LINNANE & BRIDGE

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINNANE & BRIDGE

[2014] FCCA 2572

Catchwords:
FAMILY LAW – Property – contributions – where the husband has made significantly greater financial contributions – future needs – where the wife has greater future needs – where the wife is qualified and is completing her (qualifications omitted) but her ability to obtain employment is uncertain – spouse maintenance – reasonableness of expenses.

Legislation:

Family Law Act 1975, ss.72, 74, 75, 79, 80, 81

Aleksovski & Aleksovski (1996) FLC 92-705
Bevan & Bevan [2013] FamCAFC 116
CCD v AGMD (2007) 36 Fam LR 356
NHC & RCH (2004) FLC 93-204
C & C (2005) FLC 93-220
Collins & Collins (1990) FLC 92-149
Dickson & Dickson (1999) FLC 92-843
DJM & JLM (1998) FLC 92-816
D & D (2006) FLC 93-256
Evans & Evans (1978) FLC 90-435
G & G (1984) FLC 91-582
HDM & MM & SJM [2006] FamCA 47
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
In the marriage of Bevan (1995) FLC 92-600
In the Marriage of Clauson (1995) FLC 92-595
Kowaliw & Kowaliw (1981) FLC 91-092
M & M (2006) FLC 93-281
N & N (1997) FLC 92-782
Norbis & Norbis (1986) 161 CLR 513
Parshen & Parshen (1996) FLC 92-720
Pierce & Pierce (1999) FLC 92-844
Quinn & Quinn (1979) FLC 90-677
Re Chemaisse; Federal Commissioner of Taxation (Intervener)(1990) FLC 92-133
Russell & Russell (1999) FLC 92-877
Sippel & Sippel [2004] FamCA 201
Stanford v Stanford [2012] HCA 52
Stiller & Power [2011] FMCAfam 996
Telford & Telford [2012] FamCA 995
Tomasetti & Tomasetti (2000) FLC 93-023
Townsend & Townsend (1995) FLC 92-569
Waters & Jurek (1995) FLC 92-635
W & W (2005) FLC 93-222

Applicant:

MR LINNANE

Respondent:

MS BRIDGE

File Number:

CRC 31 of 2013

Judgment of:

Judge Kemp

Hearing dates:

1 & 2 October 2014

Place of hearing:

Coffs Harbour

Date of Last Submission:

2 October 2014

Delivered at:

Sydney

Delivered on:

7 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr J Priestley SC on a direct brief basis

Counsel for the Respondent:

Ms Ryan on a direct brief basis

THE COURT ORDERS THAT:

By consent, the husband transfer to the wife all his right title and interest in and to the property known as Property E in the State of Queensland (“the Property E property”) by 31 March 2015.
Simultaneously with the transfer referred to in order 1, the parties refinance the mortgages (numbered (omitted), (omitted) and (omitted)) held jointly by the parties in relation to the Property E property into the wife’s sole name.
By consent, simultaneously with the transfer referred to in order 1, the wife transfer to the husband all her right title and interest in and to the property known as Property J in the State of Queensland (“the Property J property”).
By consent, simultaneously with the transfers referred to in orders 1 and 3, the husband refinance the debt in relation to the Property J property (loan account numbers (omitted), (omitted) and (omitted)) into his own name.
By consent, simultaneously with the transfer referred to in order 1, the wife transfer to the husband all her right title and interest in and to the property known as Property V in the State of Queensland (“the Property V property”).
By consent, simultaneously with the transfers referred to in orders 1 and 5, the husband refinance the debt in relation to the Property V property (loan account number (omitted)) into his own name.
By consent, simultaneously with the transfer referred to in order 1, the wife transfer to the husband all her right title and interest in and to the property known as Property K1, Property K2 in the State of New South Wales (“the Property K1 & K2 property”).
By consent, simultaneously with the transfers referred to in orders 1 and 7, the husband refinance the debt in relation to the Property K1 & K2 property (loan account numbers (omitted) and (omitted)) into his own name.
By consent, in the event of non-compliance with any of orders 1 to 8 inclusive above, then in respect of the property or properties in relation to which there has been non-compliance, then that property or properties must be listed for sale within 14 days of the non-compliance with an agreed real estate agent and failing agreement with two agents one nominated by each party at a price to be agreed within 14 days of the non-compliance and failing agreement at a price to be determined by (omitted) with the cost of such valuation to be borne equally by the parties with instructions for such valuation to be given within 21 days of the non-compliance, with the legal work to be carried out by a conveyancer or solicitor of the choosing of the party intended to receive that property and to disburse the proceeds of sale in the following manner and priority:
(a)payment of legal fees, agent’s commission and fees;
(b)payment of any outstanding mortgage;
(c)payment to the husband for any payments made by him in satisfaction of the obligations of the wife, in excess of those made pursuant to order 10 below; and
(d)the balance to be paid to the party intended to receive that property as shown in orders 1 to 8 inclusive above.
The husband pay all outgoings in relation to the Property E property until 31 March 2015 and indemnify the wife in relation to the following items including but not limited to all mortgage payments (loans numbered (omitted), (omitted) and (omitted)), rates, insurances, taxes and outgoings including arrears relating to that property, but only for the period ending 31 March 2015.
By consent, the husband continue to pay all outgoings in relation to the Property J property, the Property V property and the Property K1 & K2 property and indemnify and continue to keep indemnified the wife in relation to the following items, including but not limited to all mortgage payments (loans numbered (omitted), (omitted), (omitted), (omitted), (omitted) and (omitted)), rates, insurances, taxes and outgoings including arrears relating to those properties.
By consent, simultaneously with the transfer referred to in order 1, the husband as a director of (business omitted) (“(business omitted)”) transfer to the wife the Toyota (omitted) motor vehicle registered number (omitted).
By consent, simultaneously with the transfer referred to in order 1, the wife resign from any position she may hold, and transfer any share or shares held in (business omitted) to the husband, which company and its assets will then become the sole asset of the husband.
By consent, the husband will indemnify and keep indemnified the wife in relation to any liability of any kind in relation to (business omitted).
By consent, the wife do all such acts and things and sign all necessary documents to transfer to the husband all of her right title and interest in the joint bank accounts with (omitted) Bank (numbered (omitted), (omitted) and the (omitted) account (omitted)) or to close those accounts and pay all proceeds to the husband or as he may direct.
By consent, the wife send to the husband his birth certificate, citizenship certificate and his past tax returns which are presently in her possession.
By consent, the parties as between each other, be declared to have the sole right title and interest in:
(a)Any chattels (save for 2 pieces of artwork and a water cooler in the husband’s possession to be made available for the wife’s collection), goods, furnishings, motor vehicles and other property which are, at the date of these orders, in their possession respectively; and
(b)Any moneys, shares, debentures, superannuation and life insurance policies which stand in their sole name respectively at the date hereof.
By consent, each party release and indemnify the other from any liability held in their sole name respectively at the date of these orders.
By consent, the husband and the wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.
By consent, in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Federal Circuit Court is appointed pursuant to Section 106A of the Family Law Act (“the Act”) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
The Court allocates:
(a)As required by s.90MT(4) of the Act, a base amount of $69,290.00 to the wife out of the husband’s interest in (omitted) Super Fund accumulation account number (omitted).
(b)That in accordance with s.90MT(1)(a) of the Act:
(i)The wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation, 2001; and
(ii)The entitlement of the husband in (omitted) Super (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interests) is correspondingly reduced by force of this order.
(c)That the trustee of (omitted) Super (“the Trustee”) will do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife in the immediately preceding clause of this order; and
(ii)Pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in (omitted) Super.
(d)That this order has effect from the operative time and the operative time is 4 business days after the Trustee is notified of the making of this order.
(e)That this order binds the Trustee and its successors.
The husband, in addition to meeting the outgoings in relation to the Property E property pursuant to order 10 above, pay the wife by way of maintenance, the following:
(a)The sum of $350.00 per week up until 31 March 2015.
(b)As and from 1 April 2015, the sum of $500.00 per week up until 30 September 2015; and
(c)As and from 1 October 2015, the sum of $350.00 per week up until 31 March 2016.
If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
The matter is, otherwise, removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 31 of 2013

MR LINNANE

Applicant

And

MS BRIDGE

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the husband for property orders.
The applicant husband seeks orders, as set out in his Amended Initiating application filed 7 March 2014 and as updated by a Minute of proposed orders, being set out in Exhibits “Court 2” and “Court 3”, as follows:
(1)That the husband transfer to the wife all his right title and interest in and to the property known as Property E in the State of Queensland (“the Property E property”) by 31 March 2015.
(2)That simultaneously with the transfer referred to in order 1, both parties must refinance the mortgages (numbered (omitted), (omitted) and (omitted)) held jointly by the parties in relation to the Property E property into the wife’s sole name.
(3)That simultaneously with the transfer referred to in order 1, the wife transfer to the husband all her right title and interest in and to the property known as Property J, in the State of Queensland (“the Property J property”).
(4)That simultaneously with the transfers referred to in orders 1 [and 3], the husband must refinance the debt in relation to the Property J property (loan account numbers (omitted), (omitted) and (omitted)) into his own name.
(5)That simultaneously with the transfer referred to in order 1, the wife transfer to the husband all her right title and interest in and to the property known as Property V in the State of Queensland (“the Property V property”).
(6)That simultaneously with the transfers referred to in orders 1 [and 5] the husband must refinance the debt in relation to the Property V property (loan account number (omitted)) into his own name.
(7)That simultaneously with the transfer referred to in order 1, the wife transfer to the husband all her right title and interest in and to the property known as Property K1 & Property K2 in the State of New South Wales (“the Property K1 & K2 property”).
(8)That simultaneously with the transfers referred to in orders 1 [and 7] the husband must refinance the debt in relation to the Property K1 & K2 property (loan account numbers (omitted) and (omitted)) into his own name.
(9)That in the event of non-compliance with any of orders 1 to 8 inclusive above, then in respect of the property or properties in relation to which there has been non-compliance, then that property or properties must be listed for sale within 14 days of the non-compliance with an agreed real estate agent and failing agreement with two agents one nominated by each party at a price to be agreed within 14 days of the non-compliance and failing agreement at a price to be determined by (omitted) with the cost of such valuation to be borne equally by the parties with instructions for such valuation to be given within 21 days of the non-compliance, with the legal work to be carried out by a conveyancer or solicitor of the choosing of the party intended to receive that property and to disburse the proceeds of sale in the following manner and priority:
(a)payment of legal fees, agent’s commission and fees;
(b)payment of any outstanding mortgage;
(c)payment to the husband for any payments made by him in satisfaction of the obligations of the wife [in excess of those made – these words being inserted as a corollary to the amendment made in order 10 by the insertion of the date “until 31 March 2013”] pursuant to order 10 below; and
(d)the balance to be paid to the party intended to receive that property as shown in orders 1-8 inclusive above.
(10)The husband must pay all outgoings in relation to the Property E property until 31 March 2015 and indemnifies and will keep indemnified the wife in relation to the following items including but not limited to all mortgage payments (loans numbered (omitted), (omitted) and (omitted), rates, insurances, taxes and outgoings including arrears relating to that property, but only for the period ending 31 March 2015.
(11)The husband must continue to pay all outgoings in relation to the Property J property, the Property V property and the Property K1 & K2 property and indemnify and continue to keep indemnified the wife in relation to the following items including but not limited to all mortgage payments (loans numbered (omitted), (omitted), (omitted), (omitted), (omitted) and (omitted)), rates, insurances, taxes and outgoings including arrears relating to [those properties].
(12)That simultaneously with the transfer referred to in order 1, the husband as a director of (business omitted) (“(business omitted)”) must transfer to the wife the Toyota (omitted) motor vehicle registered number (omitted).
(13)That simultaneously with the transfer referred to in order 1, the wife must resign from any position she may hold, and transfer any share or shares held in (business omitted) to the husband, which company and its assets will then become the sole asset of the husband.
(14)That the husband will indemnify and keep indemnified the wife in relation to any liability of any kind in relation to (business omitted).
(15)That the wife must do all such acts and things and sign all necessary documents to transfer to the husband all of her right title and interest in the joint bank accounts with (omitted) Bank (numbered (omitted), (omitted) and the (omitted) account (omitted)) or to close those accounts and pay all proceeds to the husband or as he may direct
(16)That the wife send to the husband his birth certificates, citizenship certificate and his past tax returns which are present in her possession.
(17)That the parties as between each other be declared to have the sole right title and interest in:
(a)Any chattels, goods, furnishings, motor vehicles and other property which are, at the date of these orders, in their possession respectively; and
(b)Any moneys, shares, debentures, superannuation and life insurance policies which stand in their sole name respectively at the date hereof.
(18)That each party release and indemnify the other from any liability held in their sole name respectively at the date of these orders.
(19)That the husband and the wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.
(20)That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Federal Circuit Court is appointed pursuant to Section 106A of the Family Law Act to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
(21)In the event that the Court determines that an order for spousal maintenance ought be made, then, pursuant to s.77A of the Act, the following orders are made:
(a)Order 1 is an order to which s.77A of the Act, applies.
(b)The portion of the property the subject of order 1 that is attributable to the provision of maintenance of the wife is so much thereof as equates to 6% of the net value of all the property of the parties, being an amount of $45,000.00.
(22)In the event that the Court determines that there should be an order for a superannuation split, then the following order is to be made:
(a)That the Court allocates, as required by s.90MT(4) of the Act, a base amount of a sum of $BLANK (initially notified to the trustee of (omitted) Super [“the Trustee”] as $55,000.00) to the wife out of the husband’s interest in (omitted) Super accumulation account number (omitted).
(b)That in accordance with s.90MT(1)(a) of the Act:
(i)The wife (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation, 2001; and
(ii)The entitlement of the husband in (omitted) Super (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s superannuation interests) is correspondingly reduced by force of this order.
(c)That the Trustee will do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife in the immediately preceding clause of this order; and
(ii)Pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in (omitted) Super.
(d)That this order has effect from the operative time and the operative time is 4 business days after the Trustee is notified of the making of this order.
(e)That this order binds the Trustee and its successors.

While the wife filed a Response on 7 May 2013 and provided an updated Minute of Order in her case outline document (being Exhibit “1”), during the course of the hearing she agreed to a number of orders, as sought by the husband. The orders that she consented to were orders 1, 3, 4, 5, 6, 7, 8, 9 (noting the Court’s addition of the words “in excess of those made” in sub paragraph (c)), 11, 12, 13, 14, 15, 16, 17 (save for 2 pieces of artwork and a water cooler in the husband’s possession to be made available for the wife’s collection), 18, 19, 20 as set out in paragraph 2 above. Those orders can be made by consent and to a large extent supersede many of the orders sought by the wife in her case outline document. The wife does not consent to orders 2 and 10 as sought by the husband given how those orders impact on the Property E property, in that she seeks a transfer of the Property E property into her sole name without any mortgage, requiring the husband to either pay out or refinance the mortgages secured over that property and to indemnify her in respect thereof. The wife, in addition, proposed a lump sum superannuation split of in the order of $30,000.00, together with a maintenance payment of $900.00 per week for 18 months or $1,300.00 per week for 12 months or a lump sum.
The husband relies, subject to all proper claims as to admissibility, and after formal objections were taken, on the following:
a)His Affidavit affirmed 27 February 2014 and filed on 28 February 2014;
b)His Statement of Financial Circumstances affirmed and filed on 27 August 2014.
The wife relies, subject to all proper claims as to admissibility, and after formal objections were taken, on the following:
a)Her Affidavit affirmed 17 March 2014 and filed on 21 March 2014;
b)Her Affidavit affirmed 19 March 2014 and filed on 21 March 2014;
c)Her Affidavit affirmed 15 August 2014 and filed on 28 August 2014;
d)Her Affidavit affirmed 16 September 2014 and filed on 17 September 2014;
e)Her Statement of Financial Circumstances affirmed 16 September 2014 and filed on 17 September 2014;
f)Affidavit of Ms A sworn and filed on 18 November 2013;
g)Affidavit of Ms B sworn/affirmed and filed on 18 March 2014;
h)Affidavit of Dr L sworn/affirmed 26 March 2014 and filed on 27 March 2014; and
i)Affidavit of Dr B sworn/affirmed on 28 March 2014 and filed on 1 April 2014.
j)Affidavit of Dr S sworn/affirmed and filed on 1 October 2014.
Only the husband and the wife were required for cross-examination and the balance of the affidavits referred to above were simply read.
The following documents were tendered as exhibits in the proceedings:

Exhibit No

Document

Tendered by

Court 1

Property and Liability document

Joint

Court 2

Minute of orders document prepared by the husband and reflective of the wife’s agreement

Joint

Court 3

Form of Order and letter from (omitted) Super dated 19 March 2014

Joint

A

Case outline of the husband

H

B

Income and Tax Records update by way of update to paragraphs 14, 15 and 16 of the husband’s affidavit

H

C

Schedule of expenses and payments by way of update to paragraph 32 to the husband’s affidavit

H

1

Case outline of the wife and initial proposed minute of order

W

Background facts

The following are the, largely, uncontested background facts:
a)The wife was born on (omitted) 1952 and at the time of hearing was 62 years of age.
b)The husband was born on (omitted) 1971 and at the time of hearing was 43 years of age.
c)The parties met in 2000, commenced cohabitation in about (omitted) 2001 in (omitted), Queensland and were married on (omitted) 2002.
d)There are no children of the marriage.
e)At the time the parties first met, the husband was aged 28 years and a (occupation omitted), earning approximately $89,000.00 per annum and working for (employer omitted) out of the (omitted). The husband was also a trainee in the (occupation omitted) of (omitted) training program. The husband had a car worth an estimated $10,000.00, superannuation of approximately $30,000.00, some (hobby omitted) gear, clothes and personal effects and a debt of approximately $10,000.00 arising from losses incurred in share market trading.
f)At the time the parties first met, the wife was aged 48 years and was a (occupation omitted), earning approximately $47,900.00 per annum. The wife had superannuation of approximately $30,000.00 and two real estate properties, one being a 5 acre property known as the “Property G property” with an outstanding mortgage debt of approximately $70,000.00 and the other being a property in the western suburbs of Brisbane known as the “Property I property”, which the wife said was fully secured with a mortgage debt equivalent to its value. The wife had a car or access to one as part of her employment and her own personal effects. The wife had a HECS debt of $9,000.00. Both the Property I property and the Property G property were leased out, with the Property I property rented to the wife’s daughter of an earlier marriage, X, who was then about 30 years of age, for an amount sufficient to meet the wife’s mortgage repayments and to cover rates and insurance on the said property.
g)In late 2001, the parties purchased a real estate property in the western suburbs of Brisbane at Property S, Queensland (“the Property S property”) which was acquired in the husband’s sole name and the parties then moved to live there from (omitted). The property was acquired by the husband, to take advantage of the first home owner’s stamp duty grant which would not have been available to the wife, as she already owned property.
h)In early 2002, the parties purchased an investment real estate property in Property N, Queensland (“the Property N property”).
i)In 2002, the wife gifted the Property I property to her daughter, X.
j)In about (omitted) 2002, after problems had developed in the wife’s relationship with her daughter, X, and prior to the parties’ marriage, the wife commenced proceedings in various courts in Queensland exercising family law jurisdiction, seeking orders to spend time with her daughter’s children, being her 3 grandchildren. The wife maintained that there had been a falling out between herself and her daughter as a result of her forming a relationship with the husband. These proceedings concluded in about 2004 with the wife being ultimately unsuccessful in obtaining any spend time orders with her grandchildren.
k)On 15 October 2002, the parties purchased the “Property V property” for approximately $150-160,000.00.
l)Between 2002 and June 2003, the husband worked as a (occupation omitted) for various (employers omitted) situated in the (omitted) suburbs of Brisbane.
m)Between 2002 and 2004, the wife was employed by (employer omitted) as a (occupation omitted) providing an (omitted) and also providing (omitted) services for (omitted) services.
n)In May 2003, the company (business omitted) (“(business omitted)”) was established with the husband as sole director and both parties as shareholders. (business omitted) was used as the husband’s (business omitted) entity through which he contracted out his services to various (employers omitted), utilising that company’s structure to split his income, so as to minimise tax.
o)In May 2003, the parties purchased two investment real estate properties in Tasmania, being the “Property P property” and the “Property C” property.
p)In June/July 2003, the parties purchased a real estate property in Property T, Queensland (“the Property T property”) and, thereafter, moved from the Property S property to the Property T property, with the Property S property then rented out.
q)In June/July 2003, the parties purchased two investment real estate properties in (omitted), Queensland, being the “Property O property” and the “Property A property”.
r)Between June and September 2003, the husband contracted his services as a (occupation omitted) to a (employer omitted) in (omitted), Queensland.
s)In August 2003, the wife sold the Property G property for approximately $165,000.00, receiving net proceeds in the order of just over $100,000.00. These monies were, substantially, used to purchase an air conditioner for the wife’s mother’s unit, a new stove for the wife’s father’s home and the balance was largely used to pay the wife’s legal costs in relation to the proceedings referred to in (j) above, then in the order of about $140,000.00. The wife maintained that the legal fees had been paid out of joint funds and the husband had requested reimbursement and that that was the basis for sale of the Property G property.
t)In September/October 2003, the parties purchased an investment property at Property B, Queensland (“the Property B property”) and sold the Property N property for approximately $249,000.00.
u)In late 2003, the parties purchased a property at Property M, Queensland (the “Property M property”).
v)In February 2004, the parties moved out of the Property T property and into the Property M property. The husband obtained employment as a (occupation omitted) in a (employer omitted) in (omitted), Queensland and also undertook some work for a (employer omitted) on the (omitted), Queensland.
w)In (omitted) 2004, the husband obtained employment as a (occupation omitted) in a (employer omitted) in the (omitted) suburbs of Brisbane (the “(employer omitted)”). The wife also undertook some part-time work as a (occupation omitted) at that (employer omitted).
x)In September 2004, the parties sold the Property O property.
y)In October 2004, the parties sold the Property A property.
z)In October/November 2004, the parties gifted $30,000.00 to the (company omitted) in recognition of the wife’s grandchildren, the subject of the litigation referred to in paragraph (j) above. The gift was provided for the restoration of a cottage at (omitted), being part of the early history of the wife’s family. The donation was provided in the husband’s name to maximise its tax deductibility for the parties.
aa)In 2005, the parties purchased the Property E property for approximately $450,000.00, being the property at which the wife currently resides.
bb)In early 2006, the parties sold the Property S property.
cc)In January 2006, the parties purchased the Property R property for approximately $530-535,000.00. This property consisted of 3 flats, which were, in turn, rented out.
dd)In about April 2006, after the tenant of the front flat on the Property R property vacated the premises, the parties commenced various renovations in order to establish a (business omitted) for the husband to operate out of that flat.
ee)In August 2006, the parties sold the Property B property.
ff)On 26 September 2006, the parties opened a (business omitted) called “(business omitted)”, which was operated out of flat 1 at the Property R property. The wife commenced working there, as did the husband, when he was not working at the (business omitted).
gg)In December 2006, the wife became a director of (business omitted).
hh)In May 2007, the parties sold the Property T property.
ii)In June 2007, the parties sold the Property C property.
jj)By the end of August 2007, the husband had ceased working at the (business omitted) and was working full-time at (business omitted).
kk)In 2007, the wife completed a (qualifications omitted) degree.
ll)In December 2007/January 2008, the parties sold (business omitted) and the husband entered into a contract to work as a (occupation omitted) for a (employer omitted) at the (omitted). The wife maintained that the sale price had included a bonus payment of $55,000.00 and the husband had informed her that they had done “very well” out of the sale. This enabled the husband to engage in work concentrating on (employment omitted) for which he had a particular interest. The husband’s current workload consists of (omitted) with approximately 55% (employment omitted) and 45% (employment omitted) issues. Flat 1 at the Property R property, formerly used as the husband’s (business omitted) was, thereafter, converted back to a residence and leased out.
mm)In early 2008, the wife commenced studying for her (qualifications omitted) full-time. This was, subsequently, effected through the University (omitted). Her proposed thesis is entitled “(omitted) of (omitted) in (omitted) with an (omitted)”.
nn)In about February 2008, the parties purchased the Property K1 & K2 property for approximately $600,000.00, which has two residences, being K1 (the main house) and K2 (the cottage) on the one certificate of title. The husband currently resides in K1.
oo)In June 2008, the parties relocated to (omitted) and the husband transferred his employment from the (employer omitted) to a (employer omitted) in (omitted). The wife sought to establish a (business omitted) and initiated the strata titling of the Property K1 & K2 property, which has still yet been completed.
pp)In December 2008, the parties sold the Property P property.
qq)In mid-2009, the wife returned to Queensland and moved into the front unit (Flat 1) at the Property R property.
rr)In July 2009, the parties sold the Property M property.
ss)In late 2009, the parties moved into the Property E property and rented out the Property K1 & K2 property. The husband returned to work at the (employer omitted).
tt)Between 2009 and 2010, the parties carried out certain renovations to the Property E property, expending in the order of $200,000.00. While those renovations were being completed the parties lived in one of the units at the Property R property.
uu)Between early 2010 and November 2010, the wife again engaged in legal proceedings seeking to spend time with her grandchildren, following the birth of a fourth child to her daughter. The wife expended approximately $50,000.00 on these proceedings and was ordered to pay the other party’s costs.
vv)In mid- to late-2010, the parties engaged contractors to convert the rear of the garage at the Property E property into a granny flat. These renovations cost in the order of $53,000.00. The flat constructed was rented out between March 2012 and December 2012 for approximately $190.00-200.00 per week. Since that date, the flat has remained unoccupied. The wife disputed that this accommodation could be leased out as a result of recent changes to the regulations which permit residential occupation. The wife maintained that the flat did not have separate facilities, including laundry facilities, asserting that the tenant had “buggered the washing machine” and, as such, it could not be rented out and that it was also only approved as a rumpus room by (omitted) Council. The wife referred to receiving a document from the relevant council in about July 2014 detailing this change. This document was called for by Mr Priestley SC but was not produced by the wife. Nevertheless, the wife’s evidence was that she had found the former tenant, as someone who was living in close proximity to her and was “intrusive” and that she had elected not to find a new tenant for that space, even if the zoning did permit such occupation.
ww)Between February and March 2011, the wife undertook disaster recovery work in (omitted), (omitted) and (omitted) following Cyclone Yasi and at (omitted) following the Brisbane floods.
xx)In early 2011, the (employer omitted) closed and the husband found alternative employment at (employers omitted) on the (omitted) and at (omitted), Queensland.
yy)In September 2011, the husband returned to live in (omitted) in the Property K property, while the wife remained at the Property E property. The husband commenced contracting his services through (business omitted) as a (occupation omitted) to a (employer omitted) conducted by the company, (business omitted) (“(omitted)”), where he continues to work. (business omitted)’s contract was for the provision of the husband’s services over 5 years, with a sign-on bonus of $180,000.00 paid to (business omitted) which was then paid out to the wife in two fully franked dividends over the financial years ending June 2012 and June 2013 in the sums of $63,000.00 paid on 6 October 2011 and 15 July 2012. Of the first payment, $37,218.00 was paid in reduction of the mortgages on the Property E property and the balance was paid into the parties’ (omitted) account. In respect of the second payment, $44,000.00 was paid into loan account (omitted) with the remaining $19,000.00 paid into the parties’ (omitted) account. The husband said that he had sourced accounting advice to effect the payments in, what he described as, a tax advantageous manner. The husband says separation occurred at around this time. At that time, the husband was living in (omitted) and the wife in Brisbane. The wife was unclear as to when she said separation occurred, maintaining that it was at some time “between June and September 2012”. The wife maintained that the parties still communicated and visited each other up until those dates. However, the Court accepts the husband’s evidence that from at least the end of September 2011, the parties were no longer holding themselves out as husband and wife and any meetings between them were largely effected to carry out certain improvement works to the various properties and to, otherwise, promote amicable relations. The wife conceded that, from September 2011, the husband had “moved on” from his relationship with her, with him taking a (hobby omitted) holiday to (country omitted) with his own friends in July 2012 without her. The wife also stated that it had become clear shortly thereafter that there was no prospect of reconciliation. Nevertheless, she said she may not have, herself, accepted the husband’s position at that time. In any event, little turns on the date of separation.
zz)In mid-late 2012, the parties engaged in discussions regarding property settlement.
aaa)On 30 January 2013, the wife transferred $20,000.00 from the parties’ joint “(omitted)” account to her personal (omitted) Bank account in her sole name and instructed the (omitted) Bank to require two signatures for any withdrawals/re-draws from the (omitted) account and two of the parties’ joint home loans (account numbers (omitted) and (omitted)).
bbb)On 14 February 2013, the husband cancelled the wife’s access to his (omitted) Bank credit card account.
ccc)On 25 February 2013, the husband commenced these proceedings.
ddd)On 25 February 2013, the parties authorised the transfer of $6,062.00 from the (omitted) account to pay the husband’s credit card account.
eee)On 24 April 2013, the parties authorised the transfer of a further $10,000.00 from the (omitted) account to the wife’s personal (omitted) Bank account.
fff)On 15 May 2013, Judge Altobelli ordered the husband pay the wife the sum of $822.00 per week by way of spousal maintenance from 22 May 2013 until 31 December 2013 and to pay for all mortgage, council and water rates for all jointly owned properties.
ggg)On 12 July 2013, the wife cashed in her (omitted) superannuation entitlements, receiving $108,209.76, which was then deposited into the wife’s personal (omitted) Bank.
hhh)On 14 and 15 July 2013, the wife withdrew sums totalling $24,231.74 from her (omitted) Bank account to pay legal fees and transferred the sum of $84,276.64 into a (omitted) Bank term deposit.
iii)On 1 October 2013, the wife filed an application for a protection order in Queensland under the Domestic and Family Violence Protection Act to prevent the husband from contacting her. A temporary protection order was made in her favour which was, subsequently, varied and extended on 22 October 2013. The matter was then listed for a contested hearing on 10 March 2014 when that Court made no other orders, but dismissed the temporary protection order.
jjj)On 25 November 2013, this Court, by consent, reduced the husband’s spousal maintenance sum of $822.00 per week to $350.00 per week. The Court also ordered the release of $3,850.00 to the husband from the parties’ (omitted) account for payment of the husband’s legal representation in respect of the domestic violence protection order proceedings between the parties. The husband, subsequently, re-deposited the sum of $1,650.00 to that account, in accordance with the orders of the Court.
kkk)On 10 December 2013, the wife withdrew $17,446.00 from her (omitted) Bank term deposit to pay legal fees.
lll)On 30 December 2013, the wife cashed in her (omitted) Super superannuation entitlements, receiving $447.14.
mmm)On 30 January 2014, the wife withdrew $2,000.00 from her (omitted) Bank term deposit to pay costs associated with attending her brother’s funeral in Melbourne and to meet her day-to-day living expenses.
nnn)On 11 February 2014, the wife withdrew $1,500.00 from her (omitted) Bank term deposit to pay day-to-day living expenses.
ooo)On 20 February 2014, the wife withdrew $3,000.00 from her (omitted) Bank term deposit to pay day-to-day living expenses.
ppp)On 7 March 2014, the wife withdrew $7,500.00 from her (omitted) Bank term deposit to pay day-to-day living expenses.
qqq)The husband has a partner, namely, Ms D, aged 41 years who, he says, has no income and minimal assets, apart from a small motor vehicle.

The Evidence

The husband

The husband’s evidence was not substantially challenged. The wife conceded that he had been solely responsible for preparing all of the parties’ corporate and personal accounting and tax documentation. This material, supported by appropriate documentation, was the basis of the husband’s evidence, which formed the basis of the largely uncontested facts referred to above. In his oral evidence, the husband, relevantly, conceded the efforts that the wife had made in developing the parties’ (business omitted) and to their joint efforts in acquiring and developing the properties currently making up their property portfolio. The husband disputed, however, any suggestion that he had put undue pressure on the wife to settle these proceedings and said he understood that the wife was focussing (and had been focussed for some time) on completing her (qualifications omitted) which was something that both parties had agreed that she could undertake when they were in a relationship together. The husband was of the view that it was not him who was insisting on property valuations but rather the wife and that when those valuations came in (at his expense) they were, in her opinion, too low for the properties he was to acquire and too high for her and, accordingly, they were not to her liking. In those circumstances, the settlement discussions stalled as the draft settlement orders were then less attractive to the wife, based on those valuations.
The husband agreed that his passions were (hobbies omitted).

The wife

The wife said that when she first met the husband all he had wanted to do was to earn sufficient money to indulge his passion for (hobby omitted) and that she had discovered that he had lost around $30,000.00 in share market trading. The husband conceded that he had such a debt but said that it was in the order of about $10,000.00, arising from such trading.
The wife, at the time of cohabitation, was working full-time as a (occupation omitted) in (omitted) and was also involved in providing an (omitted) service to (employer omitted). The wife said that while the husband lived in (omitted) and worked in (omitted), (omitted) and (omitted), he had experienced a number of difficulties in his workplace with senior (omitted) staff, junior staff, (omitted) workers and executive staff and that she had been able to mediate the resolution of those difficulties on the husband’s behalf. The wife also assisted him to resolve some workplace difficulties at a (employer omitted) on the (omitted) in early 2004 and at the (employer omitted). The husband conceded that she did do so.
The wife has also worked providing (omitted) services for (employer omitted) between 2002 and 2004.
The wife deposes to searching for real estate properties to acquire and being involved in their rental. She said that her searches for properties took into account the husband’s desire to pursue (hobby omitted) and the properties were sourced in close proximity to water for that purpose. The wife also asserted that she had felt “obliged” to be the “sensible” partner, responsible for managing their property transactions and focussing on the need to build assets for a financially stable future. She said that this left the husband free from such burdens to pursue his leisure activities outside his working hours. The wife, nevertheless, conceded that the husband was very actively involved in pursuing his work commitments.
The wife also conceded that the husband had an interest in doing all of the “figures” for the finances and accounting for the parties’ real estate purchases and sales, paying wages and preparing tax returns.
The wife conceded that the husband had assisted various contractors with the renovations to the Property E property, providing labour assistance and technical advice and admitted that he had done “a very good job due to his strong attention to detail and perfectionism”.
The wife said that she was intimately involved in the development of (business omitted) and the fit-out of its (business omitted) conducted from the Property R property. She said that while the husband continued to work at the (employer omitted), she attended at the (business omitted) to take appointments for the husband, developed procedure and policy manuals, undertook (omitted) training and computer software training and liaised with (omitted) over the phone and in person. She also undertook, as conceded by the husband, a small amount of private (omitted) work as a (occupation omitted).
The wife says that as each of the properties that were purchased by the parties for investment were sold, the net proceeds of sale were used to reduce indebtedness against existing loans which, in turn, had been obtained to acquire other real estate.
The wife maintained that both she and the husband had been involved in fostering children as “emergency” carers and that this role fell, predominantly, on her shoulders, given the husband’s work commitments. The husband conceded this, but asserted that the commitment was not extensive as the children fostered with them for relatively short periods of time (from days to a few weeks) and those occasions were, in any event, sporadic. He also stated that he did assist and took a role in that regard, which the Court accepts he did.
The wife says that after the parties moved to (omitted) in about June 2008, she was able to successfully develop a small (business omitted). This (business omitted), however, did not develop further when the wife returned to Queensland, in about mid-2009.
The wife maintained that, by about February/March 2011, she had begun her (studies omitted) “in earnest” with the University (omitted). Her ambition was to use her research and qualifications to obtain work conducting (duties omitted). However, the due dates for submission of her (qualifications omitted) thesis were extended from the end of 2011 to mid-2012; to the end of 2012; to March 2013; then to August 2013 and then to the end of 2013. Her thesis is yet to be submitted and the Court understands that the wife has received a further extension until the end of January 2015.
The wife maintained that following separation, the husband had actively pursued settlement discussions but that she felt that she was under some pressure due to his greater knowledge of the parties’ financial affairs and due to her being focussed on her studies. As she felt more pressured, she had then “shut down” negotiations which the husband, in turn, had interpreted as the wife being not genuine in seeking to finalise an agreement which, he understood, they had reached. The wife continued to delay the submission date of her (studies omitted) which negatively impacted further on negotiations between the parties. The wife stated that she felt she was not coping, was exhausted and felt under “siege”. The also wife asserted that the commencement of these proceedings had had a significant adverse effect on her emotional and mental health. Her mounting legal costs also, she said, contributed to her “diminished sense of well-being and hopelessness”. The wife, further, maintained that following the completion of her (studies omitted), she will need a holiday of at least 4-6 weeks to overcome her stress and anxiety, related to these proceedings.
The wife is most concerned about the health of her dog, (name omitted), who she says requires constant care and attention and suffers from a low grade heart disease. The wife deposed to spending some $2,210.33 for the treatment of (name omitted) in a 9 month period between May 2013 and February 2014.
The wife agreed that she has not worked in full-time paid employment since early 2002 and although she has undertaken some part-time work, including developing a (business omitted) when she was in (omitted), she has not regularly consulted with (omitted) since 2011. She said that even if she were not currently studying for her (qualifications omitted), she believed she would not be able to work as a (occupation omitted), due to her own “impaired” psychological/mental health. Given her understanding of the (omitted) code of ethics, the wife has conferred with both Dr L and her own treating psychologist, Dr B, in relation to these matters and their evidence is as set out below.
The wife deposes to seeking spousal maintenance for a period of two years. She says that the completion of her (studies omitted) is directly linked to her future employment potential. The wife initially sought $8,000.00 to enable her to pay for proof-reading, printing and binding of her thesis and to cover the purchase of a replacement computer. Her evidence on the hearing was that she had already purchased the computer. She then sought periodic payments of $1,056.75 per week for a period of 2 years. That sum was made up by the various expenses set out at paragraph 166 of her affidavit affirmed on 17 March 2014 (see paragraph 5(a) above).
The wife said that in late August 2014, she had been advised by the (omitted) Bank that there had been a fraudulent transaction on her account in which $4,900.00 had been removed (the “disputed bank transaction”) and the wife said that that matter was currently under investigation by the said bank and she anticipated having those monies refunded to her.

Ms A

Ms A is the wife’s friend.
The thrust of Ms A’s evidence related to an incident on 18 June 2013 when the wife contacted her in a distressed state. Ms A recounts a discussion that she had with the wife about the husband and his treatment of the wife including disconnecting her mobile phone, taking the cottage at K2 on the Property K property and the wife’s fears about her future, including “slipping into poverty and losing everything that she had worked for”.
Much of Ms A’s evidence was in the nature of hearsay and was of limited relevance, in any event.

Ms B

Ms B swore an affidavit on 18 March 2014 on behalf of the wife. Ms B is a Neuropsychologist. Ms B appears to have written her affidavit as a friend of the wife, rather than in her capacity as a Neuropsychologist.
The thrust of Ms B’s evidence related to the distress the wife experienced over this litigation and her feelings in relation to the behaviour of the husband.
Mr Priestley SC did not seek to cross-examine Ms B. Much of Ms B’s evidence is in the nature of hearsay and opinion. Limited weight can be given to her evidence, other than to accept that the wife has, at times, struggled to cope with this litigation. That is not a contentious issue and was obvious when the wife gave her evidence in cross-examination.

Dr L

Dr L is the wife’s general practitioner.
Dr L’s affidavit attaches a report dated 25 March 2014, prepared by him, at the request of the wife. The thrust of that report is that since February 2013, Dr L has been treating the wife for an “adjustment disorder with mixed anxiety and depressed mood secondary to divorce”. Dr L refers to what the wife has told him about the proceedings, including that the wife felt depressed, anxious, disempowered and harassed by the husband and having been the recipient of excessive communication from the husband. In Dr L’s report, he indicated that he understood that the wife would complete her (studies omitted) “this month” (being March 2014). Dr L opines that the wife’s prognosis is good and that she “will be able to resume employment as a (omitted) in the future”.
Notwithstanding Dr L’s view, Ms Ryan submitted that the wife would not be able to resume such employment.

Dr B

Dr B is the wife’s treating psychologist.
Dr B’s affidavit attaches a report dated 21 March 2014, prepared by her, at the request of the wife. Dr B also states that the wife has experienced “extreme emotional distress with associated depression and anxiety, reactive to divorce and property settlement proceedings”. Dr B refers to the wife being reactive to “extremely frequent communications” from the husband. Dr B also opines that the wife would be fit to resume (employment omitted) as a (occupation omitted) in “the next three to six months [that is, in the period June to September 2014], if her emotional wellbeing continues to improve… if the protection order remains in place, and/or her ex-husband refrains from his previous behaviour which is considered to have constituted emotional and financial harassment/abuse”.

Dr S

Dr S swore an affidavit on 1 October 2014 (the date of the hearing) on behalf of the wife. Dr S is an Dr S at the University (omitted) and is the wife’s (studies omitted) supervisor.
The thrust of Dr S’s evidence is that the wife has been progressing well in her (omitted) studies, but has been delayed by her “legal and financial issues”. Dr S also states that the wife’s (studies omitted) is “very close to complete…. [and at] no stage has the University commented unfavourably on [the wife’s] rate of progress or commitment to her studies”. Interestingly, Dr S notes that “in late 2012 it became clear that [the wife’s] legal and financial difficulties were making it difficult for her to progress at the rate required for timely submission”. These proceedings had not commenced in late 2012. Further, Dr S states that the revised due date for the wife’s (studies omitted) thesis was, at one point, December 2013 and then had been extended to a date no later than April 2014, where the Dr S stated in an undated letter attached to his affidavit that “she may not be granted the award if she has not submitted by that time”. As at the date of hearing, the wife had still not submitted her thesis and, it would appear, was still an eligible (studies omitted) candidate. The wife had, during the hearing itself, made further contact with Dr S and the Court accepts that she now understands that her submission date is 30 January 2015.

The Law

The decision of the High Court of Australia in Stanford v Stanford [2012] HCA 52 (“Stanford”) makes it clear that the starting point for the exercise of the Court’s jurisdiction under s.79 of the Act to alter the property interests of parties to the marriage is the identification of the existing legal and equitable interests of each of the parties in their property.
Both parties assert and the Court accepts that, in all the circumstances, it is just and equitable that there be a property adjustment order in terms of the principles set out in Stanford. The parties’ proposed consent orders contemplate that position.
The preferred approach then to the determination of an application under s.79 of the Family Law Act1975 (“the Act”) is as set out by the Full Court of the Family Court of Australia in the case of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143, which sets out the following four inter-related steps:
1. Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
2. Identify and assess the contributions under s.79(4)(a),(b) & (c) (“the first limb – the contribution factors”) of the parties and express them as a percentage of the net value of the property (examined on either a global approach or an asset by asset approach, depending on the circumstances of the case);
3. Identify and assess the other factors relevant under s.79(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.79(4)(e), the matters referred to in s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
4. Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
In undertaking the first step outlined above, the Court must act with reasonable precision in both identifying and valuing the property pool. However, in the subsequent steps, the Court is not required to assess contributions with mathematical precision (see Nygh J in G & G (1984) FLC 91-582).
In Mallett & Mallett (1984) FLC 91-507, the High Court of Australia held that there is no rule or principle that the property built up by the parties’ joint efforts should be assumed as being equally contributed to.

Section 79(4) of the Act [Matters to be taken into account]

In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
e)the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

Section 75(2) of the Act [Matters]

The matters to be so taken into account are:
a)the age and state of health of each of the parties;
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain;
e)the responsibilities of either party to support any other person;
f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)the need to protect a party who wishes to continue that party's role as a parent;
m)if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
n)the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party;
naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i)a party to the marriage; or
ii)a person who is a party to a de facto relationship with a party to the marriage; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p)the terms of any financial agreement that is binding on the parties.
q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

General

It must be noted that an entitlement to make an application pursuant to s.79 of the Act does not create any legal or equitable right in property. Property rights come into existence only upon the making of an order (see Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133).

Superannuation

The Full Court of the Family Court of Australia’s decision in C & C (2005) FLC 93-220, requires the Court to consider the parties’ superannuation interests as a separate species of property.
Where the parties have superannuation, the preferred approach for the Court to adopt, as discussed in C & C (2005) FLC 93-220, is to prepare, as a separate pool, a list of the superannuation interest/s, and where a splitting order is sought under Part VIIB of the Act (or if no such order is sought, it being prudent to do so), carry out the following exercise:
a)Value the superannuation interest/s (according to the Regulations, if a splitting order is sought, or if no such order is sought, then according to the Regulations or otherwise).
b)Identify and assess the contributions under s.79(4)(a),(b) & (c), (“the first limb – the contribution factors”) of the parties and express them as a percentage of the superannuation interest/s (examined on either a global approach or an interest by interest approach, depending on the circumstances of the case);
c)Identify and assess the other factors relevant under s.79(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.79(4)(e), the matters referred to in s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable (in relation to the parties’ property and superannuation interests) in all the circumstances of the case.
C & C (2005) FLC 93-220 also set out in the context of a Court’s consideration of the matters set out in paragraph 49 (b) and (c) above, the following relevant matters:
“The relationship between years of fund membership and cohabitation, actual contributions made by the fund member at the commencement of the 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 or future entitlements under the fund.”
The above statement, was the subject of further analysis by the Full Court of the Family Court of Australia in its decision in M & M (2006) FLC 93-281, where the Court said:
“123. In our view it is clear from those comments that the majority in C & C (supra) was concerned with a consideration of actual contributions where they were ascertainable. The relationship between years of fund membership and cohabitation might be relevant in a defined benefits scheme whereas actual contributions made by the fund member at the commencement of the cohabitation might be relevant to an accumulation fund where in both cases the marriage was of short duration. However, in our view there is nothing said by the majority in C & C (supra) that would give any support for the application of some kind of a formula or that contributions to superannuation whatever the nature of the fund, should be treated in a different way from contributions to other property under s 79(4). This is so in our view whether the superannuation is considered as part of one pool of assets or in a separate pool.”
As the Full Court of the Family Court of Australia said in D & D (2006) FLC 93-256, in carrying out the exercise referred to in paragraph 49(d) above, the Court must also have specific regard to a consideration of the mix of superannuation interests and other property with which each party will be left as a result of the Court’s proposed orders. It may be that even though no party seeks a splitting order, it will become clear to the Court that the only just and equitable order which can be made in a particular case, will be for such a splitting order to be made. The Court must then afford the parties an opportunity to be heard in relation to that, and provide to any trustee of the superannuation fund, appropriate notice and a formal valuation of any superannuation interest under the Regulations may be required.
Notwithstanding the preferred approach, the Full Court of the Family Court of Australia in C & C (2005) FLC 93-220 also stated that the Court had a discretion to include a superannuation interest as an item of property (whether or not a splitting order is sought) and not consider it as part of a separate pool. The Court indicated that such an approach could be adopted, where:
a)the parties agreed; or
b)the superannuation interest itself fell within the definition of property contained in s.4(1) of the Act; or
c)if the interest did not fall within the definition of property, it was of small value when compared to the value of the items of property; or
d)there are features about the superannuation interest which make this appropriate.
The quantum of the husband’s superannuation is such that the likely effect of treating the superannuation as part of the property pool would be prejudicial to the wife’s interests, given her immediate financial needs and age, which could potentially enable her to access those funds in a limited timeframe. The husband, on the other hand, given his age, would be some time off being able to access funds and, indeed, has the potential over time to increase his base superannuation entitlements beyond that of the wife, given her age and work prospects.

What were the parties’ property, liabilities and financial resources at the time of hearing?

The following schedule taken from Exhibit “Court 1” contains all items which the parties have each identified as their property, liabilities, and financial resources:

Item	PROPERTY	H/J/W	VALUE $
1.	Property R property	J	630,000.00
2.	Property V property	J	200,000.00
3.	Property K1 & K2 property	J	635,000.00
4.	Property E property	J	450,000.00
5.	(business omitted)	J	9,568.00
6.	Motorbike. Husband says $5,500.00. Wife says $4,500.00	W	In dispute
7.	(omitted) Bank term deposit	W	$Nil
8.	Cash in Bank ((omitted) Bank and (omitted) Bank)	W	818.00
9.	Cash in Bank ((omitted) Bank)	H	9,558.00
10.	Cash in Bank (3 a/c (omitted) Bank)	J	9,090.00
11.	Household contents	H	2,500.00
12.	Household contents	W	2,500.00
13.	(omitted) motor vehicle	(business omitted)	4,800.00
14.	Toyota motor vehicle	(business omitted)	1,000.00
15.	Legal Fees	H	2,200.00
16.	Disputed bank transaction	W	4,900.00
17.	Frequent flyer points	W	106.00
18.	Frequent flyer points	H	1,225.00
19.	Add-back superannuation Husband says $89,000.00 Wife says $nil	W	In dispute
20.	Interim property distribution add-back	W	4,000.00
LIABILITIES
21.	Mortgage the Property R property	J	70,365.00
22.	Mortgage the Property R property	J	559,792.00
23.	Mortgage the Property R property	J	50,523.00
24.	Mortgage the Property V property	J	8,314.00
25.	Mortgage the Property K1 property	J	351,966.00
26.	Mortgage the Property K2 property	J	234,794.00
27.	Mortgage the Property E property	J	112,466.00
28.	Mortgage the Property E property	J	7,956.00
29.	Mortgage the Property E property	J	9,269.00
30.	Credit Card	H	4,545.00
SUPERANNUATION
31.	(omitted) Super	H	123,519.00
32.	(omitted) Super	H	51,411.00
33.	Wife’s Super	W	$0.00

The value of each of the various items of property and liabilities referred to in the above schedule is not in contention, save for items 6 and 19. In relation to item 6, the wife did not agree with the husband’s assessment of $5,500.00. There was no independent valuation of the said motor bike. Given that the wife will be entitled to this item of property, the Court accepts the husband’s concession against interest and will, accordingly, adopt the value of $4,500.00, as accepted by the wife.
The wife also asserts that item 19 in the above schedule should not be dealt with by way of add-back.
The Court will now turn to this contentious matter, so that the first stage in the analysis can be concluded, with the Court’s findings as to the property and liabilities to be included in the pool.

Add-backs

The question of what can and what cannot be legitimately “added-back” notionally to the pool of available property is a matter of discretion for the Court and was the subject of authoritative treatment by the Full Court of the Family Court of Australia in HDM & MM & SJM [2006] FamCA 47, where it was held that the following three clear categories applied to notional add-backs:
a)where the parties have expended monies on legal fees;
b)where there has been a premature distribution of matrimonial assets;
and
c)in the circumstances outlined by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092.
The rationale for adding back property exists where the matrimonial property no longer subsists as a form of property. If the property continues to exist, there would be no occasion for an add-back (See Townsend & Townsend (1995) FLC 92-569 and NHC & RCH (2004) FLC 93-204).
With regard to add-backs, the leading authority is the Full Court of the Family Court of Australia’s decision in NHC & RCH (2004) FLC 93-204, where the Court in concluding that “the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule” said in relation to legal fees as follows:
56.    In summary … 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.
57.    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.
58. 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.
59. Outstanding legal fees themselves are generally not taken into account as a liability.
60.    If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.
The basis for the add-back of legal costs can be found in an argument that a failure to add-back would have the effect of defeating the policy underlying s.117 of the Act (see DJM & JLM (1998) FLC 92-816). This policy contemplates that each party should pay his or her own costs, unless the Court orders otherwise. If the pool of property otherwise available for distribution has been reduced by payment out of monies to meet legal costs, those monies should, in those terms, be considered by way of add-back.
The Full Court of the Family Court of Australia has commented on the issue of “notional property” in its recent decision in Bevan & Bevan [2013] FamCAFC 116. While not specifically referring to paid legal fees, the majority (Bryant, Finn & Thackray JJ) stated [at 79]:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
Her Honour Justice Finn also stated [at 160]:
These reminders that the jurisdiction under s 79 is a jurisdiction to alter individual interests in title to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so called “addbacks”), and perhaps also of the unsecured liabilities of one or both parties. It may well be that these matters should more strictly be considered in making findings under s 79(4)(e) (i.e. s 75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79. But these questions do not arise in the present case, and are thus for another day.
The wife says that there is no evidence as to how her superannuation which was used to pay her legal expenses was, in fact, built up. The parties agreed that the wife’s superannuation at the date of the commencement of cohabitation was in the order of $30,000.00. Given the evidence concerning her remunerative employment during the relationship, the source of the wife’s acquisition of a quantum of superannuation in the order of $108,209.76, being the sum withdrawn on 12 July 2013, post the parties’ separation, can be inferred to be by way of funds substantially contributed from the husband’s income or the parties’ investments. In this case, the Court is of the view that given that so much of the withdrawn superannuation was used to pay legal costs and that such a payment was made as recently as July 2013, then the monies paid for that purpose should be added-back. That figure equates to $89,000.00. The balance of the funds potentially falls into a different category, as conceded by Mr Priestley SC, and will not be the subject of any add-back. Ms Ryan submitted that the payment for legal costs should not be added-back as the wife was mentally ill and would have required greater assistance from legal representatives and, accordingly, those fees were not paid as some form of wastage. There was no relevant evidence concerning mental illness and, further, this submission was misconstrued given that an “add-back” was not sought in the circumstances outlined by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 (see paragraph 59 above).

Finding

Accordingly, the Court finds that the parties’ property, liabilities and financial resources, as at the date of the hearing, available for distribution between them, are:

Item	PROPERTY	H/J/W	VALUE $
1.	Property R property	J	630,000.00
2.	Property V property	J	200,000.00
3.	Property K1 & K2 property	J	635,000.00
4.	Property E property	J	450,000.00
5.	(business omitted)	J	9,568.00
6.	Motorbike	W	4,500.00
7.	(omitted) Bank term deposit	W	$Nil
8.	Cash in Bank ((omitted) Bank)	W	818.00
9.	Cash in Bank ((omitted) Bank)	H	9,558.00
10.	Cash in Bank (3 a/c (omitted) Bank)	J	9,090.00
11.	Household contents	H	2,500.00
12.	Household contents	W	2,500.00
13.	(omitted) motor vehicle	(business omitted)	4,800.00
14.	Toyota motor vehicle	(business omitted)	1,000.00
15.	Legal Fees	H	2,200.00
16.	Disputed bank transaction	W	4,900.00
17.	Frequent flyer points	W	106.00
18.	Frequent flyer points	H	1,225.00
19.	Add-back superannuation	W	89,000.00
20.	Interim property distribution add-back	W	4,000.00
TOTAL PROPERTY	2,060,765.00
LIABILITIES
21.	Mortgage the Property R property	J	70,365.00
22.	Mortgage the Property R property	J	559,792.00
23.	Mortgage the Property R property	J	50,523.00
24.	Mortgage the Property V property	J	8,314.00
25.	Mortgage the Property K property	J	351,966.00
26.	Mortgage the Property K property	J	234,794.00
27.	Mortgage the Property E property	J	112,466.00
28.	Mortgage the Property E property	J	7,956.00
29.	Mortgage the Property E property	J	9,269.00
30.	Credit Card	H	4,545.00
TOTAL LIABILITIES	1,409,990.00
TOTAL NET PROPERTY	650,775.00
SUPERANNUATION
31.	(omitted) Super	H	123,519.00
32.	(omitted) Super	H	51,411.00
33.	Wife’s Super	W	$0.00
TOTAL SUPERANNUATION	$174,930.00
TOTAL NET PROPERTY PLUS SUPER	$825,705.00

What were the parties’ financial (direct and indirect) and non-financial (direct and indirect) contributions?

The Court must then consider all the contributions (direct and indirect), both financial and non-financial to the acquisition, conservation and improvement of the parties’ property and financial resources as well as to the welfare of the family before and after separation. The Full Court of the Family Court of Australia said in Aleksovski & Aleksovski (1996) FLC 92-705 (at 83,437):
“It is therefore necessary…[to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties.”
The Court must consider the contributions in an overall sense both before and after separation (see Sippel & Sippel [2004] FamCA 201).
One matter the Court must consider is whether to adopt a global or asset-by-asset approach to contribution. In the case of Norbis & Norbis (1986) 161 CLR 513, the High Court of Australia held that either approach is available to the Court in part or in whole. The discretion as to which approach is to be adopted should be exercised having regard to the facts of the particular case. The Court adopts a global approach here.
As the Full Court of the Family Court of Australia said in Parshen & Parshen (1996) FLC 92-720:
“in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to… s.79 [of the Act] that monies howsoever received by a party during the course of the parties cohabitation are used by that party for the benefit of the family unit [and] ….thus constitute a financial contribution by the party who received the monies”
There is no requirement that in assessing contributions the property contributed to must be in existence or its value traceable to other property in existence at the time of the hearing.

Direct and Indirect Financial and Non-Financial Contributions

At the commencement of cohabitation, the husband had a motor vehicle worth $10,000.00, superannuation of $30,000.00 and a credit card debt arising from share market trading losses of $10,000.00. The Court accepts the husband’s evidence in that regard.
The wife, at the commencement of cohabitation, had the Property I property with little or no equity, the Property G property with a mortgage debt of approximately $70,000.00 and superannuation of about $30,000.00.

No relevant matter was put to the Court concerning this factor.

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

No relevant matter was put to the Court concerning this factor.

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

No relevant matter was put to the Court concerning this factor.

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

No relevant matter was put to the Court concerning this factor.

q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

No relevant matter was put to the Court concerning this factor.

Conclusion

The husband submits that an adjustment of 15% should be made in the wife’s favour, reducing his percentage to 55-60% to the wife’s 40-45%.
The wife submits that an adjustment of a further 20-25% should be made in her favour, so that the final adjustment to the matrimonial pot should be assessed at 70-75% to her and 25-30% to the husband.
The Court has to be careful not to include in its assessment submissions of counsel not supported by the facts in evidence. Ms Ryan’s submissions as to the wife’s “very poor mental health”, the wife’s evidence as to the simplicity of her wants as not reflecting reality and her inability to resume work as a (omitted) were, to an extent, contrary to the wife’s own evidence and that of the witnesses relied on by her. Both of those witnesses assert that the wife would now be in a position to commence work as a (omitted) and the Court accepts that position.
The Court must ensure that it does not incorporate into its consideration of the extent to which property interests ought to be altered, any concept of “compensation for the loss of the marriage and all it offered”. See Warnick J in the decision of the Full Court of the Family Court of Australia CCD v AGMD (2007) 36 Fam LR 356 when considering an appeal from the decision of Carmody J (as he then was). The dicta of Warnick J is even more apposite post-Stanford.
The Court has had regard to the decision of Judge Baumann in Stiller & Power [2011] FMCAfam 996, given that it was referred to in submissions by Mr Priestley SC and, in particular, his Honour’s statement at paragraph 63:
It would, in my view, be an impermissible exercise of judicial discretion and a form of social engineering in this case to make some adjustment from the Wife’s pool of assets to the Husband merely because they went through the Act of marriage ...
Considering then all of the above s.75(2) factors, the Court is of the view that there should be an adjustment of 20% made in favour of the wife in both the non-superannuation and superannuation pools. This, the Court regards, as a proper adjustment given the weight attached to the various factors as set out above. This outcome reflects the cumulative outcome of the findings made pursuant to s.75(2) of the Act (see Tomasetti & Tomasetti (2000) FLC 93-023). That adjustment would then see the wife entitled to 60% in the non-superannuation pool equating to $390,465.00 to the husband’s 40% being $260,310.00 with $104,958.00 to the wife in the superannuation pool and $69,972.00 to the husband in that pool.

Are the proposed orders just and equitable?

Section 79(2) of the Act provides that:
“The 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.”
It is the justice and equity of the actual orders that the Court must consider (see Russell & Russell (1999) FLC 92-877).
As the Full Court of the Family Court of Australia said in Dickson & Dickson (1999) FLC 92-843:
“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…”
Section 81 of the Act requires the Court, as far as practicable, to finalise the financial relationship between parties when making orders for property settlement.
Section 79(5) of the Act needs to be exercised very sparingly and only in appropriate circumstances. This is not one of those circumstances.
The Court must have some regard to how the parties have reached agreement to deal with their relevant properties. The Court accepts that the husband has gone to some lengths to ensure that the wife will have a “roof over her head”. The effect of this is that the wife will retain the Property E property and the husband will retain the balance of the investment properties. The Court has no relevant evidence before it of any attitude by the financial institutions as mortgagees to their agreement to titles being transferred and mortgages discharged, released and/or refinanced in terms of the parties’ agreement.
Mr Priestley SC submitted that the wife taking the Property E property would see her receive $419,000.00. The husband would be left with $408,000.00. This would equate to 51% to the wife and 49% to the husband, notwithstanding Mr Priestley SC’s contribution based analysis which would see the husband receiving in the order of 70-75%. Mr Priestley SC maintained that the correct outcome for the husband would be 55% to him and 45% to the wife and, therefore, the differential could be taken up as a lump sum maintenance in favour of the wife, of in the order of approximately 5-6% or approximately $32,500.00 to $39,000.00. In those circumstances the wife would not be entitled to any ongoing maintenance claim. The Court has further considered this below.
In accordance with the Court’s assessment, the wife and husband will therefore receive the property and be liable for the debts as set out in the following tables:

Property to be retained by wife	$
Motor bike	4,500.00
Cash in bank	818.00
Household contents	2,500.00
Disputed bank transaction	4,900.00
Frequent flyer points	106.00
Add-back legal costs	89,000.00
Interim property distribution	4,000.00
The Property E property	450,000.00
TOTAL	555,824.00
Liabilities to be met by the wife
Mortgages on the Property E property	129,691.00
TOTAL NET PROPERTY	426,133.00
This would require an adjustment by the wife to pay the husband the sum of $35,668.00	390,465.00
Property to be retained by husband	$
The Property R property	630,000.00
The Property V property	200,000.00
The Property K property	635,000.00
(business omitted)	9,568.00
Cash in Bank	9,558.00
Cash in Bank	9,090.00
Household contents	2,500.00
(omitted) motor vehicle	4,800.00
Toyota motor vehicle	1,000.00
Legal fees add-back	2,200.00
Frequent Flyer points	1,225.00
TOTAL	1,504,941.00
Liabilities to be met by husband
Mortgage on the Property R property	70,365.00
Mortgage on the Property R property	559,792.00
Mortgage on the Property R property	50,523.00
Mortgage on the Property V property	8,314.00
Mortgage on the Property K property	351,966.00
Mortgage on the Property K property	234,794.00
Credit card	4,545.00
TOTAL	1,280,299.00
TOTAL NET PROPERTY	224,642.00
This would require an adjustment to the husband of $35,668.00	260,310.00

The wife has no funds available to her which would readily enable her to pay the adjustment of $35,668.00 to the husband as referred to in the above schedule. Accordingly, this sum must be provided out of a reduction in her superannuation entitlement.
The parties’ superannuation pool can then be dealt with in terms of a superannuation split from the husband’s (omitted) Super. Rather than the wife receiving $104,958.00, she will then receive the base amount of $69,290.00, being $104,958.00 less $35,688.00.
The property and superannuation adjustments will see the wife retain the Property E property subject to a mortgage debt totalling $129,691.00 (the instalments of which will be paid by the husband until March 2015 in any event). From an examination of the parties’ banking documents it would appear that this would expose the wife to a payment in the order of $120.00 per week. The wife does not have the current ability to meet such a payment. Mr Priestley SC concedes as much. The wife would have available to her $69,290.00 in the superannuation pool. This would enable her to effect a reduction in the mortgage debt to a level consistent with her potential earnings. If the wife found that she could not service her debts, the Property E property could still be sold and the wife would have an opportunity to “trade down” to more affordable accommodation be it by way of purchase or, indeed, rental.
The orders proposed by the wife would see her take the Property E property unencumbered and the other items of property referred to in the above schedule which would amount to $555,824.00 out of a net property pool of $650,775.00 or 85%. The Court is of the view that this would not be a just and equitable outcome for the husband.
The Court is satisfied that in all the circumstances of this case, the orders proposed by it are just and equitable. The Court is also satisfied in terms of Exhibit “Court 3” that the relevant trustee of the husband’s superannuation scheme has been afforded procedural fairness.

Spousal Maintenance

The wife also seeks orders for spousal maintenance. This claim is heard at the same time as the application for property adjustment but must be determined after the property application is considered. This is to ensure that the terms of any order made in the property proceedings are considered in the spousal maintenance application (see In the Marriage of Clauson (1995) FLC 92-595).

The Law

The Court must consider the spousal maintenance claim in accordance with the assessment process identified by the Full Court of the Family Court of Australia in In the marriage of Bevan (1995) FLC 92-600 which requires:
a)first, a threshold finding under s.72 of the Act;
b)secondly, a consideration of the factors in ss.74 and 75(2) of the Act;
c)thirdly, without the application of a fettering principle that any pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
d)finally, subject to the Court’s general discretion, to be exercised in accordance with provisions of s.74 of the Act with “reasonableness in the circumstances” as the guiding principle.
The threshold requirement as set out in s.72 of the Act provides that a party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, [emphasis added] that other party is unable to support himself or herself adequately, whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in s. 75(2).
Justice Goldstein in Evans & Evans (1978) FLC 90-435 noted that:
Section 72, for all that it is a threshold provision in the maintenance Part must not be read alone and it must firstly be read in the light of sec. 74. Section 72 cannot restrict the Court's duty to make such order “as it thinks proper”.
Further, Justice Mullane in N & N (1997) FLC 92-782 stated that:
[T]the interpretation of the expression “unable to support herself or himself adequately" is subject to the words "having regard to any relevant matter referred to in subsection 75(2)”.

Consideration of sections 74 and 75(2)

Section 74(1) of the Act provides:
In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this part.
Section 75(1) of the Act provides:
In exercising jurisdiction under section 74, the Court shall take into account only the matters referred to in subsection (2). [emphasis added]
The matters to be so taken into account under s.75(2) of the Act are as follows:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)   the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)     the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l) the need to protect a party who wishes to continue that party’s role as a parent;
(m)    if either party is cohabiting with another person, the financial circumstances relating to the cohabitation; and
(n)     the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)     any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)     the terms of any financial agreement that is binding on the parties; and
(q) the terms of any Part VIIAB financial agreement that is binding on a party to the marriage.
The test for taking into account a matter under s.75(2) of the Act, is also its relevance to a “just and equitable order” (see Waters & Jurek (1995) FLC 92-635). Consideration, however, can be limited to the most relevant matters rather than all which have some relevance (see Collins & Collins (1990) FLC 92-149).
The Full Court of the Family Court of Australia in In the marriage of Bevan (1995) FLC 92-600 held that, while the Court should pay proper regard to the factors set out in s.75(2) of the Act, an award of maintenance should not be at a subsistence level.
Importantly, s.75(3) of the Act provides that when a Court exercises jurisdiction under s.74 of the Act, the Court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit. Government pensions, allowances or benefits are defined in regulation 12A of the Family Law Regulations 1984.
With respect to the general powers of the Court in financial proceedings, s.80(1) of the Act is of relevance and s.80(1)(b) allows the Court to order payment of a weekly, monthly, yearly or periodic sum. Section 80(1)(h) allows the Court, inter alia, to make an order pending the disposal of the proceedings.

Application of the law

The Court must first determine to what extent the wife is unable to support herself adequately because of the matters set out in the relevant law, and then to determine by an examination of the wife’s reasonable needs, an amount that is reasonably required per week to provide adequate support for her.
Of particular significance, is the income, property, and financial resources available to the wife. These are as set out in paragraph 173 above.
The wife says that she cannot currently make ends meet. The Court accepts the wife’s position given that she is not currently earning an income. She has utilised her access to superannuation benefits to fund her legal costs.
The eligibility of the wife to an income tested pension is irrelevant to the question of whether or not she is able to support herself adequately. For the purposes of the wife’s capacity, income from such a pension is mandated by the statute to be nil.
The wife’s expenses to meet reasonable needs were the subject of some challenge by Mr Priestley SC as set out in paragraph 137 above. Taking these expenses into account and discounting some of the discretionary expenses, the Court is of the view that the wife’s expenses would be in the order of $800.00 per week. Given the wife’s income, she clearly meets the threshold.
The husband is currently paying in the order of $520.00 per month in repayments towards the mortgages on the Property E property as extracted from the (omitted) Bank Account statements attached to his financial statement, which approximates $120.00 per week for the wife’s benefit together with maintenance in the sum of $350.00 per week, totalling $470.00.
The Court must now consider the wife’s capacity for gainful employment:
a)“Consider previous workforce experience”.
b)“Consider qualifications”.
c)“Consider any medical history”.
d)“Attempts to obtain employment and whether successful or not ”.
Mr Priestley SC submitted that the facts of this case are similar to those considered by Justice Macmillan in Telford & Telford [2012] FamCA 995, where her Honour stated:
It is clear from the mother’s evidence that although she has a tertiary qualification and the capacity to earn a substantial income she has always dreamed of studying a particular course and has chosen to pursue her dream rather than obtain employment and that she believes the father has an obligation to support her so that she can realise her dream. It is conceivable that if the mother had lost her job and been looking for employment that the father, subject to his capacity to do so might have been required to contribute to the mother’s support until she could obtain suitable employment. But that is not what has happened in this case. I am not satisfied that the mother cannot adequately support herself. She has chosen not to seek employment in order to pursue further study and whilst her desire to become qualified in that field may be commendable it does not follow, that when she already has a significant demonstrated income earning capacity and she chooses to study rather than seek employment, the father should be required to support her whilst she obtains further and alternative qualifications.

Mr Priestley SC submits that the wife’s spousal maintenance claim should be dismissed. He says that the husband does not have the capacity to pay it. Notwithstanding that, the husband offers an ongoing commitment for 6 months until March 2015, as set out in proposed order 10. Further, the husband has been paying the wife spouse maintenance in the order of $822.00 per week between May 2013 and January 2014 when it was reduced to $350.00 per week and has not had to increase his debt position to do so. This suggests that the husband does have some capacity to pay the wife some maintenance for a limited period.
The Court is satisfied that, in the circumstances, there will be a period of time of approximately 12 months before the wife will be able to generate a sufficient income to provide for her reasonable expenses and to adequately support herself. The Court also accepts that the wife will be able to earn some income after she has obtained her (qualifications omitted), increasing in terms of that as deposed to by her in paragraph 138 above.
The Court considers that access to the husband’s (omitted) Super superannuation by virtue of a superannuation splitting order can potentially be utilised by the wife to meet her future needs.
The authorities are clear that the wife does not have to use up all assets and capital to satisfy the requirement that she is unable to support herself adequately.
The Court is of the view that the wife should be paid maintenance by the husband in the following terms:
a)For the husband to meet all outgoings on the Property E property, as defined in order 10 above, up until 31 March 2015 together with the payment to the wife of $350.00 per week until that date.
b)As and from 1 April 2015 to 30 September 2015, the husband shall pay the wife the sum of $500.00 per week. This will equate to the $350.00 per week plus the mortgage sums of approximately $120.00 per week, together with an allowance of approximately $30.00 per week for outgoings other than on the mortgage for the Property E property.
c)As and from 1 October 2015 to 31 March 2016, the husband shall pay the wife the sum of $350.00 per week. Maintenance will cease on 1 April 2016.
The quantum of the cash payments for maintenance in paragraph 203 above totals in the order of approximately $29,600.00. The payment in terms of paragraph 203(b) above, contemplates the wife having to take over the responsibility for servicing the mortgages on the Property E property together with an allowance for the outgoings on that property. That should apply for a period of 6 months and shall then reduce to $350.00 per week as the wife is likely to be in a position to be in receipt of an income in terms of that set out in her evidence. Further, the wife has the ability to apply the superannuation split in her favour to reduce the mortgage debt and, therefore, her repayments, over the Property E property. The Court is of the view that further financial assistance, albeit reduced to $350.00 per week, should apply for a further 6 months from 1 October 2015 to 31 March 2016 to accommodate the wife building up her income from her work efforts during that period.

Husband’s position

The Court must now determine whether the husband has the capacity to be able to reasonably contribute to the wife’s required level of support and, if so, to what extent.
Of particular significance, is the income, property, and financial resources available to the husband. These are as set out in paragraphs 173 above.
The husband’s expenses were not substantially the subject of challenge and the Court finds them, otherwise, reasonable.
The Court accepts that the husband has the capacity to generate an income sufficient to support his own needs and those of the wife to the extent of the maintenance ordered, particularly given that he has been paying the mortgage for the Property E property and $350.00 by way of spouse maintenance since January 2014.
The maintenance ordered and the period of time relevant to it, will assist the wife complete her (studies omitted), carry out her proposed steps to cement her ability to generate an income and ensure that she is not in a position, until those steps have been undertaken, to be set up for a failure in terms of being unable to retain the Property E property, as the parties have otherwise agreed to that, yet at the same time providing to the husband a reasonable period of time to structure any maintenance payments, but promoting a terminating date where the wife must take over the responsibility of her own maintenance and support, as she has clearly indicated she wishes to do.

Costs

Section 117 of the Act sets out that each party shall bear his or her own costs subject to the considerations in sub-section two.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is naturally something that can only be addressed after judgment is delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set forth above

I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Date: 10 November 2014

[2014] FCCA 2572

7 November 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Consent

Remedies

Costs

Fiduciary Duty

Constructive Trust

Exhibit No	Document	Tendered by
Court 1	Property and Liability document	Joint
Court 2	Minute of orders document prepared by the husband and reflective of the wife’s agreement	Joint
Court 3	Form of Order and letter from (omitted) Super dated 19 March 2014	Joint
A	Case outline of the husband	H
B	Income and Tax Records update by way of update to paragraphs 14, 15 and 16 of the husband’s affidavit	H
C	Schedule of expenses and payments by way of update to paragraph 32 to the husband’s affidavit	H
1	Case outline of the wife and initial proposed minute of order	W