Loxley and Loxley and Anor

[2017] FCWA 123

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: LOXLEY and LOXLEY & ANOR [2017] FCWA 123

CORAM: WALTERS J

HEARD: 9 & 10 DECEMBER 2015 AND 4 JULY 2016

DELIVERED : 26 SEPTEMBER 2017

FILE NO/S: PTW 4112 of 2014

BETWEEN: MS LOXLEY

Applicant

AND

MR LOXLEY
First Respondent

AND

JOHANNA PECK
Second Respondent

Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT – Where husband sexually abused female child of the marriage – Where husband serving term of imprisonment for indecently dealing with daughter – Consideration of factors referred to by Full Court in Kennon & Kennon (1997) FLC 92-757 – Consideration of Kennon factors in light of High Court's decision in Stanford v Stanford (2012) 247 CLR 108 – Where husband's furtive, criminal and deeply damaging conduct made wife's contributions significantly more onerous or arduous than they would otherwise have been – Where husband's behaviour considered relevant in relation to both contributions and s 75(2) factors – Where wife is likely to be primarily responsible for ongoing emotional care and support of abused (now adult) child – Consideration of husband's behaviour in the broader context of justice and equity

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr M. Rynne

First Respondent : Mr J. Tydde

Second Respondent : Ms E. Needham

Solicitors:

Applicant: Leach Legal

First Respondent : Elizabeth Wiese & Associates

Second Respondent : Pacer Legal Pty Ltd

Case(s) referred to in judgment(s):

B & B [2006] FamCA 883
Bevan & Bevan [2013] FamCAFC 116
Bonacci & Bonacci [2012] FamCAFC 15
Chapman & Chapman [2014] FamCAFC 91
Clauson & Clauson (1995) FLC 92-596
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
G & G [2006] FamCA 877
Harrington & Harrington and Ors (2007) FLC 93-317
Hayton & Bendle (2010) 43 Fam LR 602
Heale & Heale [2007] FamCA 828
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Kennon & Kennon (1997) FLC 92-757
Maine & Maine [2016] FamCAFC 270
McMahon & McMahon (1995) FLC 92-606
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
OSF & OJK (2004) FLC 93-19
Robb & Robb (1995) FLC 92-555
Russell v Russell (1999) FLC 92-877
S & S [2005] FamCA 1304
S and S [2005] FCWA 90
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Waters & Jurek (1995) FLC 92-635

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1Before the Court is the wife's application for final property settlement orders, together with the second respondent's claim in respect of the property known as [Property A]. The second respondent is [Johanna Peck], the husband's sister ("[JP]").

2The trial took place in December 2015 and occupied two sitting days. Mr Rynne of counsel appeared for the wife and Mr Tydde of counsel appeared for the husband. Ms Needham of counsel appeared for JP.

3On the first day of proceedings, a minute of consent orders was entered into between the husband, the wife and JP, addressing matters as they related to JP. Those orders are summarised below. Proceedings thereafter continued between the husband and the wife only.

4At the conclusion of the trial, I reserved my decision.

Abbreviations and other terms used

5In these Reasons, and unless otherwise indicated:

(a)all statements of fact comprise findings of fact;

(b)I have referred to the parties as "the wife", "the husband" and "JP" – and I mean them no disrespect by doing so – because it is less confusing than referring to them as the applicant, the first respondent and the second respondent;

(c)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides, among other things, that "to swear" includes "to affirm");

(d)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia; and

(e)unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or the "FLA".

Documents relied upon

6The wife relied on the documents listed in her papers for the judge filed 3 December 2015. Those documents were as follows:

(a) the wife's Form 1 initiating application filed 7 August 2014;

(b) the wife's amended Form 1 initiating application filed 11 May 2015;

(c) the wife's affidavit sworn 22 May 2015;

(d) affidavit of [Ms Collins], sworn 24 July 2015;

(e) affidavit of [Dr Bates], sworn 18 August 2015; and

(f) the wife's financial statement sworn 22 May 2015.

7Just before the trial was due to commence, the wife also sought to rely on the affidavits of [Mr Ronaldo] and [Mr Oliver]. I granted her leave to call Mr Ronaldo as a witness.

8The husband relied on the documents listed in his papers for the judge filed 2 December 2015. Those documents are as follows:

(a) the husband's amended Form 1A response filed 28 May 2015;

(b) the husband's amended minute of orders sought filed 2 December 2015;

(c) the husband's affidavits sworn 31 July 2015 and 3 December 2015;

(d) affidavit of [Mr Thorne], sworn 30 September 2015; and

(e) the husband's financial statement sworn 31 July 2015.

9JP relied on the documents listed in her papers for the judge filed 4 December 2015. Those documents are as follows:

(a)JP's affidavits sworn 1 October 2015 and 26 November 2015;

(b)affidavits of [Mr Elliot], sworn 12 August 2015 and 1 October 2015; and

(c)JP's financial statement sworn 13 November 2015.

10Other than the husband and the wife, the only witness cross-examined was Mr Ronaldo, the wife's brother.

Background

11The husband was born [in] 1952. The wife was born [in] 1957. It follows that they are 65 and 60 respectively. They married [in] 1978, and commenced cohabitation at that time. They separated on 14 May 2013 and were divorced on 25 November 2014.

12There are three children of the marriage, namely:

(a) Child A, born [in] 1990;

(b) Child B, born [in] 1991; and

(c) Child C, born [in] 1994.

13The wife is currently employed as a [librarian]. At the time of the trial, the husband was incarcerated [in prison]. Prior to his incarceration, he had retired.

14On 23 September 1976 – shortly before the commencement of his relationship with the wife – the husband purchased land at [Suburb A] ("[Property B]"). According to the husband, Property B was unencumbered by the time the parties commenced their relationship.

15The husband also owned an unencumbered block of land at [Suburb B] ("[Property C]").

16The wife had no assets of significance.

17At the time of the marriage, the husband was employed with [Company A]. He remained in this employment until September 2012. The wife was studying at [a Perth] University. She received a small scholarship to assist her to purchase textbooks and study aids.

18The parties initially lived in a rented unit in [Suburb C].

19In 1980, the wife commenced employment as a librarian. In the same year, the parties commenced building a house on Property B. In order to fund the construction, the husband says he and the wife borrowed $65,000 from Perth Building Society. The wife says they borrowed $80,000. Either way, in September 1980, the mortgage was registered and Property B was transferred from the husband's sole name to the joint names of the parties.

20In 1984, the husband purchased an investment property in [Suburb D] ("[Property D]"). Property D was purchased for $95,000 in the husband's sole name. It was encumbered by a mortgage to Perth Building Society.

21The mortgage on Property B was discharged on 28 October 1985.

22Also in 1985, the Property C was sold for approximately $30,000. The husband says that this money was used for the overall benefit of the family.

23In July 1990, the wife ceased working to care for the parties' eldest child. She returned to work in early 1991.

24Also in 1991, the husband and JP each inherited $80,000 from their father's estate. At JP's request, the husband used his $80,000 to assist her to purchase Property A for $160,000. Property A consisted of a house and approximately one acre of land on which JP intended to establish a [livestock] business. The property was registered in the names of the husband, the wife and JP as tenants in common in equal shares.

25The husband says he borrowed an additional $80,000 from R&I Bank to facilitate the building of [fencing]. According to mortgage documents, the amount borrowed was $70,000. This corresponds with the wife's evidence.

26From 1991, JP paid rent to the parties – which was deposited into a joint account. The husband says that the rent paid was below market rent.

27Before the birth of the parties' second child, the wife ceased working. From then until 1994, she worked from home in direct sales.

28In 1996, the wife returned to work part-time.

29Between 1998 and 2005, the husband committed sexual offences against the parties' youngest child, Child C.

30In October 2001, the husband and wife purchased Property E ("[Property E]") for $425,000. It was encumbered with a mortgage of $500,000 to Members Equity Bank. The parties thereafter moved into Property E, and Property B was rented out. The rental income was deposited into an account in joint names. It is not in dispute, however, that the wife was not aware that she had access to this joint account until after separation.

31On 5 December 2004, Property D was sold for $390,000. The proceeds of sale – comprising approximately $385,000 – were used to reduce the mortgage registered over Property E.

32In 2007, the wife commenced working on a full-time basis.

33In 2011, Child C began experiencing problems and was diagnosed with depression.

34In September 2012, the husband was made redundant. He received a redundancy payout of $330,000, the entirety of which was invested in his [Company G] superannuation fund.

35On 14 May 2013, the parties separated and the husband moved out of Property E. Contemporaneously with the separation, the husband was charged with four counts of indecently dealing with a child who is a lineal relative under the age of 16 years, and one count of knowingly penetrating a child who is a lineal relative under the age of 16 years. The child in question was Child C.

36On 16 June 2013, the wife and Child C moved out of Property E and into a rental unit in [Suburb E]. After being granted bail in July 2013, the husband moved back into Property E and resided there with the parties' two sons.

37Also in mid-2013, the husband transferred $80,000 to the wife. She says that this money was used for her rental costs, various other expenses and to purchase a car for Child C, who was not working. She also used about $5,000 for [cosmetic] surgery.

38Between May 2013 and December 2014, the wife borrowed $40,000 from her father to pay legal fees.

39In March 2014, the wife took out a personal loan. In the same year, the husband bought a 2014 [Toyota Prado] for $71,000 and a [Suburb F] Timeshare for $3,000.

40In May 2014, the wife began receiving half the rental income from Property B. This amounted to approximately $1,115 per month.

41On 9 May 2014, Child C commenced work at [Company B].

42The husband's criminal trial was heard in the District Court [in] 2014. He was convicted of four counts of indecently dealing with a child who is a lineal relative under 16 years.

43[In late] 2014, the husband was sentenced to 34 months imprisonment. He was made eligible for parole in [mid] 2016.

44On 31 March 2015, the wife took out a second NAB personal loan to assist with expenses and legal fees. In April 2015, she withdrew $12,000 from her Company G superannuation entitlements.

45In May 2015, the husband was diagnosed with [a medical condition].

46On 2 June 2015, consent orders were made for the parties to each receive $12,000 from the husband's Company G superannuation entitlements.

47In September 2015, the wife reduced her working days to four days per week. She then asked the tenants at Property B to pay her the full amount of rent. Thereafter she received approximately $2,230 per month from this source.

48In late 2015, the husband withdrew $45,000 from his Company G superannuation entitlements for legal fees. In November 2015, he notified the wife of his intention to withdraw further amounts of $16,500 and $20,000 respectively, also for legal fees.

49In November 2015, the wife borrowed another $30,000 from her father for legal fees, with arrangements made for a further $15,000 to be transferred to her solicitors' trust account. In total, she says she borrowed $85,000 from her father.

Procedural History

50Proceedings commenced in this Court on 23 July 2014, when the wife filed an application for divorce.

51Shortly afterwards, on 7 August 2014, the wife initiated property proceedings – in which she sought orders that would result in a division of the parties’ assets on the basis of 55% to her and 45% to the husband.

52On 19 September 2014, the husband filed his response, seeking a division of the parties' property on the basis of 40% to the wife and 60% to him.

53On 23 September 2014, a number of procedural orders were made, including an order for a Conciliation Conference to be held on 6 February 2015.

54The divorce became final on 25 November 2014.

55No settlement was reached at the Conciliation Conference on 6 February 2015, but a number of procedural orders were made relating to the filing and serving of material. The matter was also set down for a Readiness Hearing.

56On 11 May 2015, the wife filed an amended initiating application seeking more detailed orders. By way of interim orders, she sought that JP be joined as a party to the proceedings. The husband filed his amended response on 28 May 2015. He too sought that JP be joined as a party.

57On 2 June 2015, orders were made joining JP to the proceedings. Orders were also made for the valuation of Property A and the filing of further documents. A Readiness Hearing was listed for 18 August 2015, and the matter placed in the list of matters to be called over on 21 August 2015.

58On 18 August 2015, leave was granted for the parties to file and serve additional affidavit material, and for JP to have an extension of time within which to file her documents.

59On 28 August 2015, JP filed an application seeking that the matter be relisted in relation to the terms of reference for a single expert chosen to value Property A. She also sought that the matter be listed for a further Conciliation Conference and that she have an extension of time within which to file and serve her documents for trial.

60On 13 October 2015, the husband filed a response to JP's application. He sought a raft of orders relating to disclosure and the valuation of Property A.

61On 16 October 2015, JP's application and the husband's response came before the Court. Orders were made in relation to the valuation of Property A, JP's disclosure and the filing of further affidavit material.

62The trial was eventually listed for 9 December 2015.

63On 30 November 2015, JP filed another application seeking that the trial be adjourned to a date not less than 10 weeks from the date already listed and that she be permitted to tender evidence from an expert witness other than the single expert in relation to the value of Property A. She also sought that the date on which she be required to provide her disclosure be extended to 14 days prior to the new trial date. On 4 December 2015, and after hearing counsel for all parties, I dismissed JP's application.

64On 7 December 2015, the wife filed an application seeking leave to rely on the affidavits of Mr Oliver and Mr Ronaldo. This application was listed to the first day of trial.

65On 9 December 2015, the first day of trial, the husband, the wife and JP signed a minute of consent orders dealing with JP's claim. The orders were to the following effect:

(a)Within 120 days, the parties must transfer to [JP] and/or her nominee all their right, title and interest in [Property A] ("the Transfer").

(b)Contemporaneously with the Transfer, [JP] must pay $483,000 ("the Payout") to the wife's solicitors.

(c)Pending the Transfer (or the sale of [Property A]), [JP] have exclusive occupation of [Property A] (with no liability for rental payments to the husband and the wife) – and she must keep [Property A] in good order and repair, pay all outgoings in relation to it, and indemnify the husband and wife in respect of the same.

(d)The parties pay equally the costs of effecting the Transfer.

(e)In the event [JP] is unable to pay the husband and the wife the Payout within the specified timeframe, the parties must sell [Property A].

(f)If [Property A] is to be sold, the proceeds are to be dealt with in the following order:

(i)agent's (or auctioneer's) fees, commission and costs of sale;

(ii)council rates and other service fees due at settlement; and

(iii)the balance to be divided as follows:

A.one third to [JP]; and

B.the remaining two thirds to be divided as per any further order of this Court or by consent order made between the husband and wife.

(g)No orders as to costs in relation to the case as it pertains to [JP].

66Counsel for JP was thereafter given leave to withdraw and the trial continued in her absence. JP remained a party to the proceedings.

67The wife was also granted leave to call Mr Ronaldo as a witness.

68The trial concluded on 10 December 2015, at which time I reserved my decision.

69Pursuant to the orders made on 9 December 2015, Property A was transferred to JP on 24 March 2016, and $483,000 was provided to the wife's solicitors.

70On 25 May 2016, the husband filed an application seeking leave to reopen proceedings in order to admit an affidavit of [Ms P], a solicitor with conduct of the file. I listed the matter to 4 July 2016.

71Shortly afterwards, the wife filed a response to this application, seeking that it be dismissed.

72The husband amended his application on 30 June 2016. He sought to reopen the trial, and to be permitted to rely on further affidavit material of Ms P, sworn 18 May 2016.

73On 4 July 2016, consent orders were made to the effect that, by way of partial property settlement, the wife was to receive $169,000 from the funds arising from the transfer of Property A.

74Consequent upon the husband's amended application, the proceedings were re-opened for the sole purpose of admitting into evidence a letter dated 13 April 2014 from the wife's solicitors to the husband's solicitors, detailing that Child C was no longer living with the wife. She had moved into rental accommodation with her two brothers. The letter also outlined that Property E was vacant and that the wife intended to reside at the property – and that the solicitors understood that the husband's application for parole had been denied.

75The husband's application was otherwise dismissed.

Wife's proposal

76The wife sought orders as outlined in her papers for the judge. I do not intend to repeat the entirety of the minute, especially given that much of the minute relates to Property A.

77In brief, however, the wife sought orders to the effect that:

(a) the husband must transfer to the wife his interest in Property B;

(b) the wife transfer to the husband her interest in Property E; and

(c)the husband pay the wife a cash sum to divide the net asset pool on the basis of 67.5% to the wife and 32.5% to the husband, with such sum to be paid from the husband's Company G Superannuation pension account, (or, in the alternative – and at his option – from another source).

78On the first day of trial, however, counsel for the wife made an open offer for the matter to settle on the basis that the wife receive 52.5%. It was a condition of the offer that it be accepted before the wife's counsel commenced opening submissions. The husband declined the offer.

79In final submissions Mr Rynne sought a distribution of net assets and superannuation in the range of 60% to 67.5% to the wife, but accepted that any more than 60% might be "overreaching". As is apparent from these Reasons, I do not agree that any significant "overreaching" has occurred.

Husband's proposal

80The husband sought orders contained in annexure C of his papers for the judge. Leaving aside the orders in relation to Property A, the orders sought were as follows:

(a)within 60 days, the husband must transfer to the wife all his right, title and interest in Property B;

(b)contemporaneously with the transfer of Property B, the wife transfer Property E to the husband; and

(c)within 14 days, the husband's solicitors provide to the Trustee of the husband's Company G superannuation fund a proposed minute of orders regulating a splitting of the husband's interest in Company G such that there be a superannuation splitting order out of the husband's Company G superannuation fund – such sum being the amount necessary to achieve an overall division of the net matrimonial assets on the basis of 65% to the husband and 35% to the wife.

81Mr Tydde later revised his assessment, and suggested that an appropriate end result would be a split on the basis of 55% to the husband. This involves an overall assessment of contributions on the basis of 50% to each party, together with an adjustment of 5% in the husband's favour to take account of the s 75(2) factors.

82Clearly, the husband and wife agree upon the broad manner in which their property is to be divided between them. The wife wishes to receive Property B and the husband wishes to receive Property E. The dispute involves the amount of the cash adjustment to achieve this result.

Law on property settlement claims

83The following generic summary of the law is based on similar summaries in my decisions in Dekker & Dekker [2014] FCWA 61 and Fitzgerald-Stevens & Leslighter [2015] FCWA 25. I acknowledge, however, Thackray CJ's references to the former decision in Fielding & Nichol [2014] FCWA 77.

Approach prior to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108

84Until the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 ("Stanford"), the Full Court had consistently ruled that the general approach to a property settlement application was settled. The first "step" or "stage" was for the Court to identify the property of the parties. It was then required to attribute a value to each item of property – usually as at the date of the hearing. Thereafter, it assessed the extent of each party's contributions under the various sub-headings described in s 79(4). Finally, the Court considered the financial resources, means and needs of the parties, and the other matters set out in s 75(2) so far as they were relevant. An adjustment of the amount due to each party by way of contribution was then made by reference to the s 75(2) factors. It was not essential, however, that such an adjustment take place. Generally speaking, an adjustment was made because one party had greater needs and the other had stronger means.

85In relation to the contributions of the parties under s 79(4) generally, it had been held that a "global" approach would usually be more convenient than an "asset by asset" approach – although the application of an asset by asset approach does not (of itself) amount to an error of law: see Norbis v Norbis (1986) 161 CLR 513.

86The s 75(2) factors were considered to be directly or indirectly related to the process of arriving at a just and equitable result. It followed that there could be circumstances in which the justice and equity of the case, and the specific provisions of s 75(2), supported an adjustment in a party's favour for matters which could not be described comfortably as being of financial or economic significance: see McMahon & McMahon (1995) FLC 92-606 at p 82,043.

87It had also been held that, under s 79(2), the Court was required to be satisfied that the property settlement orders that it proposed to make were just and equitable – and not simply that the underlying percentage division of the net value of the parties' property was appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings was just and equitable, it was the justice and equity of the actual orders, and not of the percentage distribution, which had to be considered: see Russell v Russell (1999) FLC 92-877.

88The overall process to be applied in property settlement cases was summarised by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395 ("Hickey"), where their Honours said at [39]:

The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), including, because of s.79(4)(e), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…

89My view was that the testing of any proposed orders by reference to s 79(2) was never a fourth substantive step (properly so called) in the property settlement exercise: see OSF & OJK (2004) FLC 93-19; see also B & B [2006] FamCA 883 at [105] and [106] and Bonacci & Bonacci [2012] FamCAFC 15, where the Full Court said at [61]:

…[The] Full Court has said on a number of occasions the so-called fourth step is not an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, a just and equitable order might be achieved based on the circumstances of the case before him or her ... (References omitted).

90At the end of the day, though, and in the majority of cases, the precise nature of the final "step" or "stage" in the property settlement exercise may not have been of any real significance. It is enough to record that the process involved the Court metaphorically "stepping back" to consider whether the proposed orders (arrived at after the application of the first three steps described in Hickey) were just and equitable.

Stanford v Stanford (2012) 247 CLR 108

91In Stanford (supra), the High Court challenged the validity of the approach described above.

92The High Court emphasised that the provisions of s 79 empower the Court to make orders "altering the interests of the parties to the marriage in [their] property" (although the proceedings are described as relating to "property settlement"). As a result, it is essential to begin consideration of whether it is just and equitable to make a property settlement order "by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in [the property available for distribution between them]": see Stanford at [37].

93Of particular importance are [35] to [46] of the plurality decision in Stanford (under the heading The operation of section 79), in which it was emphasised that:

... the requirements of [s 79(2) and s 79(4)] are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

94In relation to the expression "just and equitable", the plurality said at [36] (footnotes omitted):

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

95The plurality then said that, while the power given by s 79 is not to be exercised in accordance with fixed rules, "three fundamental propositions" adhere to the power to make property orders under that section:

(a)Firstly, "it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property." The interest of parties in property cannot be altered unless their existing legal and equitable interests in the property can be identified.

(b)Although the court has a very broad power to make orders in relation to property, "it is not a power that is to be exercised according to an unguided judicial discretion". The judicial discretion must be exercised in accordance with legal principles – including the principles which appear within the FLA itself. Further, "because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is 'just and equitable' to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist": see Stanford at [39].

(c)The question presented by s 79 is whether those rights and interests should be altered.

96The consideration of the various factors in s 79(4) (including the parties' contributions in all their various guises) does not give rise automatically to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The just and equitable requirement in s 79(2) must also be considered and applied. Thus: "to conclude that making an order is 'just and equitable' only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the [FLA]".

97After referring to the above three propositions, the plurality in Stanford explained at [42] that – in the vast majority of cases – the requirements of s 79(2) are fairly easily satisfied:

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

Summary of current position

98The Full Court has taken the opportunity to discuss the decision in Stanford (supra) in a number of comparatively recent decisions, including Bevan & Bevan [2013] FamCAFC 116, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.

99I recognise that I am bound by the Full Court's explanation of the operation of s 79 and acknowledge that it has ruled in the decisions referred to above that:

(a)it would be a "fundamental misunderstanding" to read Stanford as suggesting that the matters referred to in s 79(4) must be ignored in determining whether it is just and equitable to make an order altering property interests;

(b)on the other hand, a consideration of the s 79(4) matters is not mandatory in answering the s 79(2) question;

(c)the just and equitable requirement is not "a threshold issue, but rather one permeating the entire process"; and

(d)while the s 79(2) and s 79(4) issues must not be conflated, "they are intertwined because the text of the [FLA] links them".

100I respectfully agree with Thackray CJ in Fielding & Nichol (supra) at [33] that the effect of the Full Court's analyses of the operation of s 79 is that "it is open to a trial judge, in addressing the s 79(2) question, to consider matters that may be seen as arising under s 79(4), but consideration of those matters is by no means conclusive in determining whether the 'just and equitable' test has been met".

101As discussed in my decision in Fitzgerald-Stevens & Leslighter (supra), and assuming a "step" or "stage" based approach to the determination of an application brought pursuant to the provisions of s 79 (which I shall call "the property settlement exercise") is still appropriate, my view is that a pragmatic and principled approach to the determination of such an application is as follows:

(a)The first process in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.

(b)The second process involves ascertaining whether it is just and equitable – within the meaning and contemplation of s 79(2) – to make an order altering the interests of the parties in their property. In most cases (relevantly, where the parties have separated and are no longer living in a marital relationship) the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the Court that it is just and equitable to make orders altering the parties' interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth processes.

(c)In the course of ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property (in other words, during the second process described above), it is legitimate to consider the contributions of the parties in all their various guises, but consideration of those matters at this stage of the property settlement exercise is not obligatory; still less is that consideration conclusive in determining whether "the 'just and equitable' test" has been met.

(d)In the third process, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c), and determine their contribution-based entitlements.

(e)In the fourth process, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) – including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant – and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established as a consequence of the previous process.

(f)Finally, the Court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further substantive "adjustment"; it is an opportunity for the Court to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.

(g)Throughout the process described above, the Court must bear in mind that the "just and equitable requirement" – to use the words appearing in the heading to s 79(2) – is neither "a threshold issue" nor some sort of "factor" to be considered wholly within one or more of the steps, stages or processes referred to. Instead, it pervades and informs the entire process.

The husband's conduct in respect of Child C

102Throughout the trial, there was discussion about the appropriate way to treat the husband's actions in respect of Child C within the context of the property settlement exercise.

103Justice Monteith dealt with a similar situation in Heale & Heale [2007] FamCA 828. The father had been convicted of sexual abuse, perpetrated against a child of the relationship. The mother had subsequently sought property settlement.

104His Honour saw fit to deal with the father's abuse of the child by dividing up the contributions element into the period before separation and the period between separation and trial, and allocated certain percentages to the different periods. His Honour also took account of the impact of the child's mental health on the wife's future earning ability under the s 75(2) factors.

105Of course, as the Full Court made clear in Dickons & Dickons [2012] FamCAFC 154, it is no longer appropriate to divide contributions in this manner.

Kennon & Kennon (1997) FLC 92-757

106I consider it better to approach the matter in a similar manner to that adopted by the Full Court in Kennon & Kennon (1997) FLC 92-757 ("Kennon"). In that case, the Full Court said (at p 84,294):

Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within section 79. We prefer this approach to the concept of 'negative contributions' which is sometimes referred to in this discussion.

In the above formulation, we have referred only to domestic violence… but its application is not limited to that.

107The Full Court continued (at page 84,294):

It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…

108In S & S [2005] FamCA 1304, the Full Court said at [65]:

The term "course of conduct" is a broad one. We do not think that conduct must necessarily be frequent to constitute a course of conduct though a degree of repetition is obviously required.

109In G & G [2006] FamCA 877, Warnick J accepted that "…before domestic violence can affect a contributions assessment, two matters of fact must be established…" Those "matters of fact" are as follows:

(a) A relevant course of conduct towards the other party to the marriage.

(b)The relevant course of conduct must be demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, and to have made his or her contributions significantly more arduous. Such conduct must also have had a discernible impact on the contributions of the other party.

110His Honour held, in effect, that general statements to the effect that domestic violence has had or may have had a "significant adverse impact" or a "discernible impact" upon the contributions of the party subjected to it are inadequate to explain or justify how practical weight been given to the factor. In other words, evidence of the relevant course of conduct and its impact upon the other party's contributions is crucial.

111His Honour also held that the correct approach to evidence of this nature is to make appropriate findings regarding –

(a) the relevant course of conduct; and

(b) its impact upon the party subjected to it ("the victim"),

in the context of determining whether greater weight should be given to particular types of contribution made by the victim than would otherwise be the case.

112The principles in Kennon were reaffirmed recently in Maine & Maine [2016] FamCAFC 270, commencing at [47].

113In S and S [2005] FCWA 90 ("S & S"), Martin J considered the principles in Kennon in the context of the husband in that case (to whom I shall refer as "H") having sexually abused the wife's children (his stepchildren). I shall refer to the wife in S & S as "W". At the time of the trial, H was in prison. He had been convicted of a total of 14 offences of sexual assault on his two stepdaughters. It was not in dispute that H was likely to spend a considerable period of time in prison, and perhaps as long as 12 years.

114Her Honour discussed at length whether H's conduct had the effect of making W's contributions to the welfare of the family more onerous. The discussion begins at [232]. W's argument was summarised at [252] as follows:

In summary, for [W] it was submitted that family law must keep pace with the views of society relevant to any particular case before it, and there is now an increasing awareness of the impact on children and families of conduct such as [H] has engaged in. His conduct has been recognised by the District Court of Western Australia as being so appalling as to require extremely heavy sentences; that this case certainly falls into the narrow band of cases where conduct significantly impacts on contributions.

115H's argument was summarised at [244] as being to the effect that –

… there was no evidence of a causal link between [H's] conduct and the daughters' behaviour, nor between the daughter's behaviour and [W's] contributions. There was no expert evidence in support of [W's] claims, apart from [W] and the girls having undertaken counselling for some time, and it was accepted that psychological evidence would be required in the event the girls wished to make criminal injuries compensation claims as was anticipated.

116This argument was expanded at [246] as follows:

… [There] is no evidence of the vital cause or link between the significant behavioural problems of [W's] daughters and [W's] contributions to the marriage. It is not in dispute that during the marriage, [W] was not aware of the offences of which [H] was convicted.

117After discussing the relevant law, and referring to Robb & Robb (1995) FLC 92-555 ("Robb") regarding the relevance of the fact that H's offences were committed against his stepdaughters (who cannot be regarded as falling within the FLA definition of "children of the marriage"), Martin J said at [271]:

While it was conceded the parties and children formed a family before [W's] children left home, since [W's] daughters were not children of the marriage, I am not prepared to accept that conduct which may make [W's] contribution to the welfare of the family represented by those children more onerous, is relevant to the issue of contribution pursuant to s 79(4)(c). In any event, on the evidence, I am not satisfied that [H's] conduct made [W's] contributions significantly more onerous (as referred to in Kennon…), on the evidence before me, considering the whole period of the relationship.

118Having reached these conclusions, her Honour saw fit to address the impact of H's conduct under the general heading of the s 75(2) factors:

308.In Robb…, the Full Court, at p 81,547, went on to say in considering whether to make an adjustment for [W's] contributions to the care of her children under s 75(2)(o), it was relevant whether:-

A failure to make such an allowance would not offend the ordinary reasonable man or woman's notion of justice.

309.It is important to remember, in considering this issue, the effect of [H's] conduct on him. Not only has he lost his freedom for what may be many years, and with this goes a substantial drop in standard of living, he has incurred substantial legal fees for the criminal cases and may well have to pay Criminal Injuries Compensation of a significant amount. He has, appropriately, suffered very serious consequences financially and personally.

310.While I accept that not making at least some adjustment as recognition of the horror of [H's] conduct may offend the ordinary reasonable man or woman's notion of justice, only a small adjustment in percentage terms for s 75(2) factors is warranted in these circumstances, largely because a small percentage represents a substantial sum.…

119Her Honour eventually concluded that it would be appropriate to increase W's entitlement (being her entitlement on the basis of contributions alone) by 2.5% to take account of the s 75(2) factors – in their entirety. The asset pool (including superannuation) in S & S totalled approximately $2.24 million. The 2.5% adjustment to take account of the s 75(2) factors meant, in effect, that W received approximately $56,000 more than she would have received on the basis of her contribution-based entitlements alone. In turn, the adjustment brought about an additional differential between the parties of $112,000. In the present case, the asset pool (including superannuation) is approximately $3.462 million. A 2.5% adjustment to take account of the s 75(2) factors would amount to approximately $86,550, creating a differential of $173,100.

120In the present case, the husband sexually abused Child C (the parties' daughter, who is clearly a child of the marriage) over an extended period of time. For the reasons discussed below, and because the dicta in Robb do not apply, I prefer to deal with this factor under, primarily, the general heading of Contributions. Whichever approach is adopted, however, I am more than satisfied that –

a)the husband's conduct had a significant and discernible adverse impact upon the wife's contributions (in the broadest sense), and made those contributions significantly more onerous and arduous than they ought to have been; and

b)paraphrasing Martin J's words, "not making at least some adjustment as recognition of the horror of the husband's conduct" would certainly "offend the ordinary reasonable man or woman's notion of justice".

At the same time, I am well aware of the need to avoid "double counting" this factor. In other words, and although sight of the High Court's comments in Stanford should not be lost, the husband's conduct in relation to Child C should – ordinarily – not be given weight as a factor under both s 79(4) and s 75(2). As I have said below, however, and as Stanford emphasises, little may turn upon the precise categorisation of Kennon type factors; what is important is the weight to be given to such factors in the overall property settlement exercise or process, and that the factors not be double-or triple-counted.

Course of conduct, and the impact of such conduct – evidence

121In her affidavit sworn 22 May 2015, the wife deposed as follows:

10.To the best of my knowledge, one of [the husband's] bail conditions when he was charged was that he could not come near the former matrimonial home while [Child C] was residing there for two months after 14 May 2013. This was an extremely stressful time for me and, I observed, for all three of our children.

11.[The husband] wanted to stay at the former matrimonial home. I took steps to arrange for [Child C] and me to move into rental accommodation in [Suburb E] and we did so on 16 June 2013.

…

52.[Child C] needed a lot of support from me immediately following separation, including physical, emotional and financial support, and now although she is working, she continues [to] need emotional support.

53.[Child C] developed depression in the middle of 2011. She takes anti-depression medication

…

59.I have suffered and continue to suffer from stress and anxiety as a result of the events surrounding separation with [the husband] and the effect of [the husband's] conviction emotionally on me and our children. The stress symptoms and the exacerbation of my depression has made it incredibly difficult for me to work full time as a [librarian].

60.When I found out about [the husband's] charges I started suffering from stress headaches, shaking hands and fogginess in my mind. I still suffer from these symptoms. I have had a lot of trouble sleeping and sometimes take sleeping tablets to help me sleep. Before separation, I was taking a low dose… an antidepressant. Following separation my general practitioner… increased my dosage to the maximum.

61.I have taken sick leave and unpaid leave because at times I have struggled to feel emotionally and physically up to [working as a librarian]. It has been overwhelming for me at times, trying to work full time to meet my expenses and cover legal bills, while at the same time trying my best to emotionally support [Child C] and our sons. There has also been the added stress of these proceedings to deal with.

62.I see a counsellor once or twice a month depending on how I am feeling. I am currently seeing [Ms Collins], a clinical psychologist. …

63.[Child C] has seen a counsellor since separation to assist her. I have incurred approximately $3,500 in costs for counselling for [Child C] and myself since separation.

122In a report attached to her affidavit sworn 18 August 2015, the wife's GP, Dr Bates, said:

[The wife] is currently suffering from Major Depression and is requiring the maximum dose of her antidepressant Lovan 80mg and seeing a Psychologist [Ms Collins] for regular counselling support. [The wife] complains of recurrent headaches, sleep difficulties, low mood and poor concentration at work. [The wife] has required a medical certificate on several occasions for being unable to attend work due to this.

[The wife] was diagnosed with Reactive Depression in March 2012 due to marital issues and concern over her daughter [Child C's] mental health.

She was initially referred to a Clinical Psychologist… for counselling.

[The wife] was commenced on the antidepressant Lovan in September 2012.

[The wife's] depression has been exacerbated by [Child C] revealing her father's sexual abuse in May 2013, [the wife] separating from her husband and moving out of the family home with [Child C], [the wife] supporting [Child C] through the subsequent Police charges and Court case against [the husband], and her concern over the impact this has had on her two sons.

[The wife] has continued to need psychological support with a Clinical Psychologist and her medication has needed to be increased over that time to the current maximum dose of 80mg.

It is my opinion that [the wife] is currently not coping with [working] full-time [as a librarian] and I have strongly recommended she reduce to part-time work.

I believe [the wife] will need ongoing psychological counselling and medications to deal with these various stressors.

123In her affidavit sworn 24 July 2015, the wife's Clinical Psychologist, Ms Collins, deposed as follows:

I have observed in my sessions with [the wife] that she currently suffers from depression and anxiety.

…

Through observing [the wife] in our sessions I have seen that she is experiencing very significant psychological difficulties which have worsened over the time in which I have been seeing her.

…

[The wife] has consistently reported having difficulties concentrating. She has reported consistently that her concentration is "non-existent", both at work and in her day-to-day life. This significantly impairs her functioning in her day-to-day life and at work. She has reported that these difficulties were most marked when she was [working as a librarian]. [The wife] has reported her memory is "always terrible" at the moment, which significantly impacts her daily functioning.

…

From my observations of [the wife] and through our sessions, it is my opinion that [the wife's] psychological health would recover significantly if she were able to immediately reduce her hours to working part-time or casually. In my opinion, she would require significantly less psychological support if she were working casually or part-time.

124During her oral evidence, the wife said –

[Child C] works at [Company B]. She quite enjoys her job because she loves travelling and she has had the chance to travel a couple of times this year. She is probably brighter than both my boys but has never achieved to her level and one day she would like to go back and study, but at the moment she is still coming to terms with the whole of everything that has happened and she keeps herself going by just being on a one-track mind at work and just concentrating and doing her job. She comes home. She’s spent. She sits on the couch. She goes to bed. She gets up and goes to work again. Basically, she doesn’t have another life.

125I am satisfied that I should accept all the above evidence – noting, among other things, that neither Ms Collins nor Dr Bates were required for cross-examination. I accept that the evidence reveals that the wife's mental health has been adversely affected by Child C's state of mind, and by the disclosure of the husband's abusive behaviour. Further, and as Mr Rynne described, if Child C had been sexually assaulted by a neighbour, both parties would have had the responsibility of caring for and supporting her. Given that Child C was sexually assaulted by her own father, however, the only person who can effectively care for and comfort her is the wife.

Conclusion regarding the husband’s course of conduct and its impact

126It is clear that the course of conduct referred to in Kennon is not limited to family violence, and is broad enough to incorporate other forms of behaviour, but it also seems clear that the conduct must be “by one party towards the other”. The more indirect or remote that conduct becomes, the greater the importance of demonstrating that it had “a significant adverse impact” upon the other party’s contributions or, that those contributions were made “significantly more arduous that they ought to be have been”.

127There can be no doubt that there is evidence before the Court of the husband's sexual abuse of Child C. There is also evidence before the Court of the impact of that behaviour on Child C and, as a consequence, on the wife.

128It is important that I record the fact that the Court treats the husband's behaviour extremely seriously, and does not minimise it in any way. There can be no doubt that it would have had a very significant adverse impact upon the wife. Clearly, such conduct on the part of the husband would have been (must have been) emotionally and psychologically devastating for the wife. Further, the husband’s conduct would have (must have) seriously and adversely affected the wife’s confidence and self-esteem.

129I am bound to make findings in accordance with the evidence before me. I conclude from that evidence that the wife’s ability to care for, support and nurture the children, to keep house for the family, to work efficiently and with focus in an attempt to improve the economic circumstances of the parties and to provide a happy, secure and supportive environment for the family as a whole was discernibly (and adversely) affected by the husband’s conduct.

130It seems to me that it is impossible not to conclude that the wife’s contributions to the welfare of the family, and in the role of home maker and parent, were made significantly more arduous as a result of the husband’s conduct than they ought to have been. In my opinion, the wife was entitled to expect that she would be free to perform her functions as home maker and parent without the overlay of emotional stress and anxiety – and guilt – inevitably associated with the husband's egregious behaviour. Generally speaking, the wife should have felt secure in the knowledge that the husband, the father of the parties’ children, would protect and comfort them and support her in her home making and parenting roles – and not knowingly, selfishly and insidiously add to the obvious burdens associated with the running of a household containing three children. This must be so irrespective of whether the wife was consciously aware of the husband's behaviour towards Child C while it was occurring. By its very nature, it involved secrecy and deception. Whilst I accept that the husband assisted the wife from time to time, and that the conduct to which I have referred above occurred relatively infrequently, that conduct must necessarily have caused the wife’s contributions to the welfare of the family – in the broadest sense – to be significantly more arduous than they ought to have been. Put a different way, the wife's contributions to the welfare of the family were clearly more arduous than they would have been if the husband had not abused Child C in the manner that he did.

131An assessment or analysis of the type undertaken by the Court under the general heading of the Kennon factors cannot and should not be attempted with some form of mathematical precision. The assessment or analysis in this regard is part of a broad discretionary exercise, and the evidence to which I have referred leads inexorably to a tilting of the scales in the wife’s favour – primarily, as I have indicated, in relation to one particular aspect of the wife’s contributions (being her contributions to the welfare of the family in the broadest sense).

132Although the conclusions set out in the previous paragraphs stand alone, they are bolstered or reinforced by the principles contained within and extracted from Stanford. The plurality of the High Court emphasised that "just and equitable" cannot and "does not admit of exhaustive definition", and that it is "not possible to chart its metes and bounds". Just as importantly, the just and equitable requirement is not simply "a threshold issue"; it permeates and informs the entire property settlement process or exercise. In my opinion, even if the conclusions set out in the previous paragraphs are incorrect (and I do not accept that they are), the just and equitable requirement demands that the husband's furtive, criminal and deeply damaging behaviour be weighed in the balance. It is the antithesis of the "express and implicit assumptions that underpinned" both the marriage itself and the parental duties, responsibilities or obligations inherent within the family, and recognised in the FLA (see below). This, in turn, must inevitably affect the express and implicit assumptions underpinning the parties' existing property arrangements and the mutuality and integrity of the marital relationship itself. These considerations cry out for recognition when consideration is given to what might be perceived as just and equitable in the circumstances of these parties' relationship. So egregious was the husband's behaviour that, seen in hindsight, the only party who can be regarded as having made a genuine and significant contribution to the welfare of the family (in the broadest sense) is the wife. This is not a case of the husband making a "negative" contribution of any sort – it is a case of his contributions to the welfare of the family being realistically treated as feather light in comparison with the wife's contributions.

133In relation to certain propositions stated in the previous paragraph, I refer to FLA s 43, which is in the following terms:

Principles to be applied by courts

1.The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

•the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

•the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

•the need to protect the rights of children and to promote their welfare;

•the need to ensure protection from family violence; and

•...

2....

134Family violence is defined in FLA s 4AB as follows:

Definition of family violence etc.

1.For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

2.Examples of behaviour that may constitute family violence include (but are not limited to):

a)an assault; or

b)a sexual assault or other sexually abusive behaviour; or

c)...

3.For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

4.Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

Property schedule

135As I have explained, the first step, stage or process – or, alternatively, the starting point – in the property settlement exercise relates to the identification and valuation of the property of the parties at trial. It includes the identification, according to ordinary common law and equitable principles, of the existing legal and equitable interest of the parties in their property.

136On the second day of trial, counsel for the wife handed up an agreed schedule of assets and liabilities. Subject to the comments to be made later in these Reasons, the vast majority of items were agreed and I find that the parties' property and liabilities (as at the date of trial) are as set out below ("property schedule").

Property schedule
Jointly owned assets
1	[Property B]	$750,000
2	[Property E]	$800,000
3	Police & Nurses Account #262	$0
4	[Overseas] Timeshare	$3,000
5	Accor Timeshare	$6,000
Total jointly owned property (A):	$1,559,000
Wife's property
6	NAB Account #793	$70
7	ING Bank Account #086	$2
8	2008 [Honda CRV]	$16,500
9	Furniture, chattels and effects	$4,735
10	Partial property settlement orders made 4 July 2016	$169,000
11	Partial property settlement orders made 12 April 2017	$316,080
12	Superannuation	$118,782
13	Addback: Paid legal fees	$85,216
14	Less: NAB Personal Loan #845	($16,594)
15	Less: NAB Personal Loan #249	($18,064)
16	Less: Coles Mastercard	($444)
17	Less: Citibank Credit Card	($7,406)
18	Less: GO Mastercard	($22)
19	Less: Loan to [Ms Donaldson]	($7,000)
20	Less: Loan to wife's father	($85,000)
21	Less: Estimated CGT payable by wife on sale of one third interest in [Property A]	($35,000)
Total of wife's property (B):	$540,854
Husband's property
22	Police & Nurses Account	$5,000
23	ME Bank Account #761	$0
24	BankWest Account #089	$0
25	BankWest Sanford Money Market Account #182	$0
26	Wesfarmers shares	$21,269
27	2014 [Toyota Prado]	$53,100
28	[Land Cruiser]	$2,500
29	1970 [VW Beetle]	$500
30	Yacht	$250
31	Caravan	$7,500
32	Contents (including $6,000 [furniture])	$29,210
33	[Suburb F] Timeshare	$3,000
34	Superannuation	$1,183,611
35	Addback: Paid legal fees	$81,967
36	Less: Estimated CGT payable by husband on sale of one third interest in [Property A]	($26,000)
Total of husband's property (C):	$1,361,907
GRAND TOTAL (A+ B + C)	$3,461,761

Comments on the property schedule

137I have made no provision for the possibility that the husband may be required to pay compensation to Child C for his abuse. The suggestion that I should do so is inappropriate. Such would be an unacceptable form of speculation. It would clearly be unjust and inequitable to reduce the wife's share (and effectively increase the husband's share) because of some possibility that the husband might be required to pay compensation for his crimes.

138I have included the [furniture] as an asset of the husband, at the value of $6,000 (as determined during the trial).

139In my opinion, the parties' paid legal fees should be added to the property available for distribution between them. Such an approach is entirely uncontroversial: see NHC & RCH (2004) FLC 93-204 at [55]-[60]; see also Harrington & Harrington and Ors (2007) FLC 93-317 at [18]-[19]. Although the manner in which the Court deals with funds used by the parties to pay legal fees is a matter for its discretion, the following observations are of relevance:

(a)As Murphy J recognised in Hayton & Bendle (2010) 43 Fam LR 602 at [127], the payment of legal fees by a party amounts to a premature distribution of property that might otherwise have been available for distribution between both parties in accordance with the Court's ultimate assessment of their property settlement entitlements.

(b)Although the payment of other expenses (including accommodation or living expenses) after separation and prior to trial might also have the effect of removing funds from the property that could otherwise be available for distribution between the parties, legal fees relating to advice dealing with the consequences of a relationship breakdown or anticipated breakdown and family law issues generally, dispute resolution or court processes would not have been paid at all if the parties' relationship had not broken down or was not likely to break down, or if the parties did not have a dispute to resolve or court proceedings to conduct. To that extent, it is unfair to allow one party what could amount to unfettered or almost unfettered access to funds that would otherwise comprise property available to be dealt with pursuant to the provisions of s 79 to further his or her own side of the case or counter or damage the other party's case.

(c)In my opinion, and by way of example only, it cannot be said that funds used by the husband to pay legal fees were generated by him post-separation from his own endeavours (exclusively). To so conclude would be to ignore the effect of the wife's contributions to the welfare of the family after separation and her broader, direct or indirect contributions made during the course of the relationship. A similar argument can be mounted regarding the husband's contributions to funds used by the wife to pay legal fees.

140I am satisfied that both parties should be seen as having an interest in the funds used for the payment of legal fees, whether those funds existed at the date of separation or became available to the parties thereafter.

Preliminary considerations

141Before proceeding further with what might be perceived as the next relevant phase of or process in the property settlement exercise, it is pertinent to record that I do not propose to proceed with that exercise by applying a general assumption to the effect that the parties' rights to or interests in their property should be different from those that now exist. I reject that assumption. In other words, I recognise that the core issue for determination in these proceedings is whether the parties' rights to and interests in the property contained in the property schedule should be altered: see my discussion of the High Court's decision in Stanford above.

142It is also pertinent to record that consideration of the various factors in s 79(4) – including the parties' contributions in all their various guises – does not automatically give rise to a right on the part of either of the parties to have the property contained in the property schedule divided between them by reference to those factors. The "just and equitable" requirement in s 79(2) must be (separately) considered and applied. I am conscious of the need not to conflate the requirements or considerations contained in s 79(2) on the one hand, and s 79(4) on the other.

143As explained above, however, the parties in this case separated well before the commencement of property settlement proceedings. It is readily apparent that the express and implicit assumptions underpinning the property arrangements they made during their cohabitation have been brought to an end by the "severance of the mutuality of the marital relationship". Further, any assumption the parties may have had to the effect that they could change or adjust their property arrangement consensually (as each may need or desire) no longer applies.

Contributions

144Having identified the property available for distribution between the parties, I turn now to consider the next step of or process in the property settlement exercise – namely, the identification and assessment of the parties' contribution in all their various guises.

145In Dickons & Dickons (supra), the Full Court said at [24]-[25]:

There can be little doubt that the classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions", can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

146An assessment of the parties' respective contributions is not a strict mathematical or accounting exercise. It is not always possible to balance 'like with like', in that the parties' different forms of contribution can have very different characteristics and may carry very different weight. Similarly, the timing of the forms of contribution can be telling. In a very broad sense, the exercise is what might be considered an imprecise, macrocosmic one – as opposed to a detailed, microcosmic analysis of the source and destination of each dollar passing through the parties' hands and their every action, inaction or reaction (however small or insignificant).

147It is not in dispute that, at the commencement of the relationship, the husband owned Property B and Property C. It is unclear what the combined value of his assets was at the time, but I accept that it was comparatively significant. It is not disputed that the wife had no assets of value at the commencement of the relationship.

148Both parties worked during the relationship, although the wife took time away from work to care for the children.

149The husband continued his employment throughout the marriage. I accept he worked long hours, and sometimes as many as 80 hours per week.

150The wife conceded that the husband did work around the house and said that "the outside was his domain". I have no doubt, however, that the wife was primarily and predominantly responsible for the care and supervision of the children, and for the performance of the majority of the domestic tasks.

151After separation, the wife went on a total of four cruises. On one of them, she was accompanied by Child C.

152This was a long relationship. Mr Rynne submitted that, but for the husband's conduct in relation to Child C, a finding of equality in relation to contribution (for the whole of the period from cohabitation to trial) should be made.

153On the other hand, Mr Tydde argued (in opening) that an appropriate division of the parties' property available for distribution between them – on the basis of contribution alone – should be 50% to the husband and 50% to the wife. He submitted that this outcome resulted from a holistic approach to the contribution elements. Mr Tydde also argued (see below) that there should be a 5% adjustment in the husband's favour to take account of the s 75(2) factors.

154While it was conceded that the husband's criminal behaviour towards Child C had affected the weight to be given to any contributions he may have made to the welfare of the family, Mr Tydde still maintained that the husband had made contributions to the welfare of the family.

155Since his imprisonment in October 2014, the husband has continued to pay the costs associated with the timeshare and financially supported the parties' sons while they study full-time (including [university] admission fees). He has also paid the rates for the properties and the family's health insurance. The husband also paid legal fees associated with the criminal trial. The husband initially said that the fees totalled approximately $15,000. He said that these moneys were paid from his pension (via his superannuation fund). It seems clear that the husband also paid other sums relating to the criminal proceedings. For example, he said that he paid $175 cash in respect of each "Local Court" appearance.

156Notwithstanding the comments made in the preceding paragraph, I have considerable discomfort with the husband's evidence relating to the overall cost of his legal representation for the criminal proceedings. Relevantly, I am satisfied that he paid significantly more than $15,000 for such representation (which included a five-day trial). In this regard, I note that the husband failed to disclose, or disclose adequately, documents revealing the precise amount he paid to the solicitors who represented him in the criminal proceedings.

157When Mr Rynne cross-examined the husband regarding his failure to disclose financial information regarding the cost of the criminal proceedings, the husband responded by shrugging. As I have said, the husband's disclosure in relation to post-separation expenditure was inadequate. Put shortly, the husband failed to adequately explain the fate of funds that were available to him.

Conclusion regarding the parties' respective contributions

158As I have said, the Court's assessment of the parties' respective contributions is not a strict mathematical or accounting exercise. I accept that the husband's initial financial contribution should not be ignored. On the other hand, the husband's course of conduct discussed above under the general heading of the Kennon factors, whether or not bolstered or reinforced by the principles contained within and extracted from Stanford, has a very significant impact on the manner in which my discretion is to be exercised. But for the factors and principles discussed above, I would have concluded that something between 52.5% and 55% of the overall property pool should be awarded to the husband on the basis of his contributions from the commencement of cohabitation to the date of trial, and the balance to the wife on the same basis. When regard is had to those factors and principles, however, I am satisfied that an appropriate exercise of discretion requires that something between 55% and 57.5% of the overall property pool should be awarded to the wife on the basis of her contributions from the date of commencement of cohabitation to the date of trial, and the balance to the husband on the same basis. As it would be intellectually dishonest of me to choose either the higher or lower figure within the range I have specified, I shall fix the midpoint – being 56.25% – as being appropriate.

159In G & G [2004] FamCA 1179, the Full Court said (in relation to an exercise of judicial discretion such as that which I have performed in the previous paragraphs):

73.…[Words] will often (perhaps always) fall frustratingly short of an incontestable explanation for any particular exercise of discretion – or, for that matter, for a finding by an appellate court that a particular exercise was wrong. All the relevant factors can be described, with modifiers in abundance, but still the analysis will beg the question, "Yes, but why that figure and not another?" or "Why was that the range rather than some other parameters?"

74.The deficiency is unavoidable. When there are a number of "right" results available, the explanation for the choice of one over others can never be incontestable. Nor can the reasons for saying that a result is outside a range be beyond challenge. The very nature of a discretionary exercise that ascribes mathematical consequences to a batch of actions and events amenable only to descriptive evaluation, means that it is impossible to place beyond argument the explanation for all the steps to the ultimate selection of result.

…

81.(In) respect of virtually every exercise of discretion, by definition, it will not be possible to deliver a judgment which excludes reasoned argument that another result was available.

160For what it is worth, I concur with the Full Court’s view as expressed in the passage from G & G (supra) quoted above. The "balancing exercise" the Court must perform is rarely an easy or non-contentious one. It is also worth noting what Coleman J, sitting as a single judge exercising appellate jurisdiction, said in a well‑known passage from Steinbrenner & Steinbrenner [2008] FamCAFC 193 – at [234]:

Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.

Section 75(2) factors

161So far, in considering the question of property settlement, I have dealt with the identification of the parties' property and related issues. The Court has power to make an adjustment to a party's property settlement entitlement based on such contributions in order to take account of, among other things, both parties' respective means and needs. The Full Court has been critical of shorthand terms being used to describe this step in the property settlement exercise, preferring to refer to it simply as "the section 75(2) factors": See Clauson & Clauson (1995) FLC 92-596. In essence, section s 75(2) is concerned with the process of arriving at a just and equitable result: see, in that regard, Waters & Jurek (1995) FLC 92-635.

162I turn now to consider the s 75(2) factors. The headings I have used are simply a shorthand way of referring to each relevant consideration. I have either not referred to, or only mentioned briefly, factors which have no or minimal relevance to the present case.

Age and state of health

163The husband is 65 and the wife is 60.

164The husband has been diagnosed with a medical condition. At the time of trial, the prognosis for his condition was unclear.

165The wife has suffered depression both during and after the relationship. She is otherwise in good health.

Income, property and financial resources, earning capacity and capacity for employment

166As at April 2016, the husband was still incarcerated. It is not clear when he will be released, having had his application for parole denied.

167It is uncontroversial that the husband's previous employment is no longer available to him because of his redundancy. Prior to that, he had worked in the same employment since the age of 15.

168It is clear that the husband will struggle to find work after leaving prison, both as a result of his conviction and his age. During the course of cross-examination, however, the husband acknowledged that there was plenty he could do, but that, after 44 years of work, he felt entitled to "a little bit of sun".

169The wife is a librarian, but had to reduce her workload to four days a week in September 2015 as a result of the stress of these proceedings (and all which preceded them). Her total salary is $2,341 net per fortnight. She also receives rent from Property B, being $257 per week.

170The husband has his superannuation entitlements, which have increased dramatically due to his redundancy payment being paid into the fund. Since the time of separation, the husband has drawn on his superannuation to purchase a number of things, including a new car.

171Currently, neither party has a significant income – although I accept that the wife's income is likely to exceed that of the husband in the short term. In the medium to long term, however, I am satisfied that the husband's earning capacity is not dissimilar to that of the wife. Whether he elects to exercise his earning capacity is a matter for him.

Children under 18

172There are no children under 18 years.

Financial commitments

173The wife was paying rent of $490 per week, but proposed to relocate to Property E as it was vacant. The Court does not have any further evidence in relation to this matter. According to her financial statement, her total weekly expenditure is around $2,439.

174The husband's financial commitments, in terms of his day-to-day living expenses, are minimal: he is a prisoner. This situation will change when he is released.

175Still, he has continued to pay the rates and insurance owed in respect of both properties, as well as the private health insurance for the family. In his financial statement sworn 31 July 2015, he lists his average weekly expenditure as $562.

Responsibilities to support any other person

176Mr Rynne submitted that, as a result of the husband's behaviour towards Child C, the wife will be called upon to provide significant (and ongoing) support to the three children of the marriage, and not just Child C.

177It was the wife's evidence that all three children have suffered considerably since their father went to prison. At the time of trial, the younger of the two boys had admitted himself to [Hospital A] – due to the stress he was experiencing.

178At the time of trial, Child C was working at Company B. The wife said, and I accept, that Child C was struggling emotionally – although I acknowledge that there was almost no evidence led as to either Child C's condition or any long-term effects on her of the husband's abusive behaviour.

179The husband does not have an obligation to support any person other than himself.

Eligibility for pension, allowance or benefit

180The husband is in receipt of a pension, paid from his superannuation fund. The gross annual amount is $47,829.

181Although this subject can probably be dealt with under a number of the s 75(2) headings, I note at this stage that the husband alleges the wife will receive an inheritance from her father. According to the wife and her brother, however, this is by no means a certainty: for example, there is a total of five siblings, one of whom is disabled and will require assistance from their father's estate. I accept their evidence in this regard.

182Thus, although it is possible (or even probable) that the wife will inherit funds from her father, it is difficult to give significant weight to this factor. It is unclear how much she is likely to inherit and when she is likely to receive it. I acknowledge, however, that the wife's brother said that the current value of their father's estate was approximately $500,000 – which is to be "divided five ways" in the event of his death. As a consequence of his dementia, the wife's father is unable to change his will. For all that, he appears to be in comparatively good physical health and could conceivably live for an extended period.

Reasonable standard of living

183I acknowledge that both parties are entitled to a reasonable standard of living.

184Each party wishes to retain one of the properties, ensuring that they will maintain a residence.

185Having regard to their respective earning capacities and the orders that I propose to make in these proceedings, I anticipate that each will enjoy a reasonable standard of living.

Maintenance in the context of education or retraining

186Mr Rynne submitted that the husband could return to work following his release from prison, if he chose to do so. The husband did not dispute this proposition – although he would be required to retrain. Given his age, state of health and the uncertain date of his release, I do not consider this to be a relevant consideration.

Other relevant considerations

187As I have discussed elsewhere in these Reasons, I have made no provision for the possibility that the husband may be required to pay compensation to Child C for his abuse.

188Mr Tydde suggested that, in effect, the husband has been "punished enough" for his behaviour towards Child C. He referred to the fact that the husband had been imprisoned and that he had lost his relationship with Child C. He also said that the husband will or will likely be placed on the Community Protection Offender Register under the Community Protection (Offender Reporting) Act 2004 (WA) for a period of 15 years. He added, somewhat bravely, that the husband should not be "hit further" for his "bad behaviour". I reject Mr Tydde's submissions in this regard. The Court is not concerned with "punishing" the husband in any relevant respect; it intends to do no more (and no less) than make orders that it perceives are just and equitable within the meaning and contemplation of that term in s 79(2). I have already described the "pathway" to the making of just and equitable orders, as I understand it to be. As long, broad and winding as the pathway may appear, it does not traverse territory properly considered as being within the concepts of punishment or retribution. By the same token, it does not pass through a landscape in which amorphous concepts such as sympathy and compassion predominate, except to the extent that those qualities might properly and fairly inform or fall to be considered under the general rubric of justice and equity (the metes and bounds of which cannot be charted). So that there should be no misunderstanding, however, I confirm that I have given no consideration to the concepts of punishment, retribution, sympathy or compassion. I have followed the law as I have described it above, and exercised my discretion in accordance with established principles.

Conclusions regarding s 75(2)

189In my opinion, the most significant of the s 75(2) factors are –

a)the fact that the wife is likely to be primarily responsible for the ongoing emotional care and support of Child C, and perhaps the parties' other children as well; and

b)my finding to the effect that the parties' earning capacity is very roughly equivalent in the medium to long term.

190I have not ignored any of the other matters referred to under the heading Section 75(2) factors.

191Having regard to all the evidence before me, I am persuaded that it is appropriate to make an adjustment on the basis of the s 75(2) factors. I am so persuaded because the purpose of the s 75(2) adjustment is to assist the Court in the process of arriving at a just and equitable result. To refuse to make an adjustment in the present proceedings would be to run the risk of making orders which are neither just nor equitable.

192I emphasise that I have not double-counted the husband's abuse of Child C and its ramifications and sequelae. Put as simply as possible, my consideration of this subject under the general heading of the parties' respective contributions requires the Court to look backwards (or retrospectively) at the contributions each party has made between the commencement of their relationship and the date of trial. It also requires the Court to look forwards, or prospectively, when considering the s 75(2) factors – although not exclusively forwards or prospectively. FLA s 79(2) directs the Court not to make an order for alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. I have discussed the "just and equitable requirement" above, including within the context of the High Court's decision in Stanford. This requirement permeates all aspects of the Court's fact-finding, reasoning and discretionary processes.

193Clearly, the Court's finding to the effect that the wife is likely to be primarily responsible for the ongoing emotional care and support of Child C, and perhaps the parties' other children as well, is a finding most comfortably conceptualised within the s 75(2) factors – even though it arises out of the same factual matrix (being the husband's appalling behaviour towards Child C) as that which was taken into account under the general heading of contributions. A finding of a preliminary or notional division of the parties' property on the basis of findings relating to their respective contributions is, in essence, a historical finding based on evidence of the parties’ contributions to the point of trial. No "adjustment" is necessary or appropriate at that point. Findings in relation to the s 75(2) factors become adjectival considerations relevant to the taking into account of the applicable s 75(2) factors, and inform the Court's discretion as to whether some form of "adjustment" is required to the preliminary or notional division of property on the basis of contribution. Thus, and by way of example only, evidence to the effect that a party to a marriage was gravely ill and incapable of making financial contributions in the form of income, or realistic contributions to the welfare of the family, for an extended period of time between the commencement of cohabitation and the time of trial, is not simply relevant to findings relating to the parties’ respective contributions (in all their various guises). Instead, and together with other evidence relating to that party's current state of health, earning capacity (or lack thereof) and needs in the broadest sense, it is also relevant under the general heading of the s 75(2) factors (and when seeking to avoid the making of orders which are not just and equitable).

194On balance, and all the circumstances, I conclude that an appropriate adjustment to the parties' entitlements on the basis of contribution alone – which adjustment is to take account of the considerations under the general heading of the s 75(2) factors (and to avoid the making of orders which are not just and equitable) – is to increase the wife's entitlement by 5% (and decrease the husband's entitlement by a corresponding amount). I recognise, of course, that such an adjustment creates a "differential" between the parties of 10%.

195It follows that the overall distribution of the property between the parties should be on the basis of 61.25% to the wife (being 56.25% in respect of contribution and 5% in respect of the s 75(2) factors), and the remaining 38.75% to the husband.

196Clearly, the observations I have already quoted from G & G (supra) and Steinbrenner& Steinbrenner (supra) also adhere to the exercise of judicial discretion I have just performed in relation to the s 75(2) factors.

Just and Equitable?

197As indicated above, the High Court in Stanford explained that the consideration of the various factors in s 79(4) – which includes reference to s 75(2) factors – does not automatically give rise to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The requirement contained in s 79(2) must be considered and applied.

198In this case, and as discussed above, the parties separated before the commencement of property settlement proceedings. It is arguable, therefore, that the express and implicit assumptions that underpinned the property arrangements that they had made during their cohabitation had been "brought to an end by the voluntary severance of the mutuality of the marital relationship". It follows that it is just and equitable for the Court to make a property settlement order. That order is to be determined by applying s 79(4), although, clearly, the form of the order must also be just and equitable.

199I would add that both parties conceded that it would be just and equitable for the Court to make a property settlement orders.

200In any event, I propose to (metaphorically) step back and consider whether the outcome achieved by my consideration of the parties' contributions and the s 75(2) factors has brought about a just and equitable result.

201The Full Court has cautioned against assessing the s 75(2) factors in percentage terms, without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is "the critical issue": see Clauson & Clauson (supra).

202If the wife is entitled to 61.25% of the property available for distribution between the parties, then she is entitled to property to the value of $2,120,329 (being 61.25% of $3,461,761). The net value of the property currently in her possession or under her control is $540,854, as is apparent from the property schedule. It follows that if the wife is to retain the items listed in her section of the property schedule, together with Property B (as she has sought), then the husband must pay to her $829,475 – being the "shortfall" between $2,120,329 and $1,290,854 (which, in turn, is the total of $540,854 and the value of Property B: $750,000).

203In the present case, the s 75(2) adjustment equates to $173,088 (being 5% of $3,461,761). I am satisfied that such an adjustment is proper – even taking into account that it creates a "differential", as it were, of 10% (or $346,176). Indeed, I am also satisfied that the adjustment is proper when regard is had to the difference between the wife's overall entitlement (being 61.25%) and the husband's overall entitlement (being 38.75%), which difference equates to 22.5% of the property (or $778,896) in the wife's favour. In my opinion, such a result is just and equitable.

204I am very conscious that justice and equity must be done to both parties, and I am satisfied that the split that I have proposed achieves that result. I would add that, even if reasonable minds might differ as to the actual percentage split on the basis of contribution alone and the appropriate s 75(2) adjustment, I am more than satisfied that a final, overall division of the parties' property between them on the basis of 61.25% to the wife and 38.75% to the husband is an outcome that is just and equitable in all the circumstances.

Orders

205It is apparent from the property schedule that the wife is to receive the items under the heading Wife's property in the property schedule, being items #6 to #21 (inclusive). In addition, the wife is to receive Property B, being item #1 in the property schedule – and I propose to order the husband to transfer his right, title and interest in Property B to the wife.

206I also propose to order that the husband pay the wife $829,475 ("the Payment") within 90 days.

207Subject to the Payment, the husband will retain the items under the heading Husband's property in the property schedule, being items #22 to #36 (inclusive). In addition, and again subject to the Payment, the wife is to transfer to the husband Property E (being item #2 in the property schedule), together with items #3 to #5 (inclusive) in the property schedule.

208Until the husband has complied with his obligations referred to above (including in relation to making the Payment), the husband is to be restrained from reducing his Company G Superannuation entitlements (property schedule item #34) below the amount of $850,000.

209Further, if the husband fails to comply with his obligations, Property E is to be sold and the net proceeds of sale paid to the wife in part satisfaction of the Payment.

210Property E is to be charged to secure the husband's performance of his obligations pursuant to the relevant orders.

211I propose to hear counsel in relation to the precise orders necessary to give effect to these Reasons.

Costs

212In relation to the issue of costs, I propose to make the order/s set out below.

Costs

The wife have leave to apply for costs in the following manner:

(1)In the event that the wife proposes to seek costs from the husband, the wife must – within 28 days – file and serve a minute of orders sought as to costs, together with any written submissions that she wishes to make ("costs application").

(2) If –

(a)a costs application is made; and

(b)the husband wishes to oppose the costs application,

the husband must – within 28 days of service on him of the costs application – file and serve a minute of orders sought as to costs together with any written submissions that he wishes to make ("costs response").

(3)The written submissions forming part of the costs application and the costs response must not exceed a maximum of 10 pages in each case.

(4)In the event that either party seeks to make oral submissions with respect to costs, that party must – within 14 days of service of the costs response on the wife – write to the Court requesting that the matter be listed for a special appointment and setting out:

(a)the available dates for the parties to appear; and

(b)the likely length of the special appointment.

(5)Prior to writing to the Court to request the said special appointment, the parties must confer with respect to availability and the likely length of the said special appointment.

(6)In the event that neither party seeks to make oral submissions with respect to costs, or in the event that the husband elects not to file a costs response, any costs application be thereafter determined on the papers.

I certify that the preceding [212] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
26 September 2017