act 1975 (Cth) ss 49, 75, 90SE

Cases cited:

Anson & Meek (2017) 57 Fam LR 23

Blanks v Blanks [2006] FamCA 354

C & C [1998] FamCA 143

CCD & AGMD (2006) 36 Fam LR 356; 205 FLR 97

Dickons v Dickons [2012] FamCAFC 154

GBT & BJT [2005] FamCA 683

In the Marriage of R and B Shewring (1987) 92 FLR 385

Kennon v Kennon (1997) 139 FLR 118

Mallet v Mallet (1984) 156 CLR 605

Russo v Dorsey [2014] FamCA 467

Stanford v Stanford (2012) 247 CLR 108

W & W (unreported, Full court, Baker, Lindenmayer and Smithers JJ, 28 January 1997)

Wallis and Manning (2017) FLC 93-759

Number of paragraphs:

111

Date of last submission/s:

18 February 2021

Date of hearing:

17 & 18 February 2021

Place:

Melbourne

Counsel for the Applicant

Mr Daniel Matta

Solicitor for the Applicant

Coote Family Lawyers

Counsel for the Respondent

Mr Chris Nehmy

Solicitor for the Respondent 

Kenna Teasdale Lawyers

ORDERS

MLC 9963 of 2019

BETWEEN:

MS KASSELL

Applicant

AND:

MR DEIGHTON

Respondent

ORDER MADE BY:	JUDGE CARTER
DATE OF ORDER:	14 APRIL 2021

THE COURT ORDERS THAT:

1.The Husband pay the Wife the sum of $157,261 (“the payment”) within 60 days of these orders (“the date”).

2.In the event that the whole of the payment has not been made by the date then the Husband shall sign all documents and do all things necessary to place the property situate at and known as B Street, Suburb C, Victoria being the whole of the land more particularly described in Certificate of Title Volume ... folio ... (“the property”), on the market for sale and the property be sold altogether out of Court (“the sale”).

3.Upon completion of the sale the proceeds shall be applied as follows:

(a)first, to pay all costs, commissions and expenses of the sale;

(b)secondly, to discharge the mortgage affecting the property;

(c)thirdly, to pay any council and water rates and other charges (if any) outstanding in respect of the property;

(d)fourthly, so much of the payment as is then outstanding together with interest thereon at the rate pursuant to rule 17.03 of the Family Law Rules 2004 (Cth); and

(e)the balance then remaining to the Husband.

4.Pending the payment or the completion of the sale:

(a)the Husband have the sole right to occupy the property;

(b)the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the property as they fall due; and

(c)save for the sole purpose of complying with these orders neither party shall encumber the property without the consent of the other party.

5.Liberty be reserved to either party to apply with respect to the terms, conditions and execution of the sale.

6.Unless otherwise specified in these Orders and save for the purposes of enforcing monies due under these or any subsequent Orders:

(a)each 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 these Orders;

(b)insurance policies remain the sole property of the policy holder;

(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

any joint tenancy of the parties in any real or personal estate is hereby expressly severed. Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE CARTER

INTRODUCTION

1. The parties in this case are 37 year old Ms Kassell (“the Wife”) and 41 year old Mr Deighton (“the Husband”). The Applicant Wife is a professional and lives in Country D with her now husband, Mr E. The Respondent Husband is a legal professional and lives in B Street, Suburb C, a property he brought into the relationship (“B Street, Suburb C”). The parties met in 2011 and commenced living together in early 2013. They married in 2016. They separated on a final basis on 25 September 2018, 2 ½ years ago and divorced on 29 May 2020. There are no children of the relationship.

2. At trial, the Wife sought an adjustment to her, such that she retain 35% of the tangible pool of assets and the Husband 65%. On her behalf it was submitted that division would recognise the contributions she made over the 5 ½ years of cohabitation, as well as providing a further 5% adjustment on the basis of s75(2) factors.

3. It was submitted on behalf of the Husband that this is a matter in which the Court should find that it is not just and equitable for any order to be made.

   BACKGROUND

4. It is common ground that at the time the parties started living together, the Husband owned B Street, Suburb C. They agree that at that time, the property was worth $1.1M and was subject to a mortgage of $470,000, for which the Husband has always made the repayments. In addition, the Husband had superannuation of $107,430. The Wife says her initial contribution was approximately $80,000.

5. The parties agree that prior to living together, the Husband had substantially developed plans to renovate B Street, Suburb C, although the build itself did not commence until the parties had been living together for some months.

6. The parties were both working hard, and earning well at the commencement of the marriage. As already observed, the husband was and remains a legal professional. It is common ground that the Husband was already a heavy drinker by the time the parties commenced living together. He had previously lost his driver’s licence as a result of drink driving offences. However, he was able to conduct a busy practice as a legal professional. I do not know his precise income at the commencement of cohabitation, but it is common ground he generated significant revenue. It is apparent, unfortunately, that his drinking spiralled out of control. He now acknowledges the diagnosis of Severe Alcohol Use Disorder and is engaged in treatment for his alcoholism.

7. At the commencement of cohabitation, the Wife was employed at Employer F earning $134,000 inclusive of superannuation. She was promoted to Head of Department at Employer F at about the time she moved in to B Street, Suburb C, increasing her salary to $176,000 inclusive of superannuation plus shares and bonuses. She resigned from that position in 2013, instead taking up the role as Professional and thereby reducing her income by $30,000 per annum. There is a dispute as to the reasons she did so. The Husband says the Wife found the position overwhelming and was not coping with the stress and pressure of the work. The Wife says she did so at the suggestion of the Husband, who assured her his income was sufficient such that they did not need the additional income she generated in that role and that the parties’ focus should be on renovating the home and starting a family. The Husband denies he made any suggestions as to what they should be focussed on at that time.

8. By resigning from that position, the Wife says she lost significant opportunities for further advancement, as well as being precluded from obtaining shares in the company. She says her career did not progress in the way she expected it would have done but for that resignation.

9. The parties commenced the renovations to B Street, Suburb C in around late 2013. The renovations cost around $500,000 and it is not in dispute that cost was met by the Husband. There is dispute as to the Wife’s involvement and input into the renovations. It is agreed she attended most if not all of the on-site meetings, and that she was involved in the fit out and finishes. The Wife asserts she was a co-project manager, liaised with trades, builders and architects, and was heavily involved in the interior design of the home.

10. The Husband says the vast majority of the work designing and planning the build was done by him prior to the parties’ cohabitation. He says he managed the build, and was the main point of contact for the builder and the trades. He says the Wife has exaggerated her involvement and input, which was confined more or less to interior design which he says they did together.

11. The parties married in 2016, and the travelled to Country G in 2017, for a 6 week delayed honeymoon.

12. In 2017, the Wife reduced her hours at Employer F to part time. There is again some dispute regarding how that decision was made. The Wife says she reduced her hours to focus on saving the marriage, as the Husband’s drinking was excessive, his mental health very poor, and she found his lifestyle exhausting. She says this again significantly affected her career progression, as Employer F was opposed to her reducing her hours and effectively removing herself from consideration as a leader within the organisation. The Husband says the Wife’s health was poor at the time. He says he did not agree to her working part time, and denies she did so in response to his issues or lifestyle.

13. At around that time, the parties commenced counselling.

14. In 2017 the parties travelled to Country H for Christmas. The Wife says the Husband’s drinking was significantly out of control during that trip. Once back in Australia, she says she told him she was going to separate. The Wife says the Husband pleaded with her to stay, and she agreed to give the marriage another chance.

15. In 2018, the Wife moved into an Airbnb. The Husband said he was distraught and started drinking very heavily. The Wife says the Husband subsequently appeared to be taking steps to address his drinking. The parties were continuing with counselling at that time.

16. Although the Wife says her health generally began to improve, she was prescribed antidepressants in about 2018. She deposes to being depressed over the state of the marriage and at the increasing unlikeliness that she and the Husband would have children. At around this time the Wife suggested the parties sell B Street, Suburb C and buy a new family home in Suburb J. The Husband says he was unhappy about this, but to satisfy her, he agreed to move with the Wife into a rental property in Suburb K, whilst they leased out B Street, Suburb C. The parties equally or substantially equally met the costs of the rent in Suburb K when living there together.

17. In 2018, the Wife returned to full time work. At about that time, the Husband withdrew the sum of $750,000 from the B Street, Suburb C mortgage to purchase shares.

18. The parties separated on 25 September 2018, under the one roof for a period. At about that time, B Street, Suburb C was leased out, and the rental income applied to the mortgage. The Husband moved into a rental in Suburb L before returning to live at B Street, Suburb C in about October or November 2019.

19. At the time the parties separated, the Wife had a motor vehicle, savings of approximately $100,000 and cryptocurrency worth around $21,000. She has re-partnered with Mr E. They moved to Country D together in 2020, and married in 2020. The Wife is currently earning AUD$263,500 per annum, as a Professional at Employer M. She says she and Mr E rely wholly on her income to meet their needs as he is not currently working.

20. The Husband remains single. He is continuing to practice as a legal professional. However, he says an essential element in his recovery from alcohol abuse disorder is that he lead a less stressful life. He says accordingly he is substantially reducing the amount of work he previously undertook, and that will reduce his income. He says he is currently generating insufficient billings to meet his outgoings. His income in the financial year ended 2019 was $457,158. He has not yet completed his 2020 tax return.

    THE EVIDENCE

21. I had the benefit of hearing evidence from each of the parties and from Dr N, the Husband’s psychiatrist. Although the trial was conducted by way of Microsoft Teams, with the Wife attending from Country D, I am satisfied that there were no technical issues that impacted on the ability of the parties to give evidence or participate in the proceedings. Each of the witnesses gave their evidence in a straightforward manner, and I am satisfied that they each did their best to give their evidence honestly.

    THE POOL

22. There are relatively few contentions in relation to the pool. The tangible pool is agreed as follows:

Equity in B Street, Suburb C – valued at $2,000,000, less the mortgage of $666,115	$1,333,885
Funds in the offset account	$6,413
Husband’s O Shares portfolio (figure as set out in his Affidavit filed 16 February 2021)	$670,927
Husband’s Motor Vehicle 1	$25,000
Husband’s Motor Vehicle 2	$68,500
Husband’s artworks	$17,800
Husband’s anticipated tax refund	$42,908
Wife’s savings	$13,438
Wife’s jewellery	$4,500
Wife’s Motor Vehicle 3	$17,500
Wife’s artworks	$7,000
TOTAL AGREED ASSETS	2,207,871
LIABILITIES
Husband’s credit card liabilities	($1,939)
Wife’s credit card liabilities	($6,347)
TOTAL NET AGREED ASSETS	$2,199,585

1. In the course of the trial, the parties made the following compromises and concessions in relation to that pool:

   (a)The Wife asserted the Husband’s Motor Vehicle 2 was worth $72,000. He said it was worth $65,000. In closing addresses, Counsel jointly proposed that the difference be split. I have accordingly included that vehicle in the pool at $68,500 by consent.

   (b)In relation to the Wife’s jewellery, the Husband says that is worth $20,000. However, there is no valuation evidence. It was effectively conceded by Counsel for the Husband that accordingly, the Court is to use the value of $4,500 as nominated by the Wife. That is the value I have included in the pool.

   (c)Sensibly, the parties agreed that the Wife’s Employer M Employee Stocks, which have not yet vested should not be included in the pool.

   (d)Similarly, it was agreed the Husband’s debtors of approximately $50,000 would not be included as an asset.

   (e)Lastly, the Husband initially described the anticipated tax refund of $42,908 as a liability. However, after consulting with his accountant, he conceded through his Counsel that this was not a liability and should be included in the pool as an asset.

2. The Wife has superannuation of $126,535. The Husband’s entitlements are either $386,098 according to his Financial Statement filed 8 February, 2021 or $343,496 according to his affidavit filed 16 February, 2021. Neither party sought a superannuation splitting order.

   Disputes regarding the pool

3. The Husband currently has shares worth $670,927. The Wife sought the Husband’s recently sold shares be notionally added back into the pool at $34,848, to bring his total share portfolio to $705,775. The Husband says he sold those shares to meet his living expenses and legal fees.

4. The Husband sought that an amount of approximately $59,000 should be notionally added back into the pool, being the balance of monies the Wife has had the benefit of post separation not used on living expenses or otherwise reflected in the pool.

5. It is common ground that at separation, the Wife had savings of approximately $100,000. She sold cryptocurrency in February 2019, netting approximately $21,000. She also had a car, which she sold. She used the proceeds to purchase a new vehicle, which the parties agree is to be included in the pool.

6. Counsel for the Husband acknowledged the Wife has accounted for some of those monies retained by her at separation, and in part, expended. In his closing submissions he says that the amount of $59,000 ought be added back. My calculation based on the Wife’s evidence is marginally different. She has deposed to expending $44,584 in relocation costs and IVF, and a further $17,500 to purchase a vehicle. As noted, the vehicle has already been included in the pool. That leaves the Wife with the balance of the assets she had at separation being $58,916. The Wife conceded that approximately $40,000 of that has been used to purchase shares in the name of Mr E, and the remainder used to meet legal fees.

7. The Husband’s primary position in relation to these disputes is that there should be notional addbacks of both amounts. He says it is appropriate if using the higher share portfolio value as contended by the Wife, then the sum of $58,916 which the Wife has retained for her benefit post separation should similarly be added back. He said it would be appropriate to treat those funds which the parties have retained for their own benefit consistently. Alternatively, he said it is open to the Court to take these matter into account under s75(2)(o) considerations.

8. The Wife asserts that there should be no addback for any funds spent by her. She says $40,000 of the sum sought to be added back has been invested in shares in the name of her husband, who is currently not working. She says she has otherwise used the monies supporting herself, just as the Husband has continued to use his funds to meet his needs, without having to account for that. However, she says that the Husband’s shares should be included at the higher figure, as he has recently sold those shares and retained the proceeds for his own benefit. Counsel for the Wife argues that he had no reason to sell those shares, and that he has no better rights to the proceeds of sale of the shares than she did. Counsel for the Wife said the Husband’s sale of the shares should accordingly be treated differently to the Wife’s utilisation of her funds to support her living and moving expenses.

9. The case law makes is clear that notionally adding assets disposed of back into the pool is the exception rather than the rule. The general principle is that the Court is to take the property of the parties as they are at the date of the final hearing. Parties are entitled to conduct themselves post separation “in a manner that is consistent with properly getting on with their lives”.

   
   C & C

   [1998] FamCA 143 [46]. Joint monies used to pay legal fees and monies which effectively amount to a premature distribution of the assets, however, may be determined in the Court’s discretion to fall within the exception.

10. In this case, I am satisfied that it is appropriate to notionally add back both the Wife’s funds and the sold shares, rather than dealing with these matters pursuant to s75(2)(o). Excluding her reasonably incurred living expenses (including relocation expenses) the Wife has had the benefit of the sum of $58,916. The Husband has had the benefit of the proceeds of $34,848 from the sale of the shares. Those savings and shares existed at the time of the parties’ separation and they would otherwise have been available to be included in the pool of assets and distributed between them. Effectively, each of the parties has had the benefit of a premature distribution of funds. The Husband has said he will use part of his funds for legal fees. The Wife has used part of her funds for legal fees and part of the funds have been used to purchase shares registered in her husband’s name, which are still in existence.

11. Having made those determinations, I find the net tangible pool together with the addbacks of $58,916 and $34,848, comes to a total of $2,293,349.

1. Accordingly, the Husband’s assets are:

Equity in B Street, Suburb C	$1,333,885
Funds in the offset account	$6,413
Husband’s O Shares current share portfolio	$670,927
Husband’s shares sold and notionally added back into the pool	$34,848
Husband’s Motor Vehicle 1	$25,000
Husband’s Motor Vehicle 2	$68,500
Husband’s artworks	$17,800
Husband’s anticipated tax refund	$42,908
Husband’s credit card liabilities	($1,939)

1. This gives him net assets of $2,198,342, or 95.86% of the property pool.

2. The Wife’s assets are:

Monies withdrawn by the Wife post separation sought by the Husband to be notionally added back into the pool	$58,916
Wife’s savings	$13,438
Wife’s jewellery	$4,500
Wife’s Motor Vehicle 3	$17,500
Wife’s artworks	$7,000
Wife’s credit card liabilities	($6,347)

1. This gives the Wife net assets of $95,007, or 4.14% of the current tangible pool.

   IS IT JUST AND EQUITABLE TO MAKE AN ORDER?

2. As has been made plain by the High Court in Stanford v Stanford (2012) 247 CLR 108, having determined the parties’ legal and equitable interests in property, I must determine whether it is just and equitable to make any order regarding property. In doing so, I must not conflate the requirements of ss79(2) and (4). This must be a separate and preliminary consideration. Their Honours said the expression “just and equitable” [36];

   … is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.

3. Their Honours further said there is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them only on the basis of the considerations in s79(4).

4. The Husband asserts this is not a case in which justice and equity requires the making of any order. He says the marriage was short, and there were no children. He says he made the overwhelming financial contributions to the relationship, already owning the property into which the Wife moved, and meeting almost the entire costs of renovating it. He made all the mortgage repayments. He says he paid more into the joint account, and generally paid for more expenses than did the Wife. The parties did not jointly acquire any real property together. He accepts that they each made non-financial contributions to each other, but says that the parties maintained substantially separate financial lives. They maintained their own separate savings and spending accounts, and did not have access to each other’s bank accounts. It is common ground that both parties made independent decisions regarding investments, without consulting the other.

5. The Wife concedes that she did not make mortgage contributions, or contribute substantially to the costs of renovating the home. She says she sought to be involved financially, but her attempts were rebuffed by the Husband. She asserts that she was significantly involved in the renovation, attending meetings, helping with layout and being engaged in choosing the fit out and finishes. She says the parties’ joint account, into which they both contributed part of their income was used for household expenses, including some rates and insurances. Further, she says she made career sacrifices in an effort to be more available to support the Husband as he became increasingly alcohol dependant.

6. The B Street, Suburb C property is registered solely in the Husband’s name. The parties are no longer living together in that property and their relationship has come to an end. I am satisfied that both parties have contributed to that property over the course of their 5 ½ year relationship, although not equally so. If no orders are made, the Husband will retain that property to the exclusion of the Wife.

7. I am also satisfied that the parties’ relationship did not have a commercial flavour as was suggested by Counsel for the Husband. They did make unilateral financial decisions in relation to a number of matters. But the evidence shows they both entered their marriage with a view to having a long term, successful and co-supportive relationship, and forming a family. They maintained a joint account and to an extent intermingled their finances, and provided each other with emotional support.

8. I am satisfied that it is just and equitable that an order insofar as property be made in all the circumstances.

   CONTRIBUTIONS

9. In determining what orders are to be made pursuant to s79(4), I must

   weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment; per Baker and Rowlands JJ in Aleksovski v Aleksovski [1996] FamCA 111 [50].

10. At paragraph 90, of Aleksovski his Honour Kay J said:

    The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital… What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship.

11. Those observations were quoted with approval by the Full Court Dickons v Dickons [2012] FamCAFC 154 (“Dickons”). At paragraph 21 their Honours said that “…the requirements of the section are met by approaching the assessment of contributions holistically…” by analysing the contributions of all types, and by reference to the particular circumstances of that particular relationship. They said little is gained by attaching percentages to each component of contributions, although considering initial contributions, those made during the marriage and post separation can be helpful. At paragraph 24 their Honours said:

    However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship.

12. The assessment of contributions does not require “over-zealous” attention to the ascertainment of contributions, and the process of the Court as required by section 79 of the Act “…is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise” as set out in Dickons at paragraph 25.

13. It is not contentious that the Husband’s initial financial contributions overwhelm those of the Wife. He had equity of approximately $630,000 in B Street, Suburb C at the commencement of the relationship, as well as superannuation of approximately $107,000 and savings of $30,000. Further, during the marriage and post separation, his financial contributions were far greater than hers. He funded the renovations at a substantial cost of around $500,000, and the mortgage repayments were made from his earnings. The property was worth $1.1M and is now worth $2M. Although part of the increase in value arises from the renovations, market forces will also have played a role increasing the value of the asset brought in by the Husband over the years of the parties’ cohabitation and post separation. The Husband has also attended to maintain the property and make mortgage payments post separation.

14. I am satisfied that the Wife also made financial contributions, although much less so than the Husband. She says she had savings and shares totalling around $80,000 at the commencement of the relationship, although it is unclear whether any of those funds were utilised for the benefit of the parties. The parties operated a joint account throughout most of their relationship, to which each party contributed part of their income. Those funds were used for joint purposes including groceries, utilities, cleaning of the home, some maintenance, and at times rates and insurances for the home. The Wife’s income did not directly contribute to the mortgage itself, but she played a role in renovating that home. The parties maintained a joint account for most of their relationship, to which they both contributed. Those monies were used for bills, groceries and living expenses, and in part for purposes associated with the maintenance of the home, including contributing towards the rates and insurance for the home, as well as to pay for some smaller items for the home from time to time.

15. I am also satisfied that the Wife made non-financial contributions, as did the Husband. I am satisfied that they both undertook household chores including cooking, shopping, washing and the like. Whilst both assert they attended to more of those tasks than the other, I am not of the view that I have to determine precisely who did more of what in order to be satisfied that each party contributed in this regard to the best of their abilities. They were also both working and had assistance from a gardener and cleaner.

16. There is a dispute as to the extent of the Wife’s involvement in renovating B Street, Suburb C. She says she met a number of times with the draftsperson, was involved in decision making and assisted in the planning phase, with respect to light, room and window sizing and layout. She says the parties were both involved in managing the project, and that she provided significant support, attending onsite meetings, and liaising with tradespeople when the Husband was not available. She says she took a leading role in the layout and fit-out of the bathrooms, laundry and kitchen and the interior design of the property. The Wife has adduced a number of emails exchanged between the parties and various parties engaged for the purposes of the renovations, that support her assertion that she was involved in the process.

17. The Husband says the plans were finalised and drawn prior to the parties’ cohabitation, with no input from the Wife. The application for a planning permit was made prior to cohabitation. He says he was the project manager during the build. He acknowledges the Wife did attend the early morning meetings, and was involved in the selection of paint colours, wood finishes, kitchen benchtops, tiles and the like.

18. There were some further minor works completed on the property in 2016 which included replacing flooring in two rooms and having the property façade painted. The costs of those works were made from the parties’ joint account. Both of the parties say they made payments to some of the tradespeople, but the amounts were not substantial. The Wife says she paid $5,000 from her own monies for some painting to be done. The Wife also arranged for the rooftop garden to be gardened and the sanding and varnishing of the decking.

19. I am satisfied that both parties were involved in the renovation of B Street, Suburb C, although again the Husband’s contributions were greater than the Wife’s. Additionally, I am satisfied that both parties were involved with the repairs to the home following the flooding on New Year’s Eve in 2015, and in the further improvements undertaken to B Street, Suburb C in 2016. Again, it is not necessary for me to specifically quantify the parties’ precise involvement in each of these works, or who came up with particular ideas or suggestions. I am satisfied the Wife was engaged in discussions and choices around layout, materials, finishes, tapware, cabinetry, flooring, paint selection, furniture and furnishings and lighting. She attended onsite meetings and also at times liaised with trades and provided support and assistance to the Husband. In my view it would be unfair to regard the Wife as having done some “running around”, undertaking only “odd jobs” and playing a minor role. Similarly, recognition needs to be given to the substantial work done by the Husband prior to the marriage, and to the time he devoted to the project during the build. The reality is both parties were working hard at their respective careers at the time the renovations and repairs were being undertaken, and I am satisfied that each of the parties spent considerable time on the home in addition to their paid work.

20. Whilst living in Suburb K, the parties both contributed to the rent. The Wife paid the $7,000 bond. Post separation, the Husband retained the bond from the Suburb K property, but he also met the costs of breaking the lease. He has also maintained B Street, Suburb C post separation, and made all mortgage payments.

21. Counsel for the Wife made submissions regarding the quality of the Wife’s contributions, referencing the case of Mallet v Mallet (1984) 156 CLR 605, and the concept described therein by Wilson J of a spectrum ranging from inadequate to exceptionally good contributions. In this case, I was urged to consider the quality of the parties’ contributions in the circumstances of the marriage. In particular, Counsel for the Wife outlined the difficulties the Wife faced in living with a heavy drinker who descended into alcoholism over the course of their relationship.

22. I note the Wife’s evidence that the Husband’s drinking worsened after the parties married; that he once left the doors to the house wide open at night; that he often got so drunk he fell over or fell down the stairs, and that he wet the bed on occasion. The Wife says that following the parties’ delayed honeymoon in, 2017, she became aware of the extent of his drinking. She communicated with the Husband’s brother Mr P and his wife, explaining that she felt demoralised and hopeless about the future of the life they had planned together. The Wife adduced emails exchanged between herself and the Husband’s brother that supported her evidence that she and Mr P were concerned about the level of the Husband’s drinking, and were considering different interventions. She says she was exhausted and unwell, struggling to cope with the Husband’s lifestyle and that in August, 2017 she determined to reduce her hours to work part time, to focus on saving the marriage. The Wife says she subsequently researched rehabilitation centres, and organised activities for them to undertake to improve the Husband’s health. She says the parties engaged in couples counselling and she facilitated discussions with Mr P to create plans around the Husband’s drinking.

23. The Husband agrees that the Wife was not well at that time. However, he denies this was in any way a result of his behaviour and alcohol abuse. The Husband said the Wife told him she needed time to work on her health and felt like she needed a break.

24. I am satisfied that the Husband’s decline into alcoholism would have made it unpleasant and difficult at times to live with him. I accept that this was a source of significant stress and worry for the Wife and that she did her best to try to assist him. I accept that the Wife continued to be committed to and compassionate towards the Husband, and tried to make herself more available to provide support and assistance to him, notwithstanding those circumstances. I am satisfied that she reduced her hours to part time in 2017 as the circumstances of the marriage were draining her, emotionally and physically, and she wanted to be more available to support the Husband in addressing his alcohol issues. Unfortunately the Husband was not ready to be assisted until after the marriage had ended.

    RELEVANT FACTORS PURSUANT TO SECTION 75(2) OF THE ACT

25. Relevantly, the Husband is aged 41. He has a severe alcohol use disorder, depression and anxiety. The Husband was first diagnosed in 2011 with alcohol use disorder, although his treating psychiatrist, Dr N said it was more mild and has progressed since then. That engagement with Dr N for around 12 months followed the Husband being charged with two drink driving offences, resulting in him losing his licence. Dr N said the attendances in 2011 were in relation to alcohol issues, stress and relationships, and the Husband attended upon him for psychotherapy. At that time the Husband was running a busy and profitable practice. His income has continued to increase over time. The Husband described his career as “flying” in 2013 to 2014, and that he was anticipated being on route to further career progression in around 2018.

26. The Husband conceded he was always a heavy drinker although contends he was for the most part highly functioning. He also acknowledges that over time his drinking and dependence on drinking spiralled beyond his control. He now accepts his diagnosis.

27. The Husband was also diagnosed with alcoholism by his then GP in August 2018. He was prescribed Naltrexone, and was able to remain sober prior to the parties’ separation in September. He acknowledges that most of late 2018 to early/mid 2020 was a “write off”, although he did have some limited periods of sobriety.

28. In December, 2018 the Husband had what he described as “a nervous breakdown” and he took an overdose of Diazapam and vodka. He was not able to work the following day.

29. In 2019, the Husband travelled to Country Q to attend a detox. facility. He arrived a few days early, but was involved in a car accident when driving intoxicated.

30. The Husband returned to Dr N in 2019 and remains a patient, attending on a weekly basis.

31. In September, 2019, the Husband suffered what he describes as a “further nervous breakdown”. He says Dr N recommended he undertake a residential medical detox. program and referred him to Dr R, an addiction medicine specialist.

32. Since early 2020, the Husband has participated in a Group Therapy Program at S Hospital for people struggling with issues of substance abuse.

33. There is some dispute as to the effect, if any, of the Husband’s alcohol use disorder on his income earning capacity. There is also some dispute as to what the Husband’s current income is.

34. I was urged to find the Husband’s evidence as to his income as being capable of having the effect of misleading the Court. I am not satisfied the Husband was endeavouring to obfuscate or confuse. It is apparent that the Financial Statement which the Court has used, mostly unaltered, for many years now has significant deficiencies when a party is self-employed. Having said that, the evidence as provided by the Husband insofar as his income, revenue, and expenses was inadequate.  It would have been far more helpful if the explanation provided by the Husband had fully set out his earnings and his expenditure. Court time was unnecessarily spent exploring the Husband’s earnings, business income and expenditure, which should have been set out in detail either in an attachment to his financial statement, or in his affidavit. For the reasons I now outline, I am satisfied that the Husband’s financial statement does not provide the Court with any real understanding of his position in terms of revenue and expenses.

35. It does appear that the Husband has been able to continue working as a legal professional. The Husband asserts there has been a noticeable drop off in terms of billings and receipts. I was told during the Husband’s opening that his taxable income for the year ending 30 June 2019 was $457,158. I understood from the Husband’s evidence that this was less than his taxable income in the preceding financial year. He has not yet lodged his 2020 tax return. He says he was previously on the path to further career progression, but he says his reputation has suffered as a result of his alcoholism, as he was unable to perform consistently, and to the same level over time.

36. The Wife tendered a printout from the Husband’s office showing that in the first 6.5 months of this financial year the Husband has remitted a total of $406,246 and received $421,125 in fees. Fees were processed by the Husband’s practice in January 2021 totalling $23,442. By 18 February 2021, fees processed by the Husband’s practice for that month totalled $5,655. Those amounts of course reflect work that was done some weeks or months ago. I accept that during January the Husband was not working or generating an income.

1. I accept the Husband’s evidence that his expenses in operating his practice are significant. His practice and secretary cost $7,048 per month or $84,576 per year. From the fees remitted year to date he has paid $14,739 in practice fees. He must also pay GST and tax, as well as accountancy fees, insurances, subscriptions and the like. I anticipate he will also have other expenses, including car expenses, mobile phone, and internet. However, he did not provide a breakdown of any of those additional expenses. His evidence is that his business expenses in the last financial year were approximately $180,000, and that in the month before the final hearing he paid between $8,000 to $10,000 in business expenses.

2. Whilst his Counsel said the Husband has provided evidence in other parts of his material, specifically at pages 636-637 of his Court Book, I have struggled to find any evidence that clearly sets out the Husband’s weekly, or monthly expenses in a meaningful way. The debits the Husband has recorded at those pages of his Court Book total $197,447.87 for the period 1 to 15 February 2021. That includes the sum of $147,321 being paid to the ATO on 1 February 2021. I do not know what amount of that is GST and what is PAYG, nor to what period that liability was attributable. The Husband’s BAS statements are not in evidence before me, so I do not know whether the February payment is similar to other ATO payments. The February 2021 expenses also include a total of $34,235 being paid to the Husband’s lawyers, presumably for these proceedings. Accordingly, I am not satisfied this snap shot of February 2021 expenses gives me any real understanding of the Husband’s actual weekly expenses or business expenses.

3. Whilst I accept as a general proposition that the Husband’s overheads are significant, so too are the fees he has been able to bill. I am satisfied that his earning capacity has been substantial. There is a dispute as to whether or not it will continue to be into the future.

4. The Husband says his alcoholism has had an effect on his practice, and that in an attempt to reduce triggers and stressors, he is moving away from some stressful aspects of his work.  The Husband says he has lost clients, and his reputation has suffered as he is not able to deliver work in a timely manner, nor of the quality he previously provided. He says he has returned work. He says he is considering focussing more on paperwork and office duties.

5. Although the Husband is in treatment, he has suffered several setbacks, including relapses and what he has described as breakdowns. He relapsed in July 2020, in September/October and again as recently as December 2020/January 2021.

6. Dr N says the Husband suffers from a severe alcohol use disorder which “has developed over many years and has become increasingly serious, and at time life threatening the last few years”. He notes the Husband has struggled to attain abstinence, and has frequent relapses, which has had a serious and damaging impact on his career and ability to follow through his obligations. He further says:

   Mr Deighton has begun altering how he runs his personal, social and work life. He will have to pay close attention to and address stressors differently. In my opinion he will require ongoing intensive treatment and support for some years whilst he makes these necessary changes to his life and way of being. It is my opinion that until or unless Mr Deighton can move away from the intensity of work that he attempts, it will be difficult for him to attain abstinence. After many months he is coming around to this realization and the impact upon his earning capacity. A large part of the psychotherapeutic work with him is in helping him adjust to reduced expectations for himself in his career in order that he survive.

7. Dr N was required for cross examination but his evidence as to the seriousness of the diagnosis, and the need for the Husband to reorganise his working commitments in order to reduce stress so he can remain abstinent, was not challenged.

8. The Husband also relied upon a report from Dr R. He similarly diagnoses the Husband with severe alcohol use disorder. He wrote of the Husband that he:

   has had episodic relapses to periods of heavy alcohol use associated with significant episodes of work and relationship stress. He is attempting to reduce these stressors over time and continues to engage actively in treatment.

   …

   over recent years he has had significant symptoms of stress associated with his work role and associated with relationship difficulties, including the end of his marriage. To make a sustained recovery from this Severe Alcohol Use Disorder he may need to modify his work role and to continue in ongoing treatment. This condition will have a significant impact on his long-term work and mental health outcome.

9. Dr R was not required for cross examination.

10. In light of the evidence, I cannot quantify the direct financial impact the Husband’s alcoholism has or will have on the Husband’s income. However, I accept that the Husband’s income earning capacity is likely to be affected for some time. It is not seriously disputed that conducting his employment is stressful work, and it is clear that during recovery, the Husband’s treators are urging him to modify his practice to reduce stressors that may trigger a relapse. In light of the evidence, I am satisfied that at least for the next few years, it is likely the Husband may need to reduce his work levels, and accordingly his income, so he can seriously address his alcoholism. If he remains in remission, he may be able to return to employment. There is a long road ahead of him to recovery and some uncertainty around his prognosis and future income earning potential. The Husband’s clear insight into his illness and his commitment to making himself well makes it more likely that he will be able to recover and be able to rebuild his practice. However, notwithstanding that the Husband’s income is likely to be lower than he previously generated, I am satisfied it is still a substantial income.

11. The Wife is aged 37. She is generally in good health, although she has struggled at times with depression. She is earning AUD$260,000 per annum. She may also receive a 20% bonus, contingent on performance. The Wife says this is not considered a high wage in Country D where the cost of living is very high and basic items are expensive. She says she also intends to proceed with IVF later this year, and if that is successful, she intends to work part time.

12. The Wife says her career was negatively impacted upon as a result of the marriage. I have already outlined her assertions that she resigned Head of Department in early 2013, and then reduced her hours to work part time in 2017. She says the decision in 2013 was made after the Husband assured her of his financial support, and that her told her to focus on and prioritise their relationship. The Husband acknowledges that the Wife was considered a “future leader” at Employer F, and that she has a unique skill set. However, he says the Wife resigned as Head of Department as she was stressed and miserable and felt unsupported by her employer. He says they did discuss that the additional income was not necessary, and she decided to resign. I accept that the Husband told her they did not require the additional income the promotion brought. However, I am satisfied that the Wife’s decision to resign from the position was primarily because she found the additional workload very demanding and stressful, which it no doubt was.

13. In relation to the Wife’s reduction to part time hours in 2017, she says she had been included in a highly competitive emerging leaders’ course, and that taking herself out of that impacted her career progression. I note the Wife deposes to suffering significant poor health at that time. She says she developed a medical condition caused by stress, she was struggling to get out of bed on some days, she had burning sensations in her hands and her eyes frequently swelled and were inflamed. She does not have medical evidence to support these assertions, and there is no evidence upon which I can rely to support a finding that these issues were as a result, or substantially as a result of the Husband’s lifestyle. I also note the Wife’s outline asserts that the decision to reduce her hours to part time in 2017 was made jointly. However, I am not satisfied that decision was made jointly. Although the Wife had raised the issue with the Husband he did not agree to the Wife doing so before she made the decision herself.

14. It was submitted by Counsel for the Wife that there should be a 5% adjustment based on the sacrifices the Wife says she made to her career during the parties’ relationship and the impact she says that has had on her career trajectory and her income. She says whilst she is currently in a more senior role with her new employer than the one she held with Employer F, the pathway available to her was less lucrative than the pathway she was following at the time the parties commenced cohabitation.

15. The Wife did not adduce any independent evidence from Employer F as to their hopes for her as at 2013 and 2017 or what her options may have been now had she not stepped down as Head of Department in 2013 or reduced to part time hours in 2017. She did not adduce any independent evidence as to the sort of income she could have reasonably been expected to earn had she remained in her role in 2013 and/or had she not reduced to part time in 2017. In 2012, she was earning $134,000 per annum inclusive of superannuation. Eight years later she is earning the equivalent of AUD$260,000 per annum plus potential bonuses. She is a global director of another international company. Accordingly, I am not satisfied on the evidence that the Wife’s income- or career - has been significantly impacted as a result of the parties’ relatively short relationship.

16. Moreover, I have already referred to the Wife’s commitment to the parties’ relationship, and her reduction of employment hours so that she could more actively support the Husband to address his alcohol use issues. I have taken that into account in assessing the parties’ contributions. I must be careful not to “double count” by way of a further adjustment pursuant to s75(2)(k). I also note that intention and compensation are not factors which appropriately influence alternation of property interests; per Warnick J in CCD & AGMD (2006) 36 Fam LR 356 [43].

17. I note the Wife has remarried. Her husband is not currently working, although his taxable income was $193,850 for the financial year ending 30 June 2020. She says Mr E has been unable to obtain employment in Country D as he does not speak the language. He owns a property in Suburb T, which the Husband says is worth $1,200,000, and subject to a mortgage according to the Wife of $928,600. He also has a share portfolio, the value of which is unclear, together with superannuation of approximately $196,600. She says she and her husband will consider moving to the Country H when her contract ends in two years, hoping for more lucrative job opportunities for each of them.

    COMPARABLE CASES

18. As observed, this is not a mathematical exercise where components of contributions are each to be attributed percentage points. This is an holistic exercise in weighing the contributions of each of the parties before, during and after their cohabitation. My discretion is wide and significantly unfettered.

19. I was taken to the observations of Murphy J sitting as the Full Court in Anson & Meek (2017) 57 Fam LR 23 [96]-[112] (“Anson”) in which his Honour refers to the Full Court decision of Wallis and Manning (2017) FLC 93-759. In that case their Honours said that comparable cases can and should be used so as to inform the assessment of contributions, provided some analysis of those cases is undertaken to ascertain their comparability. Their Honours were clear that what occurs in one case cannot determine the result in another, and no two cases are precisely the same. They emphasised the width of a trial Judge’s discretion, and that this has been largely left unfettered, requiring a determination that is just and equitable in all the circumstances.

20. In Anson Murphy J made the following observation at paragraph 99:

    [T]he point sought to be made in the two decisions of the Full Court from which I have earlier quoted is that “‘what has been done in other (more or less) comparable cases’ – with consistency as its aim” can be, and very frequently should be, a relevant consideration in the exercise of discretion, particularly in respect of contributions, because a consistency in the jurisprudence should be one of a number of factors relevant to what is just and equitable.

21. Similar observations were made by Deane J in Mallett [at 639-641] of the necessity for some consistency in order to meet underlying notions of what is just and appropriate, and that this should lead to the consideration of prior cases “for assistance and guidance”.

22. His Honour Murphy J in Anson also observed at paragraph 102 that in relation to cases sometimes described as a “short marriage case”:

    It should be reiterated immediately that there is no magic or particular significance in the nomenclature “short marriage cases”; it serves merely as a descriptor for seeking to group together and compare relatively alike with relatively alike.

23. Murphy J then sets out a summary of a number of cases in which the parties were cohabiting for up to 7 years, and did not have children together, to which the trial Judge had been referred and which he said she appropriately considered. In the cases of Blanks v Blanks [2006] FamCA 354 (‘Blanks’), CCD v AGMD (2006) 205 FLR 97 (“CCD v AGMD”), Kennon v Kennon (1997) 139 FLR 118 (“Kennon”), Russo v Dorsey [2014] FamCA 467 (“Russo”)¸ In the Marriage of R and B Shewring (1987) 92 FLR 385 (“Shewring”) and W & W (unreported, Full court, Baker, Lindenmayer and Smithers JJ, 28 January 1997) (“W & W”) one party brought in the major assets and was held to have made the overwhelming financial contributions. Those facts are comparable to the extant case. However, none of the cases is “on all fours” and I was not referred to any other comparable cases.

24. I note that the Husband’s initial contribution in Blanks was substantially greater than the Husband’s in this case (although the evidence in Blanks did not enable that to be properly quantified) and the parties were considerably older. In that case the Wife also provided support to the Husband’s son who lived with them for a period and had significant mental health issues. In that matter, the Court assessed the Wife’s contributions as at 7.5% and made a further 5% adjustment on the basis of s75(2) factors.

25. In the matter of CCD & AGMD the husband was 78 years of age and the Wife 52. The Husband’s initial contributions were found to be $2.5M and the Wife’s $85,000, being equity in a home. Accordingly, the Husband’s initial contributions vis a vis the Wife’s were even greater than in the present case. She had assisted the Husband in his business with some bookwork and general administration for the first two years. Save for making some mortgage payments on the home she owned, she had otherwise not earned an income, or made financial contributions, during the relationship which was for less than 5 years. The only income the parties had was derived from assets owned by the Husband. He paid all her living expenses including meeting the costs of overseas travel on three occasions, and provided her with additional funds. These matter differ from the present case. The Wife did attend to home duties and established and maintained new gardens. On appeal, the Full Court did not make any adjustment to the Wife on the basis of contributions beyond her retaining the assets she had. The Full Court made that determination on the basis of the following factors:

    (a)the Wife’s own assets had increased during the relationship;

    (b)the enormous disparity in initial contributions;

    (c)the funding of leisure activities by the Husband;

    (d)the fairly short period of cohabitation; and

    (e)that there were no children.

26. The Court indicated an appropriate adjustment of between 2.5 and 3.5 percent could be made pursuant to s75(2), on the basis that there was, in that case, disparity in the financial circumstances, including the assets and incomes of the parties. The Wife retained 8.36% of the entire pool.

27. In Kennon the Husband’s initial contributions were $8.7 million and the Wife’s around $49,500. The relationship spanned 5 years, and at trial the net assets amounted to $8.8 million of which approximately $95,000 was property of the Wife. That is, the Husband’s assets at trial were virtually unchanged from those assets he had at the commencement of cohabitation. The Husband earned about $1 million per annum from his advertising business whereas the Wife worked variously part time or not at all, earning substantially less than him. On appeal, Fogarty and Lindenmayer JJ noted that the Wife’s financial contribution of her income at [84,297] “was minuscule compared with the husband’s contributions of capital and income”, however their Honours also recognised the Wife “contributed fully to the task of wife and homemaker”.

28. Their Honours also observed at [84,299]:

    Marriage involves a myriad of matters, large and small, which go to make up that union and differentiate it from more casual, transitory relationships. It involves sharing the minutiae of daily life, support during good and bad times, care and intimacy. These and other matters are intended to be encompassed by the matters in s.79, the actual balance of those components varying from marriage to marriage. Essentially it is an intimate sharing of mutual but diverse talents for their joint benefit.

29. Their Honours made orders that the Wife receive a payout of $700,000. This amounted to her receiving 8% of the pool, being made up by way of 4.5% by way of contributions and 3.5% by way of s79(4)(e). I note that the Husband’s initial contributions, as well as his financial contributions during the parties’ relationship were significantly greater than in the present case.

30. The parties were together for just 3 years in Russo. The Respondent’s initial contributions were at least $5 million, and the Applicant’s approximately $100,000. Indeed the Respondent’s initial contributions may well have been significantly greater than that. Clearly, this is a significantly greater initial contribution by one party than in the present case. Similarly to the extant case, the Respondent’s financial contributions during the marriage were greater than the Applicant’s. She also cared for the Respondent’s teenage children from a previous marriage from time to time. Her contributions were assessed at 5% with a further 3% adjustment made to her pursuant to s90SF(3).

31. The Wife in Shewring brought in all the assets to the parties’ 7 years relationship. They moved together into her property, which was then sold and another property purchased with the proceeds of sale, with additional monies the Wife received by way of inheritance. The property was then renovated, with the Wife meeting the costs, and the Husband physically undertaking some modest part of the labour himself. Indeed the Full Court described his contributions as “minimal”. He received a payment of $12,500, less than 2% of the pool. There was no further adjustment on the basis of s75(2). At the date of hearing, the Husband’s income was greater than the Wife’s.

32. The parties in W & W had been married for 5 ½ years. The Wife’s initial contributions were $191,500 and the Husband’s were in excess of $2,000,000. The Husband’s financial contributions during the relationship also substantially outweighed those made by the Wife, whose business was insufficient to meet her own living expenses and outgoings. Additionally she invested in a bad business venture post separation and lost substantial funds. There is no suggestion the Wife in the extant case has invested unwisely, or spent wantonly or excessively post separation. The Husband inherited substantial property and shares post separation. The Full Court determined the appropriate contributions assessment was 5% to the Wife and a further 2.5% s75(2) adjustment, providing her with assets totalling $148,000 out of a pool of $1,974,307.

1. In Anson the trial Judge assessed the Wife’s contributions at 20% and made a further 20% adjustment to her on the basis of s75(2) factors. The Husband had purchased his farming property about one year before cohabitation commenced. The parties were married for just under 5 years, and there were 2 ½ years post separation before the matter was determined by the Court, similarly to this case. On appeal, the Full Court said the trial Judge should have considered that the Husband’s capital had permitted entry into the market, that there was no evidence the increase in the value of the farm was as a result of the parties’ contributions, and that the Husband had solely contributed to the farm for 3 ½ years out of the total 8 years he had owned it when analysing the parties’ respective contributions. The trial Judge in Anson was also satisfied the marriage had an adverse impact on the Wife’s earning capacity. She had resigned from her position as a CEO of an organisation earning $180,000 per annum, to travel to East Asia where he was working. There was evidence that the Wife’s efforts to resume her career post separation were unsuccessful. Whilst the Full Court did not quibble with those findings, the trial Judge was held to have erred in making an adjustment based on a mathematical calculation as to the income the Wife was anticipated to have foregone as a result of the diminution of her earnings until age 65 and remitted the matter for rehearing. It appears the parties subsequently resolved their dispute by consent.

2. The Husband’s Counsel referred to the case of GBT & BJT [2005] FamCA 683 in which the parties had cohabited for 6 ½ years. The trial Judge had determined the Wife’s contributions at 12.5% and a further 5% adjustment on the basis of s75(2). The Full Court considered the assessment in terms of contributions was manifestly excessive, given the overwhelming financial contributions of the Husband, and the trial Judge’s findings that the Wife’s contributions were minimal. There were no children of the marriage, and all contributions made by the Wife were in the homemaker sphere, in circumstances where the parties had significant domestic assistance. Her contributions were assessed at 5%. The Full Court further determined that whilst the Husband’s income was greater than the Wife’s, insufficient weight may have been given to the shortness of the marriage, and in light of the findings that the Wife was in a comfortable financial position post separation, an adjustment under s75(2) was limited to 2.5%. Accordingly,

   DETERMINATION

3. There are, as outlined, some similarities between these cases and the one presently before me, as well as obvious distinctions. Of course, I must determine how to exercise my discretion on the basis of the facts as they are in the matter now before me. In my view, the matters in the present case that are particularly relevant to the consideration of the parties’ contributions are:

   (1)the fairly short period of cohabitation;

   (2)there are no children;

   (3)the Husband’s significantly greater financial contributions initially, during and post cohabitation – by bringing in the major asset, by paying for the works done to the property and paying the mortgage on the property. These are obviously weighty considerations;

   (4)it is clear the Husband made more significant financial contributions during the marriage than did the Wife. However, the Wife worked throughout the relationship and contributed part of her income to the parties’ living expenses, which included some contributions towards the upkeep of the property, and for some rates and insurances. Accordingly, her contributions were not limited only to the homemaker sphere;

   (5)B Street, Suburb C was renovated, and both parties contributed towards that endeavour, with the Husband’s contributions to the work starting well before the parties cohabited. I have already set out my findings as to the extent of the parties’ contributions to the renovations and subsequent maintenance of the home. The value of B Street, Suburb C has increased, although there is no evidence as to what the property would now be worth had the renovations not been undertaken. As set out, it is also clear that the Husband funded the costs of those substantial renovations which cost around $500,000;

   (6)the parties’ homemaker contributions, in terms of cleaning, cooking, shopping and washing; and

   (7)the additional support the Wife provided the Husband given his alcohol abuse. For instance, reducing her hours to work part time in August 2017 partly to be more available to assist him. That particular element – of providing support to a party with a significant disorder - does not appear to be a fact shared with any of the cases referred to.

4. In my view, the parties’ contributions to the tangible pool as determined by me is 91% to the Husband and 9% to the Wife. That properly weighs and recognises the Husband’s homemaker contributions and his far greater financial contributions, as well as recognising the Wife’s direct and indirect contributions, financially and as a spouse and homemaker. For the reasons set out, I do not view the Wife’s contributions as minimal, although they are clearly significantly less than those made by the Husband.

5. In terms of s75(2) considerations, there is disparity in the parties’ financial circumstances, in terms of assets and income. The Husband will retain B Street, Suburb C. I am satisfied that the Husband has a greater income earning capacity than the Wife. I note that currently his practice continues to generate significant billings. As outlined, there is some uncertainty surrounding the Husband’s health and the impact that may have on his income. However, provided he continues to address his alcoholism, he will be able to continue to earn a substantial income, although perhaps not at the level he previously enjoyed for potentially the next few years. The Wife is also earning a reasonable income, although it is lower than the Husband’s current earnings. She has re-married. Her Husband appears to have some assets, although I note the Wife says his income earning capacity is limited at this time given that they are living overseas.

6. I am satisfied for the reasons outlined that there is a basis for a small further adjustment on the basis of s75(2) factors of 2%, giving the Husband 89% of the pool, and the Wife 11%.

7. The effect of my determination is that the Husband is to pay the Wife the sum of $157,261. I am satisfied that is just and equitable in all the circumstances.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter.

Associate:

Dated:       14 April 2021