LANE & LANE

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANE & LANE

[2015] FCCA 173

Catchwords:
FAMILY LAW – Matrimonial property proceedings – spousal maintenance – marriage of sixteen years duration – marriage produced two children aged fourteen and eight – husband (occupation omitted) with capacity to earn a high income – wife non-native English speaker and lacking in employment skills – older child currently living with husband – younger child currently living with wife – assessment of contributions – assessment of section 75(2) factors – considerations of justice and equity – spousal maintenance – factors to be considered.

Legislation:

Family Law Act 1975, ss.4(1); 72; 72(1); 74; 74(1); 75(2); 75(3);79(1); 79(2); 79(4); 80(1); 90MC

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
Stanford v Stanford [2012] HCA 52
Watson & Ling [2013] FamCA 57
Robb & Robb (1995) FLC 92-555
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
Rushton & Rushton [2011] FMCAfam 1259
NHC & RCH (2004) FLC 93-204
C & C (2005) FLC93-220
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
In re: Watson: ex parte Armstrong (1976) FLC 90-059
Mallett & Mallett (1984) FLC 91-507; 156 CLR 605
Bevan & Bevan (1995) FLC 92-600
Mitchell & Mitchell (1995) FLC 92-601
Kiesinger & Padget [2008] FamCAFC 23
Brown & Brown (2007) FLC 93-316
Bevan & Bevan (1995) FLC 92-600
Ferraro & Ferraro (1992) 16 FamLR 1
Kane & Kane [2013] FamCAFC 205
Steinbrenner & Steinbrenner [2008] Fam CAFC 193
Clauson & Clauson (1995) FLC 92-595
Collins & Collins (1990) FLC 92-149
Dickson& Dickson (1999) FLC 92-843
L & L [2003] FamCA 40
Ferguson & Ferguson (1978) FLC 90-500

Applicant:

MS LANE

Respondent:

MR LANE

File Number:

ADC 4391 of 2013

Judgment of:

Judge Brown

Hearing dates:

8 & 9 December 2014

Date of Last Submission:

9 December 2014

Delivered at:

Adelaide

Delivered on:

4 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

Scales & Partners

Counsel for the Respondent:

Mr McQuade

Solicitors for the Respondent:

C M Tucker & Associates

ORDERS

In full and final settlement of all claims for settlement of matrimonial property:

Within twenty-eight (28) days of the date of these orders the parties do all things necessary to put the former matrimonial home, being the property known as and situate at Property B in the State of South Australia and being the whole of the land contained in Certificate of Title Volume (omitted) Folio (omitted) (hereinafter referred to as “the former matrimonial home”) on the market for sale with an estate agent and at a price to be agreed between them and failing agreement as nominated by the court.
Pending the sale of the former matrimonial home the husband be responsible for all outgoings in respect of the property, including payment of council rates and all payments in respect of mortgages secured against the property.
Upon the settlement of the sale of the former matrimonial home the proceeds of sale be distributed as follows:
(a)In payment of the commission due to the selling agent;
(b)In payment of all legal costs relating to the sale;
(c)To discharge all moneys secured against the title in favour of the (omitted) Bank;
(d)As to any balance remaining:
(i)80% to the wife;
(ii)20% to the husband.
Including but without limiting the effect hereof the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a)The real property registered in his name located at Property G, in the State of South Australia and being the whole of the land contained in Certificate of Title Volume (omitted) Folio (omitted) (hereinafter referred to as “the Property G property”).
(b)The contents of the Property G property, particularly the plant and equipment relating to the husband’s (business omitted) conducted thereon;
(c)The motor vehicle currently in his possession;
(d)His furniture, artwork and personal effects;
(e)The superannuation, standing in his name, with Super (omitted);
(f)His savings, shares and investments in his name.
Within twenty-eight (28) days of the date of these orders the wife take all necessary steps to withdraw, at her own expense, the caveats lodged by her against the title of both the former matrimonial home and the Property G property.
Including but without limiting the effect hereof the wife shall retain for her sole use and benefit absolutely free from any claim or demand of the husband;
(a)The furniture and furnishings in her possession, power and control;
(b)Any motor vehicle in her possession;
(c)Her savings;
(d)Her personal effects, including jewellery.
The husband retain all moneys standing in any bank account relating to the Lane Family Trust, which was established by the parties during the course of their marriage.
Within twenty-eight days (28) of the date of these orders the husband and wife do all things necessary to rollover the wife’s interest in the Lane Superannuation Fund to a superannuation fund in the wife’s sole name as nominated by the wife.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 there be a splitting order, in the sum of ninety thousand dollars ($90,000.00), made in the wife’s favour out of the funds currently standing in the husband’s name in the Lane Superannuation Fund.
The trustee of the Lane superannuation fund do all things necessary to give effect of order (9) hereof within twenty-eight days (28) of the date of these orders to rollover the sum to be split in the wife’s favour to the superannuation fund as nominated by the wife.
The husband pay to the wife spousal maintenance to be calculated at the rate of six hundred dollars ($600.00) per week until 31 July 2018.
All applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4391 of 2013

MS LANE

Applicant

And

MR LANE

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Lane “the wife” and Mr Lane “the husband”. The proceedings relate to the settlement of matrimonial property.
The parties met in (country omitted) in 1995. At the time, the husband was working as a (occupation omitted) engaged in (duties omitted). The wife was recently separated and a single parent, caring for her son, Z born (omitted) 1993.
The parties agree that the relationship between them became a committed one relatively soon after they had met. They began to live together in (country omitted). Ms Lane has had a (country omitted) secondary education and has previous experience working in (occupation omitted) in (country omitted).
In 1998, Mr Lane decided to return to Australia. Ms Lane, with some trepidation, agreed to accompany him to see if she and Z could adapt to living in Australia. Australia was a strange and unknown place for her and her English, at the time, was rudimentary. Ultimately, Z and the wife migrated to Australia and the parties married, in Adelaide, on (omitted) 1999.
The parties finally separated, in difficult circumstances, in mid-2011. Accordingly, the relationship between them is one of around sixteen years in duration. There are two children of their marriage – X, born (omitted) 2000 and Y born (omitted) 2006. However, there is no dispute between the parties that Z has regarded Mr Lane as his father and a close paternal relationship exists between the two.
Since his return to Australia the husband has worked as a (occupation omitted). To use his own phraseology, he is very good at what he does. As a consequence of a combination of aptitude, his professional skills and his hard work, Mr Lane enjoys significant remuneration. At present, he is capable of deriving an income of approximately $500,000.00 per annum.
When she arrived in Australia, Ms Lane spoke little English. She has taken English language lessons since, but remains far from fluent in the language. During the course of the parties' marriage, Ms Lane has had employment as a (occupation omitted) and worked, for a period of time, in one of her husband’s (businesses omitted), in an administrative capacity.
The wife has not been formally employed since the parties separated. She has continued to live in the parties’ former family home, located at Property B “the Property B property”. The property is subject to a significant level of debt. She has received payments of spousal maintenance and child support from the husband, who has also paid the mortgage on the Property B property.
Mr Lane has continued to make the necessary mortgage payments on the Property B property and has provided spousal maintenance for Ms Lane, in the sum of $600.00 per week. He has also made financial provision for X and Y, as well as for Z, whom, as previously indicated, he regards as his own child.
At present, Ms Lane is studying for a (studies omitted). She hopes to be able to obtain some form of employment, either (omitted) or as a (omitted), at some stage in the future. However, there can be no doubt that there will always be a vast disparity between what she is likely to earn and the income of the husband. This disparity in future income earning capacity is the core issue in this case.
Although Mr Lane has derived a significant income for the past few years, this income has not translated into appreciable levels of capital, which is now available for division between the parties, who seem to have enjoyed a high standard of living during their marriage. In monetary terms, the parties’ most significant asset is the Property B property.
The parties agree that the Property B property must be sold. It is likely to produce net proceeds of around about $500,000.00. In addition, the parties have a self-managed superannuation fund, which holds a sum of approximately $244,000.00.
The major issues for resolution, as a consequence of these proceedings, can be summarised as follows:
·How should the proceeds of sale of the Property B property be divided?
ØThe husband asserts 80/20 percent in the wife’s favour;
ØThe wife asserts that she should receive the entirety of the sale proceeds.
·How should the parties’ superannuation be divided?
ØThe wife asserts that a splitting order should be made so that the parties’ respective holdings of superannuation are equalised;
ØFor his part, the husband asserts that the wife should retain the monies attributable to her contributions to the self-managed fund, which come to a sum of approximately $40,000.00.
·In what quantum and for how long should the spousal maintenance order, made in favour of Ms Lane, continue?
ØThe husband asserts that the appropriate quantum is $500.00 per week and the maintenance should cease in two years’ time;
ØThe wife asserts that the appropriate figure should be $600.00 per week and that the payment should continue indefinitely.
The wife’s approach to the case is predicated on the basis that the husband’s overwhelmingly superior income and earning capacity dictate that she should largely retain the parties’ liquid assets, as the husband will soon be able to restore his financial circumstances and thereafter lead a comfortable lifestyle, whereas she will always struggle to make ends meet because of her limited skills and imperfect English.
In addition, it is her case that it is proper, in all the circumstances of the case, which she would characterise as not being an ordinary run of the mill case, that the husband should provide her with an ongoing income stream, for the indefinite future, in the light of the obvious discrepancy of income between them, a situation which is never likely to change.
In her trial affidavit,[1] the wife further sought an order that the husband pay her a further lump sum of $300,000.00, which was to be raised by him through some form of mortgage on an unspecified piece of property. The wife has not pursued this ambitious application at trial.
[1] See wife’s trial affidavit filed 12 November 2014 at paragraph 92
On the other hand, it is the husband’s position that, whilst acknowledging the obvious income earning imbalance between him and the wife, it would be grossly unfair to him to leave him with no tangible assets, at the end of the lengthy marriage between the parties, particularly when his overwhelming financial contributions are considered. Without doubt, he was the financial engine of the marriage and generated the funds which enabled the family to enjoy a comfortable standard of living.
In this context, he places significant emphasis on his support of Z during the parties’ marriage. In strictly legal terms, he had no responsibility to provide financial support for Z. That legal duty resided with Z’s parents. Z is now a university student and continues to receive financial support from the husband.
In addition, Mr Lane asserts that there should be, at some foreseeable time in the future, a clean break, in terms of the on-going financial relationship between the parties. As a consequence, he opposes the making of an indefinite spousal maintenance order in the wife’s favour.
These proceedings are intended to resolve these various issues arising between the parties and, if possible, avoid the necessity for further legal proceedings between them, so that they may each move on with the remainder of their lives.

Other relevant background

When these proceedings were initially instituted, in late 2013, each party sought final orders in respect of parenting arrangements for X and Y. This aspect of the case raised difficult and controversial issues, which to the mutual credit of both the husband and the wife, have now been consensually resolved.
The parties have agreed that they should equally share parental responsibility for X and Y, but that there should be different living arrangements for the two children. Essentially, X is to live predominantly with his father and Y is to live predominantly with her mother. In order to understand why there are different arrangements for the two children, it is necessary to provide more background regarding the parties’ married life.
Since 2000, the husband has operated his (business omitted) in remote parts of South Australia. Firstly at (omitted) and since 2004 at (omitted). The wife worked as the (omitted) of the husband’s (business omitted) between mid-2004 until late 2007.
The parties purchased the Property B property in 2003. The property was rented out between 2003 and mid-2007. In 2008, the husband purchased a property located at Property G, “the Property G property”.
The husband purchased the Property G property to serve as his (business omitted). He borrowed the entire sum required to finance the purchase. Property G property continues to be the site for the husband’s (business omitted).
Z attended (omitted) College, in Adelaide, as a boarder, from 2006 onwards. At the end of 2007, the parties briefly separated. X was around seven years of age and Y was not yet two. In addition, the wife had recently undergone treatment for Graves’ disease, a serious condition of the thyroid.
It is the wife’s case that she was very tired and debilitated following radiation therapy prescribed to treat her thyroid condition. In these circumstances, she did not feel well enough to return to Property G, at the end of the 2007 Christmas period. Rather she elected to remain living with all three children, at the Property B property, whilst the husband returned to his (business omitted) in (omitted). Z began to attend (omitted) School, as a day student, from the start of the 2008 school year.
The parties reconciled during the course of 2008. It was agreed that the wife and three children would continue to live in the Property B property, whilst the husband would commute to and from (omitted), spending a three day weekend, in Adelaide, each weekend.
The parties agree that they finally separated on 28 June 2011, when an unpleasant altercation occurred between them. The parties have very different views as to the cause of this altercation, which involved the attendance of the police and resulted in the husband being charged with assault, which charge was later withdrawn.
Given the parties have resolved the children’s aspect of the case, it is not necessary for the court to resolve this aspect of the case. However, in broad terms, the wife asserts that the husband behaved in a coercive and controlling fashion during the course of the marriage.
On the other hand, the husband asserts that the wife was on occasions emotionally volatile, particularly after she had been drinking, which lead to her assaulting him, including on the occasion of the parties’ final separation, when he was required to defend himself.
Notwithstanding the difficult circumstances surrounding the parties’ final separation, the previous arrangement by which the husband had spent each weekend at the Property B property continued after June 2011, once the police charges had been resolved. The parties agreed that they were separated under the one roof, during these periods.
Thereafter the wife sought an administrative assessment of child support and an informal agreement was reached by which the husband would provide some financial support to the wife and continue to pay outgoings in respect of the Property B property.
It is the husband’s position that X has a troubled relationship with his mother as a consequence of his (X’s) exposure to her heavy drinking and what Mr Lane believes to be her largely untreated depressive illness.
The husband also alleges that, on occasions, the wife was a poor and neglectful homemaker. As a consequence, he paid Z to assist in caring for X and Y and was himself responsible for the care of the two children on weekends.
This was the background to the husband’s initial position in respect of the children, which was that Y should live with him in Property G, whilst X should attend boarding school in Adelaide but live with his father during the majority of school holidays. The wife vigorously opposed this application seeking orders that both children should live predominantly with her, in Adelaide.
It is the wife’s position that Y has a particularly close relationship with her, as she has always been Y’s primary provider of care. She acknowledges that there have been some difficulties in her relationship with X, but alleges that these were largely as a consequence of the husband’s influence on X. Ms Lane did not believe that it would be beneficial for X and Y to live in different households, separated from one another.
The wife instituted these proceedings on 22 November 2013. She sought a number of urgent interim orders, including the sole occupation of the Property B property and an award of spousal maintenance, in her favour, in the sum of $1,200.00 per week, together with the payment of all outgoings in respect of the Property B property.
On 17 December 2013, it was agreed that the husband would pay the wife the sum of $600.00 per week by way of interim spousal maintenance and would pay all outgoings and insurance on the Property B property and keep it properly maintained. In addition, it was agreed that the husband would continue to pay the children’s school fees and private health premiums. Orders were made by the court to this effect on this date.
In order to support his assertion that the wife had serious problems in respect of her consumption for alcohol and attending to the needs of X and Y, the husband filed an affidavit deposed to by Z, which was critical of his mother. I was concerned at the prospect of Z having to give evidence in the case and potentially be cross-examined, as to credit, by his mother’s lawyer.

In all these circumstances, the parties wisely decided to commission an independent expert to prepare a family assessment report. The expert chosen was Ms M, an experienced psychologist. It was she who recommended that X live predominantly with his father and that Y should live predominantly with her mother.
The parties elected to accept her recommendations, which I ratified on the first day of the trial, being satisfied that the orders proposed would best serve the interests of both X and Y. Accordingly these reasons for judgment are not directly concerned with issues to do with the children. However, I would be naïve to consider that the powerful emotions unleashed by this aspect of the case have dissipated.
Given that Mr Lane proposes continuing his (business omitted) in (omitted), which is a significant distance away from Adelaide, this outcome creates logistical problems. These problems have been solved by Mr Lane renting accommodation in (omitted), which will provide a home for X and perhaps Z as well. This will enable Mr Lane to continue his routine of spending each weekend in Adelaide, whilst continuing to work in (omitted).
In order to provide care for X and Z, during the week, the husband has installed his mother in the (omitted) property. She is retired from the workforce and long separated from her husband. In these circumstances, Mr Lane pays his mother an allowance of $800.00 per week. The rent for the accommodation in (omitted) is $750.00 per week.
At present, Y attends a state funded primary school. Previously she attended (omitted) College. Mr Lane wishes Y to return to this school, when he is more financially secure. He proposes that he would pay the fees incurred. The wife is open to this arrangement but would like it to commence when Y is older, probably when X has finished his secondary education and Y is about to commence Year 9.
The current child support assessment for the children was issued on 25 September 2014[2] and reflects the fact that X and Y live in different households. The assessment is based on a child support income of $508,465.00 for the husband; and one of $17,734.00 for the wife. This results in Mr Lane being assessed to pay a monthly amount of child support to Ms Lane of $1,543.75.
[2] See exhibit D
Although Mr Lane concedes that he enjoys a significant income, it is his position that there are many calls upon it, particularly expenses which are directly referable to family matters, such as the current spousal maintenance order; expenditure relating to X and Z; and child support for Y. In his submission, these are further factors which justify him receiving at least some modest portion of the accrued marital capital.
In all these circumstances, at both the interim and final stage, the case raises complex legal issues, which have included arrangements for the children; the occupation of the Property B home; and provision of financial support by the husband for the wife, both pending trial and afterwards.
In addition, marital assets had to be valued. These included the Property B and the Property G properties; the husband’s (business omitted) ; and the contents of the former matrimonial home. There was some controversy about the appropriate method to value the (business omitted).
Accordingly, as the case has proceeded to final hearing, each party has incurred significant legal fees. The husband estimates his legal fees as being somewhere in the vicinity of $37,000.00, which he has largely been able to defray, as he has gone along, by the application of his significant income.
The wife estimates her legal fees as being somewhere in the vicinity of $72,000.00, of which she has paid $13,000.00. She raised this sum by selling some items of her jewellery to a friend. Accordingly, the end of the case will leave her with a significant liability, for legal fees, which she asserts she will struggle to discharge, in marked contrast to the husband, who can expect to be largely free of liability for legal fees.
In the wife’s submission, her liability to pay her legal fees must be factored into the court’s determination of what is a just and equitable outcome in the case, in some way. How this should occur is to some extent a legal issue, which I will address in due course.
However, overall, it is the wife’s position that her liability for a significant sum in legal fees is a further matter which justifies her receiving the entire proceeds of sale of the Property B property. Otherwise the intent of the court to award her any lesser amount of capital will be significantly eroded, after she has paid her various solicitors and counsel.

The evidence

Although this is a case replete with issues and controversies, it is not one that turns upon the court’s assessment of the credit or truthfulness of the parties concerned. Rather, it is one characterised by each of the party’s different response to the difficult and stressful circumstances surrounding the end of their long marriage and the turbulent circumstances, which precipitated their separation.
In my assessment, both the husband and wife were honest witnesses, who did their best to give a truthful account of their financial history together and their different prospects for the future. In my view, neither party attempted “to guild the lily” so far as their individual circumstances are concerned.
However, there are some factual issues between them one minor, the other being more significant. The minor one concerns the payment of Z’s boarding school fees, at (omitted) School, whilst the family was living in (omitted) – were the fees paid by the wife from her earnings as the (occupation omitted) at (business omitted) or were they paid by the husband, from his income as a (occupation omitted)?
In my view, not a great deal turns on this issue. The husband has provided credit card statements and bank records for 2006 and 2007, which indicate that the fees were paid from accounts in his sole name.[3] In these circumstances, it seems more likely than not that there was no formal arrangement through which the wife’s wages were utilised to pay Z’s school fees.
[3] See annexure A to the husband’s trial affidavit filed on 2 December 2014
Rather it seems likely that Z’s expenses were not quarantined in any way, but regarded as a normal incident of the parties’ financial and family life together. As the husband generated the larger proportion of the family’s income, the payment of the fees concerned came from his income.
The major factual dispute is the one to which I have already alluded. It concerns how the parties’ various homemaking and parenting contributions are to be assessed in the turbulent circumstances of their relationship, particularly after their first separation at the end of 2007.
The parties, particularly the husband, have been willing to broach this issue in the print of their affidavit material but have shied away from pursing it in their oral evidence. The wife indicated that she would not choose to cross-examine Z and the husband elected not to call him.
I can well understand why each party would adopt the stance, which they have in this regard, particularly given the consensual resolution of the children’s aspects of the case. The forensic examination of these issues can have only hindered the fostering of any positive parenting relationship between the parties for the future.
In general terms, it is a notoriously difficult to assess homemaking and parenting contributions retrospectively, in the context of adversarial proceedings such as these, where the parties concerned have some significant level of animosity for one another and, as a consequence, are unlikely to have a completely objective or unbiased view of their various contributions in this regard.
For obvious reasons, it is rarely the case that witnesses are available to the court, who are able to provide a completely dispassionate account of who did what and how often and how well, within the private confines of the domestic situation concerned. In addition, it is often the case that the assessment of household tasks and parenting skills has a particularly subjective quality.
The husband and wife enjoyed a comfortable life together. Neither appears to be of a disposition to put money away “for a rainy day”. The husband was content for the wife to travel back to (country omitted) from time to time and to take other holidays. She had access to all funds generated by him and there seems to have been no formal demarcation in this regard.
The parties pooled their assets. No distinction was made in respect of Z’s status. Mr Lane loved him very much indeed and wanted the best for him. There can be no doubt that the parties’ marriage was one of equals and Z was an essential element of the family.
Although somewhat laissez-faire about money, Mr Lane has a good head for figures and has always had a strong grasp on his finances. As such, he is fully aware of what is the bottom line in terms of the financial circumstances of the parties, both historically and at the present time.
In my assessment, the wife does not have an equally strong grasp of these types of matters, although she appreciates the end of the parties' marriage must have significant financial implications for her, particularly in terms of the standard of living, which she previously enjoyed during the course of the parties’ marriage.
The husband presented as something of a martyr to what he regards as the wife’s excessive financial demands upon him. At present, Mr Lane shares his accommodation, in (omitted), with his brother. His brother apparently makes no financial contribution in respect of this arrangement. The husband, somewhat ruefully, described this act of generosity, on his part, as being “the story of my life”.
The husband approached this case on the basis that a line must be drawn in the sand in terms of the financial relationship between him and the wife. He presents as a person who has always been reasonable and generous, in respect of financial matters with the wife, but who now needs to emphasise to her that he does not have infinite resources of either money or patience.
To some degree, his application to recoup twenty percent of the proceeds of sale of the Property B property is emblematic of his attitude to the wife. More emblematic is his concession, made in cross-examination, that his application to reduce the wife’s spousal maintenance award from $600.00 to $500.00 per week would have no practical implications for him but was a matter of principle.
The wife elected to give her evidence without the assistance of an interpreter. She acquitted herself well, but it is clear that she is far from competent in the technical legal English used in the court room. Like the husband, she seemed to be a pleasant person, who was gradually adjusting to her changed circumstances.
She presented as a phlegmatic person, who did not have an unreal appreciation of either her current circumstances or inflated expectations. In this context, I accepted her evidence that she realises it will be necessary for her to obtain, if at all possible, some form of employment for herself.
Ms Lane conceded that she had not applied for any jobs, since the parties separated, in mid-2011. A situation which she attributed to “the mess in my head”. Her current aspirations in life are to have a life “without stress” and enough money to purchase a house for herself and Y.
As previously indicated, Ms Lane is currently undertaking a (studies omitted) course in (course omitted). The course takes three months to complete and requires its participants to undertake 108 hours of unpaid work experience. This course can be converted to a diploma course, which would take between eighteen months and two years to complete.
The wife is undertaking her work experience at the (employer omitted). It is her evidence that she enjoys (omitted) work and would like to undertake the diploma course. She also enjoys working at the (employer omitted) and hopes her work experience may lead to an offer of permanent employment there. She has been trained in (omitted), (omitted) and (omitted).
Prior to this course, the wife undertook a course to see if she would be suited to a career in the (occupation omitted). Her evidence, which I accept, is that she found the terminology of the course very hard. She passed two subjects but failed two others. In all these circumstances, I accept that the wife’s employment prospects are somewhat limited but not entirely closed.
Each party filed a comprehensive trial affidavit[4] as well as comprehensive statements of their respective financial circumstances.[5] As a consequence, this is not a case concerned with any issue regarding incomplete financial disclosure.
[4] Wife’s trial affidavit filed 12 November 2014; husband’s trial affidavit filed 2 December 2014
[5] Wife’s financial statement filed 12 November 2014 and husband’s financial statement filed 2 December 2014
The wife’s current financial position is not complex. Her average weekly income amounts to $1,236.50. This is made up of child support; spousal maintenance of $600.00; and government benefits totalling $366.50.
The wife has in her possession a (omitted) motor vehicle. It is her evidence, which I accept, that the vehicle needs urgent mechanical repairs to the gearbox, which will cost approximately $8,000.00. Ms Lane has been advised that the repairs are not worth doing. In these circumstances, she has borrowed a motor vehicle from a friend.
It is Ms Lane’s evidence that her current level of expenditure exceeds her income by about $170.00 per week. Her major expenses being food ($400.00); utilities ($200.00); entertainment ($100.00); clothing ($100.00); motor vehicle expenses ($160.00); and children’s activities ($100.00).
The husband quibbles with these expenses, some of which he regards as high. However, he is not in a position to unequivocally refute them on the basis of any statistical analysis. It seems probable to me that many of the expenses are provided on the basis of rough estimates made by the wife and she has tended to over rather than under estimate her expenses. However, when challenged about her gas bill, she was able to produce an account in corroboration of her evidence.
The fact remains that both the wife and Y are accustomed to leading a lifestyle where little regard need be had for the minutiae of household budgetary decisions. Theirs has been a comfortable, high income household, which has enjoyed a good standard of living, in an affluent Adelaide suburb.
In all these circumstances, the wife remains dependent upon the award of spousal maintenance, made in her favour, to fund her household and is likely to remain so dependent until she has found some form of employment for herself.
The court’s prognostication in this regard and, more particularly whether it is has before it sufficient evidence to engage in such an exercise, is a central issue in the case and, for obvious reasons impacts on any determination concerning the duration of the spousal maintenance award to be made in the wife’s favour.
The husband estimates his gross personal income as being $8,791.00 per week, which equates to a salary of $457,132.00 per annum. However, like the wife, it is his evidence that his expenses currently exceed his income by about $700.00 per week. In this context, both parties agree that it is unworkable for them to retain the Property B property, which is significantly encumbered by debt.
The husband operates his (business omitted) as a sole trader. The major source of income is fees generated from the (business omitted) at (omitted). However, he also does work at (omitted), for the (employer omitted). Fees derived from the (omitted) work are charged to a family trust controlled by Mr Lane – the Lane Family Trust.
Fees charged by the Trust amount to approximately $50,000.00 per annum. Modest sums are distributed to each of the children, each year, via the trust. Currently the trust account holds the sum of $23,397.00.
Accordingly, I find that the husband’s income is approximately $500,000.00 per annum. I accept that this income is hard earned, as (omitted) is a remote (omitted) community and the husband works long hours and, due to his family situation, is required to commute regularly between (omitted) and Adelaide.
(employer omitted), which operates the (omitted), at (omitted), is anxious to ensure that there is a continuing (business omitted) in the community. The company has a high regard for Mr Lane and, as a consequence, (employer omitted) have continued to offer him incentives to remain operating his (business omitted) at (omitted).
These incentives include the provision of free accommodation in (omitted); provision of a motor vehicle; and the payment of his weekly return air travel to and from Adelaide. Although it comes at a considerable personal price to him, Mr Lane’s employment situation is to be regarded as a lucrative one, whilst he remains at (omitted).
There is no evidence available to me to ascertain what his situation would be if he left (omitted) and started to (work omitted) elsewhere other than that, in general terms, he is a proficient (occupation omitted) with over twenty years’ experience. On any view his employment prospects are infinitely superior to those of the wife.
I find that Mr Lane’s major weekly expenses are as follows:[6]
[6] These expenses are largely taken from his statement of financial circumstances but include the payment to his mother, which was not included in this statement

Income tax

$3,461.00

Rent (omitted) Adelaide

$750.00

Contributions to superannuation

$400.00

Mortgage on Property B property [7]

$1,590.00

Child support

$355.00

Spousal maintenance

$600.00

Payment to Ms Lane senior

$800.00

Total

$7,956.00

[7] This sum is derived from the husband’s financial statement. In this document, there is no specific reference to the mortgage on the Property G property. In his oral evidence, the husband indicated that his total monthly mortgage payments amounted to a figure of around $7,000.00. On this basis I assume, I hope not erroneously, that this figure also includes the Property G mortgage payment.

Mr Lane estimates his other general living expenses as being somewhere in the vicinity of $2,000.00 per week. The major component of these expenses is school fees for X, who attends (omitted) College ($417.00); but otherwise his level of expenditure appears to me to be modest and reasonable.
In my view, there is no evidence to support a finding that Mr Lane enjoys a superior standard of living at the expense of his wife. To the contrary, there is considerable evidence to support his assertion that he puts the needs of his family, including the wife, before his own needs, in the difficult circumstances, which have prevailed since the parties’ traumatic separation.
As previously indicated, independent valuations have been conducted in respect of the Property B and Property G properties and the contents thereof, as well as the husband’s (business omitted). In terms of the (business omitted), the parties agree that the most equitable means to value it is by reference to its plant and equipment, which are valued at an agreed figure of $20,000.00. [8]
[8] See husband’s statement of financial circumstances filed 2 December 2014 at item 41. The husband’s solicitor arranged for the husband’s (business omitted) to be valued by a firm of chartered accountants, (omitted). See affidavit of Ms C filed 20 June 2014. Mr Lane reported to the accountants concerned his view that the plant and equipment was likely to cost $40,000.00 to replace but had a current value considerably less. This, I take it, is the basis of the agreed figure. (omitted) were also of the view, that given the circumstances of the (business omitted) and the centrality of Mr Lane to it, any goodwill relating to the (business omitted) had no commercial value.

It is agreed that the Property B property is worth $2.1 million and the Property G property is worth $375,000.00. In terms of the latter property, this is significantly less than its purchase price. The fall in value is attributable to the decision of (employer omitted) to postpone the extension of the (omitted) project. The amount currently owing on the Property G property remains at $475,000.00.
The husband’s evidence, which is not challenged by the wife, is that a 1.5% commission would be charged on the sale of the Property B property. In addition, in order to obtain the best price, Mr Lane has been advised to take out premium advertising at a cost of around $20,000.00. Accordingly, it is anticipated that the selling costs of Property B will be around $50,000.00.
The evidence before the court consists of the trial affidavit of each of the parties; their statements of financial circumstances; their oral evidence; and the various agreed valuations. In addition, a small number of documents were tendered into evidence.[9] It is on the basis of this evidence that the court makes its findings and reaches its conclusions.
[9] The most significant of these documents was the financial statement for the Lane Superannuation Fund and the husband’s last tax return.
In these reasons for judgment, findings of fact are made on the balance of probabilities, following my observations of the witnesses concerned and a consideration of the various documents delineated above. In what follows, statements of fact represent findings of fact.

Chronology

The husband was born on (omitted) 1969. He completed his (omitted) qualifications in 1992. The wife was born on (omitted) 1972. She currently has no qualifications relevant to these proceedings.
Ms Lane first came to Australia, in 1999, on a tourist visa. Z arrived the following year, with the consent of his biological father, which was provided on the condition that he would have no further financial responsibility for the child. Since that time, Mr Lane has assumed a moral obligation to support Z. The two remain extremely close.
When the parties began their relationship in Australia, neither had any assets of significant value. The wife had renounced her interest in an apartment in (country omitted), to her former partner, in order to obtain his agreement to Z relocating to Australia. Mr Lane had enjoyed a (omitted) career up to that point and had no savings to speak of. There were expenses related to the wife and Z coming to Australia.
In 2000, the husband was working in a (employer omitted) in suburban Adelaide. The wife began to take English lessons. The parties lived in rented accommodation. Z attended primary school and quickly picked up English.
Later that year, the husband obtained a position at (employer omitted). This involved him working at both the (employer omitted) and the (employer omitted). He worked conventional hours, but was on-call 24 hours a day, 7 days a week. I accept his evidence that he worked extremely hard during this period, because he had effectively two jobs. The motivation for the family moving to (omitted) was to clear debt and make money quickly.
In 2002, the parties had saved enough money to purchase the Property B property with, in the husband’s words “a decent deposit”. The property was rented out, whilst the family continued to live in (omitted).
The wife had some part-time work, as a (omitted), in Adelaide, between September 2002 and August of 2004. She worked a few days a month. Otherwise, she was responsible for home duties and the care of Z and X.
It was whilst the family was living in (omitted) that the wife was diagnosed with Graves’ disease. In 2007, she underwent radio-iodine therapy. Thereafter her thyroid gland was rendered non-functioning and it has been necessary for her to take thyroid hormone tablets thereafter. No expert medical evidence has been provided in respect of any potential ramifications of this treatment.
In 2004, the (employer omitted) closed. As a consequence, the husband’s income and career prospects declined. He began to consider other career options, which included opening a (business omitted) in the (location omitted) of South Australia. However, when (employer omitted) (the corporate predecessor to (employer omitted)) discovered that the husband was relocating from (omitted), the company offered him incentives to open a (business omitted) in (omitted).
As a consequence, the family moved to (omitted) in mid-2004. By this time, the wife had acquired competent English. In these circumstances, it made good sense, to both her and the husband, that she should manage the (business omitted).
It is the husband’s evidence, which I accept, that she was properly remunerated for her work, which was paid into her own personal bank account to use as she wished. For reasons already provided, I reject the wife’s contention that her income, during this period, was ear-marked for Z’s boarding school fees, although I accept that it is probable that some of these moneys were utilised for his benefit.
Y was born whilst the family was living in (omitted). The wife did not take any maternity leave but brought Y to work with her. It is the wife’s evidence that the husband was heavily engaged in the (business omitted) and her thyroid condition had worsened. In these circumstances, she asserts she became depressed.
The husband’s view is that the wife’s behaviour changed markedly following the death of her father and her return to (country omitted) for his funeral. In addition, it is his understanding that the wife was violently assaulted, whilst in (country omitted) at this time, a matter about which he learned many years after it had occurred.
I have no wish to traverse these delicate and private matters other than to say that I have no doubt that 2007 was an extremely difficult and traumatic year for the family and the ramifications of this year continued for an extended period of time thereafter.
It was against this background, again as previously indicated, that the parties decided to separate and then reconcile, on the basis that the wife and children would live in the Property B property, whilst the husband would continue to work in (omitted) and commute to Adelaide as often as he could.
The husband has many criticisms of the wife’s conduct, both before and after she moved away from (omitted). These criticisms are delineated in his trial affidavit and provide the basis for his original application that both X and Y would have been better off living predominantly with him. These issues were not explored during the course of the trial itself. For obvious reasons, they are sensitive issues.
It is the husband’s positon that the parties living arrangements, in (omitted) were “hectic”. In this context, he asserts that he discharged more of his fair share of parenting tasks, as well as working hard in the (business omitted), which provided the preponderance of the family’s financial support. He also complains that the wife did not discharge her work commitments appropriately as his (business omitted) manager.
After 2008, it is the husband’s position that the wife only “ostensibly” cared for the children during the week and left their care entirely to him on weekends, when he would also catch up on necessary housework. The implication arising from his use of the word ostensibly being that the court should not place great significant on the wife’s homemaking and parenting contributions.
In this context, he is critical that the wife neglected the children’s extra-mural and school activities. It is his case that the wife’s parenting and homemaking was, at times, severely compromised by her use of alcohol. In these circumstances, he contracted his own father to drive the children to and from their various activities and Z provided a safety net for the younger children’s care.
The wife does not accept these assertions. It is her position that she discharged most of the family and homemaking responsibilities, whilst the family was living both in (omitted) and (omitted), notwithstanding her various health issues. She does, however, tacitly acknowledge that she had issues with alcohol from time to time. In her affidavit she deposes as follows:
“I have some health issues but I am feeling more positive now. There was a period of time I drank too much as a coping mechanism but I have addressed that and it is no longer an issue. I expect that when the trial is resolved I will feel better again.”[10]
[10] See wife’s trail affidavit filed 20 November 2014 at paragraph 90
Her position in respect of the situation after she and the children had moved to Adelaide is succinctly put in her affidavit material as follows:
“… I cared for the children and ran the household on my own for approximately three years. I admit that Mr Lane helped to care for and entertain the children on the weekends.”[11]
[11] Ibid at paragraph 68
These are difficult issues to resolve definitively in the medium of the current proceedings. It is invariably the case, in vigorously contested proceedings such as these, that the parties concerned have diametrically opposing views regarding how their various homemaking and parenting contributions are to be assessed.
These controversies cannot be resolved arithmetically, through some notional process of totting up of tasks done or allocation of time spent with children, in contrast to disputes regarding direct financial contributions, which are more amenable to such arithmetical calculation.
The wife concedes that she was depressed in the period 2007/2008 largely due to her thyroid condition. As such, she could not face the prospect of returning to (omitted). After the parties reconciled, the husband does not seem to have been insensitive to the wife’s fragile circumstances.
Z was to have been called to support the husband’s position, in respect of issues regarding the competency of the wife’s parenting and homemaking. He is highly critical of his mother, but his evidence has not been tested through any process of cross-examination.
In my view, what the evidence indicates is that the husband remained integral to the physical well-being of the family and discharged a reasonable component of household responsibilities notwithstanding the fact that he was absent from the home for the majority of the week.
It is also the case that the husband was content, perhaps reluctantly, to leave the discharge of household and parenting responsibilities in the hands of the wife for the majority of the time. She may not have discharged these duties as efficiently as the husband would have liked, but they were discharged.
In this sense, neither party can be described as being a passenger or non-contributor in respect of parenting and homemaking duties. However, given the stresses in the parties’ relationship post 2007, their relationship with one another was frequently turbulent and no doubt this had implications for what occurred in their domestic context.
What is also clear is that during the post 2008 period, the husband continued to work hard in his (business omitted) and keep the family in comfortable financial circumstances. During this period, the wife enjoyed a high standard of living and had complete access to the husband’s income. I accept that the following portion, from the husband’s trial affidavit, reflects the parties financial relationship with one another:
“From May 1999 until our separation in June 2011 Ms Lane had unrestricted use of bank accounts including the joint account and linked credit cards. Whilst we would argue about money as she would spend excessively on clothes, shoes and other personal items for herself, there was no particular budget.”[12]
[12] See husband’s affidavit filed 2 December 2014 at paragraph 64
The dwelling on the Property B property was demolished in 2011 and a loan facility was taken out to construct a new home on the land. The amount borrowed was $1.12 million. Initially, the loan was interest only but from July 2013 onwards, both principle and interest have been payable requiring the husband to find an extra $2,500.00 per month to service the loan. The amount currently owed in respect of both the building loan and the original home loan total $1,529,553.00.
The husband has a modest amount of superannuation, with Super (omitted), which he presumably accrued whilst in the (omitted) sector. The relevant amount is agreed at $23,342.70. He also owns a small parcel of (omitted) shares currently agreed to be worth $2,203.00.
More significantly, in early 2010, the husband created a self-managed superannuation fund. The husband and the wife are the only members of the fund. As at 30 June 2014, the relevant members’ statements indicate the wife had accrued superannuation to the value of $39,823.00; whilst the husband had accrued $204,818.00.[13]
[13] See exhibit Lane Superannuation Fund financial statements ended 30 June 2014
The parties have undertaken the depressing task of having the contents of their respective homes at Property B and Property G valued. It is agreed the wife will retain the contents of the Property B property, the agreed value of which is $14,110.00. The husband will retain the contents of Property G, which are valued at $2,875.00. He will also retain some personal items of art work, which are agreed to be worth $4,000.00.
The parties each own a motor vehicle. In the wife’s case, it is the currently immobile (omitted). The vehicle has not been formally valued. The wife’s position is that the vehicle is worthless. The husband believes a more realistic value is somewhere in the vicinity of $8,000.00. In the absence of more specific evidence, I do not believe that it would be fair to include this vehicle in specific terms in any calculation of the parties’ pool of marital assets.
The husband utilises a four wheel drive motor vehicle, provided to him by (employer omitted), whilst he is at (omitted). In addition, he owns a Holden Commodore vehicle, which he asserts is worth $2,000.00. Given the uncertainty about the value of the wife’s motor vehicle, and the modest value of the husband’s motor vehicle, I do not intend to refer to the latter vehicle either, in any specific sense, in the calculation of the pool of property.
Prior to the commencement of the trial, the value of the wife’s jewellery was a bone of contention. The wife’s evidence is that she sold a significant number of jewellery items, for the sum of $13,000.00, to pay her previous solicitor. Her remaining items of jewellery have been valued at an agreed value of $1,000.00.
Accordingly, for the purpose of these proceedings, the wife’s jewellery is to be valued at $14,000.00. However, notwithstanding this finding, it needs to be emphasised that the vast majority of the items of jewellery itself are no-longer available to the wife. This factor must be relevant to how the court approaches the issue of the jewellery, particularly whether the items sold should be notionally added-back into the parties’ pool of assets as calculated by the court.
The husband’s day to day financial arrangements are fluid. He has credit cards with a combined debt of $13,613.00, as at the date of his financial statement. He operates a personal cheque account, which was $1,324.86 in credit and a savings account holding $10,609.86, at the same date. I will include the savings but do not believe it would be appropriate to include the monies standing in the cheque account.
The (business omitted) has a business account currently $52,073.33 in credit but as at 1 December 2014, Mr Lane owed $53,485.00 in unpaid income tax for the last financial year. These sums, in my view, cancel each other out and, as such, are not directly relevant to the current deliberations.
The husband has disclosed that he operates three personal credit cards, which are currently carrying a total debt of $13,613.00.[14] It would seem probable that a significant proportion of this debt relates to daily living expenses incurred after the parties’ separated and indeed may include legal fees paid by the husband. In all these circumstances, I do not propose to include it in the parties’ pool of assets on the basis that I do not think that it would be fair to do so.
[14] See husband’s statement of financial circumstances filed 2 December 2014 at item 31
The wife has three personal bank accounts, which hold a collective amount of about $300.00. She does not have any credit card debts. Accordingly, her financial affairs are simple. She lives day by day and is cautious about incurring debt. The sums of money which regularly come into her hands are modest, when compared to those accruing to the husband and are quickly consumed.
It is clear, I think, from this analysis of the property interests of the parties, the focus of the case must be upon on two major issues: firstly, given the discrepancy in recurrent income between the parties, what form should any award of spousal maintenance take; secondly, how are the proceeds of sale of the Property B property to be divided and what adjustments should be made to the parties’ respective superannuation holdings.
In this context, I must be careful not to artificially inflate or deflate any pool of property, which I must calculate for the purpose of exercise of the discretion arising under section 79(4) of the Family Law Act 1975, given that the court, within acceptable parameters of doubt, is aware what the proceeds of sale of the Property B property will be. The exercise I must undertake is not an accounting or arithmetical one, it is one based in principles of equity.

The Legal Principles Applicable

Part VIII of the Family Law Act 1975 is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a court is to make an order altering marital property interests. It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.
Paragraphs (a); (b); and (c); categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the court to take into account the effect of any order upon the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the court to consider a list of matters contained in section 75(2), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.
Finally, Paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled, as it required the application of a preferred approach. This approach entailed a four step process, described by the Full Court as follows:
· identification and valuation of the property of the parties;
· identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 79(4) (a) to (c);
· identification and assessment of the various matters in section 79(4)(d) to (g) including to the extent they are relevant, the matters in section 75(2) – the prospective needs phase;
· considerations of justice and equity.[15]
[15] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]

The general applicability of this four step process has been recast, to some extent, in the light of what has been said recently by the High Court in the matter of Stanford v Stanford.[16] In the case, the majority stated that:
“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 the 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.
The expression "just and equitable" 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.” [17]
[16] Stanford v Stanford [2012] HCA 52
[17] Ibid at [35] – [36]
In Stanton the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of section 79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. The majority said 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 the 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 section 79(4).” [18]
[18] Ibid at [42]
In Bevan the Full Court noted that the above paragraph was likely to encapsulate the vast majority of cases coming before courts, such as this one, namely that the circumstances of the parties concerned, following the end of the marriage between them, made it readily apparent that it was just and equitable to make a property order and therefore it would be open to the court concerned to adopt the multi-stepped process endorsed by cases such as Hickey.
In Bevan the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:
“Although the High Court did not disapprove the four step process, we accept it did not approve it either... However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.
…
Stanford will also serve as a reminder that the four step process ‘merely illuminates the path to the ultimate result’.”[19]
[19] See Bevan (supra) at [65] and [71]
From this, I take it, the four step process remains a valid approach in the vast majority of cases, provided care is taken not to overlook the requirement that all orders altering property interests in proceedings arising under the Act be justice and equitable.
In this case, the marital relationship between the parties has clearly come to an end. They agree that their major jointly owned asset, the Property B property, must be sold and the proceeds distributed between them in some way. Accordingly, it is clearly in accordance with notions of justice and equity that the court proceeds to make orders pursuant to section 79 of the Act, in respect of the parties’ various proprietorial interests.
Accordingly, it seems to me that the multi-step process envisaged by Hickey remains relevant but is less prescribed as a consequence of what was said by the High Court in Stanford. In this context, I respectfully adopted was said by Murphy J in Watson & Ling namely:
“As a result of those matters, the Court’s approach to s 79/s 90SM may be less compartmentalised than what a strict or unthinking adherence to four (or three) “steps” might otherwise reveal. The task is essentially holistic; is it just and equitable in the particular circumstances of the particular relationship or marriage under consideration to make an order and, if so, its terms must similarly meet that criteria. Of course, holistic though the approach is, it must be referenced to what the Act requires and care must be taken to ensure that the Court’s reasons make that clear.”
As was discussed by the Full Court in Bevan, whether it is just and equitable to make any particular property order is invariably inextricably interwoven with questions of contribution arising under section 79(4) and the parties’ financial and relationship history with one another.
Although the court must be careful not to combine issues arising under section 79(2) with the exercise arising under section 79(4), it is artificial to divorce them from each other. Section 79(2) does not, however, represent a formal threshold to be crossed prior to the undertaking of the section 79(4) exercise.
Rather, the overall task is a holistic one, to be informed by the idiosyncratic circumstances of each case concerned. However, in most cases, it will be readily apparent that it is just and equitable to make an order altering the property interests of the parties concerned because of their circumstances or the manner in which each has presented their case and the orders sought.
So it is in this case. Both the husband and the wife wish to sell their former family home; they further agree that it is appropriate that the wife’s holdings in the self-managed superannuation fund need to be rolled over into another fund.
The wife agrees that she has no legal interest in the Property G property, but the husband’s case recognises that his ownership of the property is relevant to this case, as is the debt encumbered upon it. It is both proper and equitable, in these circumstances that the court makes some form of order altering property interests.
What is contentious is the exact form those orders should take. This controversy will be resolved by the application of the considerations contained in section 79(4) to the evidence in the case.
Contributions arising pursuant to section 79(4)(a)(b) & (c) (the so-called second step) can be broadly categorised under two headings. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[21]
[21] See Family Law Act s79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution, which is inherently less valuable or important than a financial contribution to property.
Section 79(4)(e) mandates the court to have reference to the matters listed in section 75(2) of the Family Law Act 1975. In the main the factors there listed deal with each of the parties’ prospective needs (the so-called third step).
Pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. A number of Full Court authorities have utilised this provision to ensure that proper regard is had to a variety of considerations in order to ensure a just and equitable outcome in property proceedings.
These considerations have included voluntary contributions (as opposed to those mandated by legal obligation) made by one spouse in respect of the financial support of the child or children of the other spouse concerned.[22] In this case, the husband places particular emphasis on his financial support of the wife’s biological child, Z, although he concedes that he has always treated Z as his own child.
[22] See Robb & Robb(1995) FLC 92-555 at page 81,547
In addition, under the rubric provided by section 75(2)(o), the court is provided with a discretion to deal with property, which it is convenient to describe as being notional in nature, in the sense that the property in question no longer exists.
Such property usually is confined to one of three categories – money spent in paying legal fees, which unfairly diminishes the matrimonial asset pool;[23] the premature distribution of matrimonial assets;[24] and money or assets wasted through reckless conduct.^[25]
[23] See In the Marriage of DJM and JLM (1998) 23 Fam LR 396
[24] See In the Marriage of Townsend (1994) 18 Fam LR 505
[25] See In the Marriage of Kowaliw (1981) FLC 91-092 at 76,644
In the current case, there is some controversy regarding how the court should approach the issue of legal fees, which in the husband’s case have largely been paid, but in the wife’s case remain largely outstanding, other than those acquitted by the sale of her jewellery to the value of $13,000.00.
Should the jewellery disposed of by the wife be notionally added back into the parties’ pool of joint assets? Should a sum calculated by reference to the wife’s outstanding liability for legal fees be added as a joint liability of the parties? What regard should be had to the fact that the husband has been able to defray his legal fees during the running of the case, whilst the wife has not had that opportunity?
In Watson & Ling Murphy J said as follows:
“Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have be significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.
How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SF(3)(r)) (see, for example, AJO & GRO (2005) FLC 93-218, Browne & Green (1999) FLC 92-873 and Cerini). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
The assessment of the circumstance under discussion is, ultimately, a matter of discretion (see, for example, Cerini at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be “the exception rather than the rule” (Cerini at [46]) that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, NHC & RCH (2004) FLC 93-204) will require further consideration in an appropriate case.
Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; again the circumstances of the individual relationship must be assessed.” [26]
[26] Watson & Ling (supra) at [33] – [34]
It has been held to be appropriate to notionally “add back”, into a pool of matrimonial property, sums referrable to the payment of legal fees where it is demonstrated that matrimonial assets have been utilised to pay one or both parties’ legal fees, thus diminishing the pool of assets available to be distributed between them and so creating a situation where the normal rule whereby each party should bear his or her own costs is defeated.[27]
[27] See In the Marriage of DJM and JLM (1998) 23 Fam LR 396
The rationale for such an add back has been described as being to avoid unfairness to one party, if the other party has “unfettered or almost unfettered access to funds that would otherwise be included in the ‘pool’ to (amongst other things) further his or her own side of the case or counter or damage the other party’s case.” [28]
[28] See Rushton & Rushton [2011] FMCAfam 1259 per Walters FM (as he then was) at [104]
In NHC & RCH[29] the Full Court said as follows in respect of the issue of adding back legal fees:
“This decision appears to confirm the principle that where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to add back those costs as a notional asset. It also confirms the principle that where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. The decision also supports the proposition that where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account.
In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.”
[29] NHC & RCH (2004) FLC 93-204 at 79,322-3
There is no automatic rule as to how the court is to approach legal fees, under the discretionary exercise arising under section 79, other than the discretion is to be utilised according to principles of justice and equity. It also appears to be the case that the court must be careful to avoid approaching such issues in a purely mechanical or arithmetical manner. A strict add back, dollar for dollar, being the exception rather than the rule.
The husband has not utilised marital capital to pay his legal fees. These fees have been paid from income generated by him post separation. As such, in my view, it would not be equitable for the sums paid by the husband, in this regard, to be notionally added back.
The wife’s legal fees remain largely outstanding as she has not any source of income of sufficient moment to pay such expenditure. In the context of the parties’ current level of asset backing, her legal fees must be regarded as significant.
As such, significant weight must be given to the submission of her counsel, Mr Jordan that the court needs to factor into its deliberations her outstanding liability for legal fees, in the sense that it will remain a significant and unescapable liability on the part of the wife. In my view, the most appropriate mechanism for this to be done is provided by section 75(2)(o).
There remains the issue of the disposal of the wife’s jewellery. In technical terms, the sale of the jewellery to pay legal fees is to be regarded as a premature distribution of marital assets. There is no suggestion, in the evidence available to me, that the items in question were sold at a discount.
In the overall context of the case, the sum of $13,000.00, although a reasonable amount of money, is not a significant sum. More importantly, as with the monies spent by the husband on his legal fees, the money has been expended. In all these circumstances, it does not appear to be fair for it to be attributed, in exact arithmetic terms, as a benefit retained by the wife.
Apart from the potential proceeds of sale of the Property B property, the parties’ most significant financial resource is their accrued superannuation. As has been previously indicated, the parties have very different views as to how the superannuation should be approached by the court – the wife favouring equalisation; the husband favouring the parties each retaining their current level of entitlements.
Pursuant to section 90MC of the Family Law Act, superannuation interests are to be treated as property. As such, they attract the provisions of section 79(4) of the Act.
In C & C[30], the Full Court of the Family Court has described superannuation as a different “species of asset” from other forms of property.
[30] C & C (2005) FLC93-220
This is because superannuation, particularly in its accumulation phase, cannot be easily translated into cash, unlike other more “conventional” assets, such as land and personal property, and so its value accurately determined by sale.
Superannuation is a form of compulsory saving for retirement. As such, it must be preserved until its crystallisation on the occurrence of some specified event, usually permanent retirement from the workforce.
In C & C, the majority of the full court of the Family Court held as follows:
“In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.
In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.”[31]
[31] See C & C (supra) at 79,646

Inevitably, these responsibilities will impact on the number of hours of paid work, per week, the wife can take on. They may affect her prospect of promotion. Such responsibilities must also have implications for the flexibility of her employment arrangements and so must impact upon her financial bottom-line.
The future for Ms Lane is of being a single parent on, at best, a low income, which is augmented by social security. Her work, as a (omitted), (omitted) or (omitted) is likely to be part-time and insecure in nature. On any view, her prospect for the future are far from assured, in marked contrast to the husband.
Notwithstanding the husband’s responsibilities for X and the fact that he will continue to provide a significant level of financial support for Y, in my view, the factors arising under the sub-section also favour the wife.
Paragraphs (d) & (e) – the end of the marriage has been a financial disaster for each of the parties. The husband has had to duplicate accommodation for himself and make arrangements for the housing of X. It is his evidence that his expenses currently exceed his income but, with the sale of the Property B property, his financial pressures will ease.
Apart from his children, he has no legal obligation to support any other person. However, from his perspective, the husband has a moral responsibility to assist Z financially from time to time. Z is a university student. Mr Lane has assisted him with expenses related to overseas studies and holidays. He is likely to continue to do so in future.
There was some controversy regarding the current reasonableness of the wife’s level of personal expenditure. Her expenses also exceed her income. Apart from Y, she has no responsibility to support any other person. Whether her expenses will reduce, once she moves out of the Property B home, is a difficult issue to resolve. It seems to me that factors relating to expediency will dictate that they must.
Paragraph (f) – both parties are many years from retirement. As such, in theoretical terms, both have some time in which to make financial provision for their old age. However, in this regard, the husband clearly has more scope to make superannuation contributions to ensure himself a comfortable retirement. The wife’s prospects, in retirement are not nearly as assured. Again, this is a factor favouring the wife.
The wife is likely to receive various forms of income support, from the Commonwealth Government over the period of the foreseeable future. These payments fall within the purview of section 75 (3) of the Act, which directs the court to disregard any entitlement of a party to the proceedings to an income tested pension, allowance or benefit.
Paragraph (g) – as previously indicated, it is almost inevitable that the end of a long marriage will inaugurate a period of financial austerity for each of the parties concerned. After all two households cannot live as cheaply as one.
The circumstances of the parties in this case are idiosyncratic. They have been largely living in separate households for many years as a consequence of the husband’s comfortable income and the location of his employment. However, both now agree that it is financially untenable that this situation continue. Essentially, it is inequitable, from the husband’s perspective that he continue to service a $1.5m mortgage in respect of a property in which he does not live.
With the sale of the Property B property, the wife will pass into a state of flux so far as her accommodation is concerned. She will leave what the husband described as his dream home, complete with swimming pool, tennis court, air conditioning and well-appointed kitchen, in an affluent suburb, for uncertain accommodation.
Ms Lane’s preference is to buy some form of accommodation for herself and Y. How much that is likely to cost and what are her prospect of obtaining finance have not been examined in these proceedings. In general terms, without significant collateral and a stable employment record, her prospects do not appear to be particularly rosy. As such, the possibility that Ms Lane will have to obtain rental accommodation appears quite high.
On the other hand, Mr Lane is a professional person, who has a demonstrated capacity to earn a high income. He has shown that he can service a significant level of mortgage. With the sale of the Property B property, he will have available to him a significant stream of income, which he can divert to either the payment of rent or toward a mortgage. His situation guarantees him a level of flexibility and choice not likely to be available to the wife.
The import of this paragraph is to ensure that the financial privations arising at the end of a marriage do not fall disproportionately or unfairly on one party more than the other. Up to this stage, the wife has enjoyed a comfortable middle class life in a large well-appointed home. The husband is likely to continue to enjoy such a high standard of living. The same cannot be guaranteed for the wife, whose financial future is beset with some level of uncertainty.
At the end of these considerations, it is clear to me that the husband is far better placed to put the financial vicissitudes arising from the end of the marriage behind far quicker than is the wife. It far more likely that any financial problems he encounters will be a blip. The same cannot be said for the wife.
The purpose of these proceedings is not to equalise the parties’ financial situation but divide assets and resources according to both contributions and considerations of what is equitable in all the circumstances. It would not be fair for one spouse to live in penury, whilst the other is in luxury, particularly after a marriage of reasonable length. Ms Lane has an entitlement to an adequate standard of living. The marked disparity in the standard of living, which the parties are likely to enjoy in future, is a factor which favours the wife.
Paragraphs (h) (j) (k) & (l) – Ms Lane is currently undergoing a comparatively short course of education, involving work experience, which she hopes will equip her for a position in (omitted). If she goes on to complete the certificate course, her prospects of secure employment are likely to be enhanced.
This is a factor which militates in favour of their being an award of an on-going stream of maintenance, which is correlated to the time Ms Lane is likely to be studying. It is Mr Lane’s preference that there be a time limit set out his obligation to pay maintenance in such a form. The other benefit of such an approach is that it will provide some form of financial buffer, for Ms Lane, as she adjusts to her changed circumstances.
Mr Lane had his qualification prior to meeting the wife. Apart from the fact that she is now some sixteen years older, in my view, it cannot be said that the duration of the marriage, per se, has affected Ms Lane’s earning capacity. For the larger proportion of the marriage, Ms Lane has been a stay at home parent. These are not significant factors.
Paragraphs (ha) (m) (naa) (p) & (q) – these paragraphs are not relevant to this particular case.
Paragraph (n) – as a consequence of these proceedings the wife will receive an award of marital capital, once the former family home is liquidated. One of the complexities of this case is that, although Mr Lane has enjoyed a high wage, this has not translated into a significant level of asset backing for the parties.
The sale of the Property B property is likely to raise around $520,000.00. It will leave the husband with the Property G property, in which he has a negative equity. Half a million dollars is not an insignificant sum, but it is unlikely to provide a sufficient sum to accommodate both parties, in the manner of their preference, without recourse to some level of borrowing.
The husband is likely to have relatively easy access to finance. The wife’s access is likely to be more problematic, depending, obviously, upon the amount she wishes to borrow, which will in turn depend on the outcome of these proceedings. As previously indicated, it is her position that she should receive all of the proceeds of sale of the Property B property in order to maximise her prospects of being able to purchase some form of alternate accommodation for herself.
From the husband’s perspective, this would be fundamentally unfair to him, depriving him of a share of the most accessible of the parties’ sources of marital capital, to the acquisition of which he has undoubtedly made very significant and multifarious contributions.
In my view, one of the more challenging aspects of this case is how the wife’s undoubted need for a significant award of capital, from the parties’ jointly acquired property, is to be balanced against her other significant need, which is to continue receiving some form of income support from the husband, given her employment circumstances.
It is the husband’s position is that it would be potential unfair to him for the court not to closely consider the interaction of these two considerations and overlook his entitlements, based on contribution, merely because he is a high income earner and the wife is not.
At the end of the day, it will be necessary for the court to consider what the appropriate mix of orders to be made, in the wife’s favour, is. The mix will need to make reference to superannuation; the award of capital assets; and an on-going stream of maintenance, including considerations of its duration. Fundamentally, how the court arrives at the balance or mix of orders must depend on considerations of justice and equity.
For obvious reasons, the parties are focussed more on the proceeds of sale of the Property B property than on the division of superannuation. Neither of them is at a stage of life, when considerations surrounding retirement are pressing.
Superannuation will not advance the wife’s prospects of obtaining a loan or obtaining a home, which she can afford. However, it may be unfair to the husband to award him a proportionately large share of superannuation, when he too has a need for immediate capital.
Informing these considerations is the undeniable fact that the husband, over the remaining course of his working life, is likely to accumulate far more wealth than the wife, unless some unforeseen catastrophe engulfs him. Does this fact, of itself, justify the wife receiving all or the vast majority of the parties’ accumulated wealth, notwithstanding that the husband’s activities were the engine which generated that wealth in the first place?
As the Full court said in Dickson[45]:
“…Whilst it may, as a matter of individual circumstance, be correct to say that the mere existence of disparity of wealth ought not of itself justify a settlement of property to one party at the expense of the other, it may often, in the overall circumstances of a case, call for further adjustment beyond that assessed on contributions alone, so that the final order is just and equitable. …”
[45] Dickson (1999) FLC 92-843
In my view, the future prospects of the parties dictate that there should be a further award of marital property, in the wife’s favour, beyond that to which she would have been entitled by virtue of her contributions alone. The question arising is what form such a distribution should take, given the current level of discrepancy in the parties’ superannuation holdings and each party’s desire to retain at least some (in the husband’s case) or all (in the wife’s case) of the liquid assets of the marriage.
The question of what factors should apply to the determination of what percentage of actual assets and what percentage of superannuation assets each party should receive, in proceedings such as these, was considered by Moore J in L & L.[46] Her Honour considered that the relevant factors were as follows:
·the purchase price of appropriate accommodation and re-housing costs for both parties;
·the need for a financial buffer for ordinary exigencies of independent living;
·the current level of the parties’ superannuation;
·the probability that the wife would be able to acquire appropriate superannuation benefits from her own future income;
·the husband’s substantial earning capacity and ability to borrow significant sums at favourable rates (from his employer).
[46] L & L [2003] FamCA 40
These factors are relevant in the current case. I accept that the wife aspires to having a sufficient sum of money available to her to enable her to purchase a home. Her capacity to borrow is likely to be much more constrained than the husband’s is. The wife has prospects of gathering further superannuation in future, but these prospects cannot be regarded as rosy. Both parties are likely to need some cash to cover exigencies, but given her more precarious financial position, this need is far more pronounced in the case of the wife.
Paragraph (na) – as previously indicated, the wife’s responsibility to parent Y will place a heavy financial burden on her shoulders. She, of course, will not bear this burden alone, as Mr Lane will be assessed to pay child support for Y. The evidence indicates that Mr Lane will be reliable in his payment of child support and will not conduct his affairs in such a way as to avoid his liability.
As he is a high income earner and his income is readily ascertainable from his taxation returns, the amount of child support, which he will be assessed to pay for Y will be significant. In Clauson & Clauson[47] the Full Court said as follows:
“The weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future.”
[47] Clauson & Clauson (1995) FLC92-595 at 81,911
It seems to me that Mr Lane will continue to pay an adequate and regular amount of child support, for Y, for the indefinite future. Accordingly, the factors arising under this sub-section are not significant in this case.
Paragraph (o) - in Ferguson & Ferguson [48] the Full Court of the Family Court held that section 75(2)(o) was to be read ejusdem generis with the other matters listed in the section 75(2) which enabled the court to bring into account “conduct which has an economic significance in the parties’ dealing with each other or the property in dispute.”
[48] See Ferguson & Ferguson (1978) FLC 90-500 at 77,607
As previously discussed, there are several issues arising in the case, which hold economic significance for the parties now, as a consequence of their past conduct towards one another. Considerations of justice and equity require that they be taken into account in some way.
Firstly, over many years, up unto the present time, the husband has provided financial support for Z. In strictly legal terms it could be argued that he had no obligation to support Z, who is not his biological off-spring. What was the position, so far as issues surroundings the child’s financial support, when he arrived in this country, as a seven year old, vis-à-vis the Department of Immigration, is not an issue which has been explored in these proceedings.
However, it would appear to be self-apparent that, in 2000, Ms Lane was not capable of supporting the child and, given her immigration status, was not automatically entitled to social security. Whether, in these circumstances, Mr Lane undertook to the Australian Government that he provide support for his soon to be wife and her child is unclear to me.
However, regardless of this issue, it is clear that Mr Lane, to his abiding credit, has always considered that he has a moral obligation to support Z, whom he treats as his own child. In these circumstances, it is both artificial and mildly distasteful that these proceedings should differentiate between how contributions in respect of Z, on the one hand and X and Y, on the other, should be approached.
The artificiality is heightened by the fact that Z’s natural father agreed to Z emigrating to Australia on the condition that he have no further financial obligations towards Z and, to all intents and purposes, it was likely to have been impossible for Ms Lane to pursue him for any form of child maintenance in (country omitted).
Be that as it may, whether as a result of a moral obligation or otherwise, Mr Lane must have allocated many thousands of dollars towards the care of Z. Without doubt he was happy to do so and did not keep any running ledger of what was spent. In return he and Z have a deep affection for one another.
The Full Court discussed the application of section 75(2 (o) to the provision of financial support to step-children in a case, which is now almost twenty years old, Robb & Robb[49] and said as follows:
“In considering whether the justice of a case requires some act done by a party to be taken into account under s. 75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children’s father, to so maintain them: ss. 66A and 66B of the Act.
The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s. 66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the chid by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those preconditions existed in this case.
Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband’s contribution to be taken into account under s. 75(2)(o), the same cannot be said of the wife’s contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
Turning, then, to ordinary notions of justice and equity, we are of the view that such notions do not call for any allowance to be made in the wife’s favour, in the property proceedings between the husband and wife, because she honoured her legal obligation to maintain her own children of a prior marriage. We believe that a failure to make such an allowance would not offend the ordinary reasonable man or woman’s notions of justice.”
[49] Robb and Robb (1995) FLC 92-555 at 81,547
Mr Lane did volunteer to provide financial support for Z. He did so because he loved Z’s mother and wanted her to come and live in Australia with him. She could not leave Z behind in (country omitted). Mr Lane also had a high regard for Z himself and did not regard it as a burden that he support him.
In all these circumstances, I do not consider that ordinary notions of justice and equity require Mr Lane’s obviously significant contributions made towards Z’s welfare and support need to be given additional significance in these proceedings because of the lack of biological relationship between the two.
The remaining issue concerns the significant amount outstanding in respect of the wife’s legal fees. This amount will have to be paid and the only source of the funds can be the monies to be received by the wife from her sale of the Property B property. In these circumstances, the court must be cautious about the potential for the effect of any lump sum payment, made her favour, to be diminished because it will eaten away by legal costs.

Similarly, I must give account to the fact that the wife, in theoretical terms, has diminished the marital pool of assets by the sale of her jewellery to fund, at least in part, her side of the litigation. On the other hand, the husband, by dint of his superior income, has been able to pay his legal fees as he has gone along.
In my view, the issues arising from these considerations cannot be resolved in an arithmetical fashion. Rather I will take them into account, in a general sense, when I consider the application of all the various section 75(2) factors to this case.
Similar considerations relate to the husband’s various credit card debts. I accept that at the end of these proceedings the husband finds himself in somewhat straightened financial circumstances. He has many calls on his income, including the costs of maintaining his rented premises in (omitted) and supporting X. He too will have legal fees to pay relating to this trial.
However, Mr Lane will be able to discharge his various debts far more easily than will the wife, not least because, with the sale of the Property B property, he will have significantly more income available. At this stage, he will be able to give attention to what form of accommodation he wishes to maintain permanently in Adelaide for himself and X and the extent of the sum he may wishes to borrow in order to provide it.
I also bear in mind, under this general consideration, that the husband will retain the Property G property. He needs this property to continue his (business omitted). However, at present the monies secured against the property are greater than its estimated value.

Conclusions on section 75(2) factors

After considering the various factors arising under section 75(2) I have come to the conclusion that a further adjustment, in favour of the wife, is warranted, in respect of how the parties’ actual property is to be divided. In my view, this adjustment should be a significant one given the vast disparity in the parties’ prospects. In my view, it should be in the range of about 30%.
Whilst concentrating on issues relevant to the distribution of the proceeds of sale of the Property B property, the wife has proposed that the parties’ respective holdings of superannuation be equalised. Given the weighting of the various section 75(2) factors in her favour, I agree that this represents a just and equitable outcome.
In my view, it would not be fair if the wife left the marriage with an amount of superannuation which will provide her with little security in her retirement, given the length of the marriage between the parties and the husband’s current and continuing position of financial assurance. But neither would it be fair to deprive the husband of a reasonable amount of security in the form of superannuation.

Section 79(4) (d) (f) & (g)

These provisions are not relevant to the court’s determination in this matter. The matters which fall within their purview have been considered within the court’s consideration of the various other criteria arising under section 79(4).

Step 4

Form of property orders

As was observed by Coleman J, there comes a point when the court must leap from words to figures or from abstractions to what is concrete. After all, it all well and good to talk in percentages, so far as orders and outcomes are concerned. But what matters to the parties is what the orders mean to them in dollars and cents and what affect they have on their long term plans and aspirations.
This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned. It will also envisage what is the overall mix of assets and superannuation, given the respective situations of each of the parties concerned.
Mr Lane will retain assets in the form of the Property G property; his (business omitted) equipment; the trust; his shares, artwork and furniture; and motor vehicle; to a value of $440,008.86. However, this figure is misleading because when the mortgage relating to Property G is factored in, his liabilities exceed his assets by -$24,915.14.
In my view, it would be inequitable, after a relationship and marriage in excess of sixteen years, given the extent of his contributions that the husband retains only debt, notwithstanding his capacity to derive an income of $500,000.00 per annum.
Notwithstanding the wife’s great need for capital, considerations of fairness dictate that the husband receive some modicum of what capital is available from the sale of the Property B property. Currently, putting aside the issue of selling costs, the potential equity in the home is around $570,393.00.
80% of this sum is represented by the figure of $456,314.40 and 20% by the figure of $114,078.60. In addition, the wife has in her possession other chattels to the modest value of $15,110.00. If the selling costs are as high as anticipated by Mr Lane, the net proceeds are likely to be around $50,000.00 less than the sum as calculated.
Accordingly, after payment of her anticipated legal costs and the selling costs, the wife will have available to her a sum of around $350,000.00. Such a sum may not be sufficient to purchase a home outright but should provide a great deal of equity and so some mark of financial security for the wife. It will also give her access to funds to cover unforeseen exigencies, particularly whilst she completes her anticipated training in (occupation omitted).
The husband will have a far smaller sum of cash available to him but I anticipate enough to give him some financial flexibility to manage his debt level and, if he wishes to borrow a sum of money to re-house himself in Adelaide. However, the most significant factor, in this case, remains Mr Lane’s capacity to earn around $500,000.00 per annum. This alone means that he leaves the proceedings with a very significant level of financial security and flexibility.
It seems to me to be appropriate that I make a splitting order in respect of the parties’ self-managed superannuation fund so that in dollar terms the parties leave the marriage with approximately equal amounts of superannuation. The wife will be able to roll her funds into the fund of her choice.
In strictly arithmetical terms, the sum required to be allocated to the wife to achieve such equalisation, bearing in mind the other holdings of the parties, is a sum of $94,168.85. I will round this down to $90,000.00.
Thereafter, she will accrue superannuation at a much slower rate than the husband, but such a measure will give her some financial security in her retirement. After stepping back, I consider that this outcome represents a just and equitable one, in all the circumstances, for each of the parties.

Considerations relating to on-going spousal maintenance

As I have already observed, the reality of the wife’s current financial situation is that she relies on the receipt of a regular sum of spousal maintenance, from the husband, to keep her household afloat. Without this sum, it is apparent that she would not be able to make ends meet. This has been the situation since the parties separated in 2011 and reflects the situation that historically they have kept separate households, at least during the week, and the husband has had the means to fund this arrangement.
In all these circumstances, the husband concedes that there must continue to be a payment of spousal maintenance made by him to the wife. However, he would want a limit placed on his obligation to pay such a sum to the wife to assist her to adjust to her altered circumstances and support her as she transitions to a position in the paid workforce.
Firstly, pursuant to section 72(1) I am satisfied that the evidence available to me establishes that the wife is currently unable to support herself adequately because of her lack of formal qualifications and experience in the Australian workforce and because she has the care of Y.
Given this situation and the fact that Mr Lane clearly has the capacity to pay the wife a sum of spousal maintenance and has done so in the past, I consider it both reasonable and proper that there be a further award of spousal maintenance made, following the conclusion of these proceedings.
However, I consider that the wife has some nascent capacity for self-support, particularly if she finishes her more advanced (course omitted) course. I have already listed the various section 75(2) factors, which are germane to the wife’s situation.
In the context of an on-going award of maintenance, her current lack of employment skills and responsibility for Y are clearly relevant, as is the disparity in income earning capacity between the parties. In addition, I must consider what is a reasonable standard of living, for Ms Lane, in all the circumstances of the case.
As previously indicated, with the sale of the Property B home, Ms Lane will move from a very comfortable house, in an affluent suburb, to an uncertain accommodation situation. She has enjoyed financial security, whilst Mr Lane has been employed in (omitted). Necessarily, she must go through a process of adjustment with the finalisation of these proceedings. The issue for the court is how rapid and how steep that process of adjustment should be.
The finalisation of the property aspect of these proceedings sees the wife receiving a significant sum of money. She need not earmark this sum to provide day to day financial support for herself. As I understand it, her preference is to use the sum to purchase some form of accommodation for herself and Y. However, given the settlement sum has been calculated by reference to maintenance factors, its quantum does have relevance to what is a reasonable award of on-going financial support.
In my view, in all the circumstances of the case, it is proper that Mr Lane continue to provide spousal maintenance to Ms Lane at the current rate of $600.00 per week until 31 July 2018. This will enable Ms Lane to maintain her current standard of living, whilst she attains further qualifications and makes the adjustment to self-support, over the period of the next three to four years.
It will also allow, at some defined point in the future, for the financial relationship between the parties, apart from issues to do with child support, to come to an end. The award is a significant sum of money but will not provide the wife with a luxurious lifestyle, but it will be one above mere subsistence. Importantly, it will give her some breathing space to make the transition to the workforce, which she acknowledges must come.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and sixty-two (362) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 4 February 2015

[20] Watson & Ling [2013] FamCA 57 at [13]

[2015] FCCA 173

4 February 2015

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Costs

Income tax	$3,461.00
Rent (omitted) Adelaide	$750.00
Contributions to superannuation	$400.00
Mortgage on Property B property [7]	$1,590.00
Child support	$355.00
Spousal maintenance	$600.00
Payment to Ms Lane senior	$800.00
Total	$7,956.00