MANSOUR and MOHAVED - [2017] FCWA 94

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MANSOUR and MOHAVED [2017] FCWA 94

CORAM: WALTERS J

HEARD: 21 & 22 DECEMBER 2015

DELIVERED : 1 AUGUST 2017

FILE NO/S: PTW 5598 of 2012

BETWEEN: MS MANSOUR
Applicant
AND
MR MOHAVED
Respondent

Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests under the Family Law Act 1975 (Cth) – Where husband did not attend the trial – where husband disposed of assets and consistently failed to comply with orders – where parties have property in a non-reciprocating jurisdiction – where significant imbalance between parties' income and earning capacities – where initial contributions substantially favour the wife

FAMILY LAW – CHILD MAINTENANCE – where the wife seeks child maintenance – where the Child Support (Assessment) Act 1989 (Cth) does not apply because the husband resides in a non-reciprocating jurisdiction – husband ordered to pay child maintenance

FAMILY LAW – SPOUSAL MAINTENANCE – where wife seeks spousal maintenance in addition to property settlement entitlement – case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms Bodey
Respondent: No appearance

Solicitors:

Applicant: DCH Legal Group
Respondent: Self-Represented Litigant

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

B & B [2006] FamCA 883
Best & Best (1993) FLC 92-418
Bevan & Bevan (1995) FLC 92-600
Bevan & Bevan [2013] FamCAFC 116
Bonacci & Bonacci [2012] FamCAFC 15
British South Africa Co v Companhia de Mocambique [1893] AC 602
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
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Kennon & Kennon (1997) FLC 92-757
Khademollah & Khademollah [2000] FamCA 1045
McMahon & McMahon (1995) FLC 92-606
Mitchell & Mitchell (1995) FLC 92-601
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
OSF & OJK (2004) FLC 93-19
Potter Broken Hill Pty Ltd (1906) 3 CLR 479
Robinson and Willis (1982) FLC 91-215
Russell v Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Stevens & Stevens (2005) FLC 93-246
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

1[Ms Mansour] ("the wife") was born in [Country A]. In August 1996, when she was 16 years old and still in high school, she married [Mr Mohaved] ("the husband"). The husband was also born in Country A. At the time of the marriage, he was a student at university in [City T] and lived in a dormitory there. When the wife finished high school, she started a [university] degree.
2The parties commenced cohabitation – in university accommodation – about a year after the marriage.
3The husband and wife stayed in Country A, studying, working and acquiring property, until moving to Perth, Western Australia in 2006. They later became Australian citizens. After a time, they went [overseas] for the husband's employment.
4The parties' daughter, [A], was born in 2011 in [Country B].
5The marriage broke down in August 2012, and separation occurred contemporaneously with the wife's return to Australia.
6Not long afterwards, the wife commenced proceedings in this Court. She sought parenting orders. Litigation about various aspects of the parties' affairs has been fairly constant since then – both in Australia and in Country A.
7This judgment deals primarily with the issues of property settlement and spousal and child maintenance. It also deals with certain other issues.
8At the time of separation, the husband drew down on a mortgage over the parties' home in Perth and removed substantial cash overseas. In late 2014, the wife obtained an order that the husband return $500,000 to an Australian bank account ("the repayment order"). The husband engaged local solicitors to act on his behalf in these proceedings.
9At about the time the repayment order was made, the husband provided a total of about $78,000 to his solicitors for legal fees. The wife then brought proceedings for contravention of the repayment order, and an application against the solicitors to disgorge the funds they had received.
10The wife's application for alteration of property interests and spousal and child maintenance came on for trial on 21 December 2015. Shortly before that date, the husband ceased to instruct solicitors and made a request to participate at the trial by video-link. This request was adjourned to the trial date. The contravention application, and the corresponding application against the husband's former solicitors, had also not been disposed of. As a result, the wife's solicitors notified the husband's former solicitors of the trial date. Dr Dickey QC then appeared for the solicitors.
11Following discussion between Dr Dickey and the wife's legal representative, Ms Bodey, the wife's application against the husband's former solicitors was withdrawn.
12The husband did not appear at the trial, either personally or by a legal representative. The Court understood that he was in [Country C]. Ms Bodey did not oppose the husband appearing by video-link, but attempts to contact him were unsuccessful. For reasons I then gave, I allowed the trial to proceed. Some material filed by the husband (comprising a recently updated financial statement, three affidavits and papers for the judge) was received as evidence in support of the husband's case.
13I doubt that the contravention application was strictly before me. In any event, Ms Bodey did not make any submissions in relation to it. In the circumstances, I have resolved to adjourn it to another date.
14The issue of costs relating to those matters which remained before me was stood over until after delivery of the orders and the publication of these Reasons. Ms Bodey acknowledged that this was an appropriate course of action.

Abbreviations and other terms used

15In 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" and "the husband" – and I mean them no disrespect by doing so – because it is less confusing than referring to them as the applicant and the respondent;
c)although the law now refers to a child "spending time" with a person with whom the child does not live, I have used the obsolete term "contact" from time to time – because it is both more convenient and less grammatically challenging to do so;
d)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"); and
e)I have referred to the Family Law Act 1975 (Cth) as the "FLA".

Law on property settlement claims

16The 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

17Until 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.
18In 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.
19The 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.
20It 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.
21The 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…

22My 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).

23At 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

24In Stanford (supra), the High Court challenged the validity of the approach described above.
25The 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].
26Of 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.

27In 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. (Emphasis added.)

28The 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.

29The 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]".
30After 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

31The 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.
32I 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".

33I 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".
34As discussed in my decision in Fitzgerald-Stevens & Leslighter (supra), and assuming a "step" or "stage" or "process" 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.

Outline of these Reasons

35Subject to my discussion of the law referred to above, these Reasons address the following matters (in the order indicated):
a) history of contributions;
b) assets/liabilities;
c) assessment of contributions;
d) relevant s 75(2) factors;
e) terms of any proposed orders for alteration of property interests;
f)the effect of any proposed orders upon the earning capacity of either party to the marriage;

g) whether any proposed orders are just and equitable; and
h) spousal and child maintenance.

History of contributions

36In determining the facts relevant to this topic, I have placed little or no weight on the husband's material because, among other things –
a)he did not make himself available for cross-examination;
b)he has removed funds from the jurisdiction (and although he has agreed those funds should be returned, he has so far failed to do so);
c)as discussed below, there are some unlikely scenarios contended for in his material;
d)another instance of removing an asset from the jurisdiction is evidenced; and
e)he has divested himself of some assets.

37In any event, I accept the wife's evidence, which was not challenged by cross-examination. In the circumstances, and even though there is much factual disagreement in the material, I have elected (by and large) not to restate the husband's version of events.
38At the commencement of the relationship, the husband had no assets of significant value.
39The wife was an only child. Her mother ("M") had died a few months before the parties' marriage. M's family was wealthy, and M herself had worked as a [scientist]. As a consequence, M's estate was significant. The wife inherited all M's jewellery, including gold pieces and items with rare and precious stones. The wife also inherited 58.3% of a residential property. The wife had other jewellery, which her father ("F") had given to her on special occasions. Upon their marriage, F gave the parties about $30,000 (the wife converted all figures into Australian dollars). This sum was used to purchase household furniture. F gave the parties another $10,000 on their wedding night.
40Not long after the marriage, some of the furniture purchased from the moneys supplied by F was sold for $13,000.
41Each month from September 1997 until at least June 2003, F deposited, on average, several hundred dollars into the husband's account to assist with the parties' living expenses.
42In 1998, the parties moved to rented premises. Later that year, they both started work: the husband as an [architect], and the wife as a part-time, [secretary]. The wife gave the money she earned to the husband, as she did not have a bank account.
43In 1999, F purchased a property for the parties to live in. The property was [in City T] ("[Property A]"). The purchase price of Property A was approximately $173,000. It was registered in the wife's name.
44At about the same time, the husband completed a Masters degree in [Architecture].
45In early 2000, the wife received $24,900 – partly from M's estate, but including an entitlement of F in the estate (which F had foregone). These moneys were paid into the husband's bank account.
46In late 2001, the wife began a Bachelor degree.
47In 2003, the husband established his own company, but also worked as a consultant for another company. In the following year, the wife began some work in the husband's business as [an] assistant. Her salary of approximately $600 a month was paid into the husband's bank account.
48In 2004, and at the husband's instigation, a residence was purchased for the parties [in] City T. ("[Property B]"). The purchase price of Property B was approximately $300,000. The husband asked the wife to sell Property A to finance the purchase. The wife refused. As a result, and for far from the first time, the husband assaulted the wife. She then signed the bill of sale for Property A. The purchasers paid the purchase price to the husband. Subsequently, F confronted the husband. The husband, the wife and F then signed a bill of sale that F had arranged. The effect of the bill of sale was that the Property B was to be owned by the husband and the wife jointly.
49According to the husband, the wife maintained her refusal to sell Property A, thereby forcing him to borrow from his family in order to purchase the Property B. He also asserted that the wife sold the Property A in the following year, and that she kept the net proceeds of sale for herself. In all the circumstances, and taking into account the terms of the bill of sale and the wife's conduct in respect of other moneys she received, I am not satisfied that I should accept the husband's evidence in relation to these matters.
50In 2005, the wife was offered a scholarship to study a Masters [degree] in Country A. She accepted, but before she could begin her studies the husband was offered, and accepted, a scholarship from [University A] in Perth, Western Australia. F then gave the husband $30,000 – to be put towards further study by the wife in Perth.
51In April 2006, the parties relocated to Australia. They retained Property B, which later was rented out. In Perth, they rented accommodation for a short time. The husband began studying for his PhD and soon obtained work with [Company A]. In July 2006, the wife began working as [an] assistant at [University B]. This was voluntary, unpaid work.
52In August 2006, the husband purchased an apartment in Perth ("[Property C]"). The purchase price was $550,000. It was purchased in the husband's sole name. The deposit for Property C came from F's gift of $30,000. The balance of the purchase price, being $517,776, was borrowed from the ANZ Bank. This borrowing was secured by a mortgage (in joint names) over Property C. Property C was rented out for $500 per week – which moneys were received by the husband.
53In November 2006, the wife began paid work as [an] assistant at University B, at a salary of $45,000 per annum. At the beginning of 2008, however, she ceased work and began a Master's degree. At that time, the husband was receiving payments from his employer of approximately $108,000 per annum.
54While on a visit to Country A in late 2008, the husband told F that he wished to sell Property C and buy a house in Perth. He said it would be necessary to use the balance of the wife's inheritance in order to do so. Thus, arrangements were made for the wife's uncle to purchase the wife's and F's shares in the inherited house, whereupon F gave the wife his share of the purchase price. As a result, the wife received a total of approximately $300,000. Most or all of these funds were made available to the husband. He banked the cheques in Country A.
55In January 2009, the parties purchased a house in [Perth] ("[Property D]") for $780,000. The purchase price was met from the funds from the wife's inheritance and F's gift, together with $480,000 borrowed from the ANZ Bank (and secured by mortgage). The parties were registered as joint owners of Property D.
56In November 2009, the wife completed her Masters' degree. She subsequently obtained a scholarship of $30,000 to complete her PhD at University A.
57The parties became Australian citizens in 2010.
58The husband says that around this time he was struggling to meet the mortgage payments on Property C, so he borrowed $150,000 from his family. I do not accept his evidence in this regard.
59In September 2010, the husband and wife moved to Country B for the husband's work. Property D was rented out in April 2011.
60The wife obtained employment in Country B at an annual salary of $60,000. When the husband changed employers in April 2011, however, she gave up this employment.
61A was born [in] 2011.
62In January 2012, the family moved to [Country D] for the husband's work. Then, in early March, the husband said they were going to Country A for a holiday. He removed all the wife's jewellery and gold from a safe and said he was going to place it in a safe at his work. The wife has not seen it since. The parties then went to Country A, taking A with them.
63The husband returned to Country D, saying he had to attend an urgent meeting. After a time he contacted the wife and said that the marriage was over and he would not be returning to Country A – but that the wife and A had to stay there.
64Wishing to return to Australia, the wife then searched for her and A's passports, but could not locate them.
65At or around this time, the husband paid $279,890 in reduction of the mortgage over Property D. He also sold Property C for $570,000. He arranged to pay the net proceeds of $227,523 into the offset account. Thereafter, he arranged for $215,256 from the offset account to be paid towards the mortgage (reducing the debit balance to $100,000).
66In late June 2012, the husband returned to Country A. As a result of various circumstances that then developed, the wife applied to [a Country A] Court for her dowry. This led the husband to say that if the wife wanted to leave Country A with A, she had to first assign to him all of her rights in Property B and Property D. He also required the wife to give him a power of attorney permitting him to deal with any of her rights in any asset elsewhere. On 6 July 2012 – being very shortly after the husband's demand – the wife signed two bills of sale: the first stating that she had received half of Property B as her dowry on that day, and the second transferring her half interest in Property D to the husband. In addition, it declared the earlier bill of sale (under which the wife acquired a half interest in Property B) void. The husband says that at about this time he transferred the other half of Property B to his mother, in part-payment of some debts he allegedly owed to his family.
67The parties and A left for Country B on 7 July 2012. The husband then took a connecting flight to Country D, leaving the wife and A in paid accommodation in Country B. After five days, the husband brought them to Country D.
68At about this time, the wife received notice that she could no longer defer her scholarship and needed to return to Perth. On 27 August 2012, the husband drew down $490,000 ("the Funds") on the mortgage over Property D and deposited it into the offset account. The wife arrived in Australia the next day. On 29 August, the wife telephoned the husband to say she wanted a divorce and that she and A would not be returning. On 31 August, the husband transferred the Funds to his Citibank [overseas] account. The husband says he then transferred the Funds to his father's account in Country A, to repay past loans from his family to the husband and wife.
69Upon discovering that the husband had withdrawn the Funds, the wife drew down the balance available of $25,000 (according to her affidavit, but referred to as $33,000 in her statement of financial circumstances). She used these moneys to buy a motor vehicle and rent a residence.
70The wife gave F authority to continue the Country A proceedings for her dowry. During these proceedings, a document was obtained that showed that on 25 July 2012 (that is, while the parties were in Country D, and not long before separation), the husband had transferred 4 properties in [City K, Country A], to his father. The wife had previously been aware that the husband may have had interests in other properties but was not aware of any details.
71In his papers for the judge from April 2015, the husband lists the following under the heading "ISSUES TO BE DETERMINED":
f. [The wife] has argued that I still own several properties in [Country A], however, these properties were purchased and sold several years ago.

72In his affidavit filed 17 June 2015, however, the husband referred to the [City K] properties for the first time. He acknowledged that they were in his name, but asserted that he held them as trustee for his father. I do not accept this explanation, which I regard as a dissemblance. I find, instead, that the husband holds the beneficial interest in the properties. The admitted registration of the properties in the husband's name comprises evidence supporting the conclusion I have reached in this regard.
73The wife's application for her dowry was heard in August 2013. The Country A Court held that she was not entitled to receive a dowry because of the transfer to her of a half-interest in Property B (which transfer was signed on 6 July 2012). The wife appealed this decision but the appeal was dismissed.
74In September 2013, the wife obtained $10,000 from the Uni Superannuation Fund, on the basis of hardship.
75In mid-2014, the wife received disclosure of documents relating to the Funds. Several of these documents were allegedly statements from [a] Bank in Country A, evidencing a transfer of the Funds to the husband's father on 3 and 4 October 2012. The wife had her solicitors contact the bank, which confirmed that it had not produced the statements. The wife then commenced proceedings against the husband and his father for creating a forged document. The wife attached to her affidavit a letter dated 18 November 2014 from the relevant Country A Court to her Country A lawyer, confirming the Court's finding that the bank statement was indeed forged. The wife says, however, that the criminal proceedings against the husband and his father were subsequently dismissed by the Country A Courts – which noted that the forged documents were not produced or used in Country A.
76In November and December 2014, this Court made orders transferring the husband's interest in assets in Australia to the wife. The orders were made by consent. A further order was made requiring the husband to return $500,000 to Australia forthwith.
77In or about November 2014, the wife lodged an application in [a] Country A Court – seeking the transfer to her of the husband's half interest in Property B. She sought orders to this effect on the basis that the husband had received money from the sale of Property A and used it for the acquisition of Property B. That application was determined on 22 October 2015. According to the wife, the Court ordered that the husband transfer a half interest in Property B to her.
78I am satisfied that the wife undertook all household chores during the marriage – without any substantial assistance from the husband.
79She has also been A's primary (and predominant) carer throughout A's life. She deposes – and I accept – that her homemaking and parenting duties were made more onerous as a result of the husband's physical and verbal violence against her (details of which are provided in her affidavit).
80After separation, the husband continued working in Country D until April 2014. He met any shortfall of expenses in relation to Property D. He also travelled to Perth approximately once per month to spend time with A. He then secured a contract with [Company B], [Country E] in June 2014, pursuant to which he was to be paid about $18,700 per month, plus allowances for housing and transport. His bank statements show that – as at May 2015 – he was receiving about $29,270 per month. In November 2015, the husband obtained work in Country C, at an annual salary of about US$84,000.
81After separation, the wife received no child support until February 2013. Thereafter, the husband began paying some child support, although the amount fluctuated. The wife says that the amount ranged from $115 per week to $230 per week, although in some months he did not pay anything.
82In or about January 2015, the husband began paying regular child support of approximately $1,000 per month. The wife says this continued for a few months, but that he then lowered the amount to $500 per month.
83On 21 August 2015, the husband wrote to the wife informing her that he was increasing his child support payment to $1,500 per month. He then paid the wife $4,500, saying that he was paying his child support in advance until December 2015. At the time of trial, the husband was paying child support at the rate of $230 per week.

Property schedule

84As 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.
85Subject to comments to be made later in these Reasons, I find that the parties' property and liabilities (as at the date of the trial) are as set out and identified in the schedule set out below ("property schedule").

Property schedule
Husband	Wife
*Assets*
1	[Property D]	$850,000
2	[Property B]	$330,000
3	[City K, Country A Property 1]	$69,440
4	[City K, Country A Property 2]	$78,400
5	[City K, Country A Property 3]	$80,000
6	[City K, Country A Property 4]	$70,400
7	[Hyundai i30]	$3,500
8	Furniture and contents in storage	$4,000
9	Personal effects	$1,500
10	Wife's jewellery and bullion	$150,000
11	Personal effects	$25,000
12	Bankwest Student Account	$132
13	ANZ Cheque Account	$3,170
14	[Country E Bank]	$918
15	Funds repayable by the husband pursuant to order.	$500,000
16	Funds withdrawn from mortgage by wife (less [Hyundai], already included)	$29,500
17	BT Super (from husband to wife, pursuant to order)	$74,281
18	Unisuper	$3,100
19	Wife's paid legal fees (add back)	$74,408
20	Husband's paid legal fees (add back)	$208,737
Total Assets:	$1,016,065	$1,540,421
*Liabilities*
21	ANZ home loan	($551,755)
22	Wife loan from [Mr Mansour]	($190,000)
23	Wife loan from [Ms M]	($10,000)
24	Wife loan from [Ms G]	($20,750)
25	Wife loan from [Ms I]	($20,480)
26	Wife - Legal Aid	($5,000)
27	Wife - ATO	($2,648)
28	[S]torage	($1,639)
Total Liabilities:	($802,272)
Net Assets	$1,016,065	$738,149
GRAND TOTAL	$1,754,214

Comments on the property schedule

86The evidence about the ownership of Property B presents some difficulties, but it is likely that the wife is presently entitled to a half interest. If not, the husband is entitled to that half interest. On the husband's statement of financial circumstances, he asserts that he owns 50% of Property B, with a value of $260,000. The wife's case is that Property B has a value of $330,000 – half of which is $165,000. Again, her case is that the parties each have a half interest in Property B (and that the husband's mother does not have an interest in it). In the circumstances, I have adopted the wife's value. Further, and even if the husband's mother is the legal owner of the apartment, I am satisfied that it should be included in the asset pool as an asset of the husband. On the basis of the evidence that I accept, he disposed of (or attempted to dispose of) his interest otherwise than for value. For the same reason, I include the City K, Country A properties.
87I have included the $500,000 that the husband has been ordered to repay as an asset, because I do not accept his evidence regarding its alleged disposal. I have attributed it to the wife, though it has not yet been received. The husband has been restrained from dealing with the account, so that when the order is complied with the moneys will come under the wife's control. I note that, in his affidavit filed 17 June 2015, the husband speaks of wanting to repay the sum, but being frustrated in doing so by the wife's proceedings in Country A over Property B. The husband argues that he is unable to repay the moneys unless Property B is sold. It seems to follow that, if orders of this Court result in him being in a position to deal with Property B, then the alleged impediment to repayment of the $500,000 will be removed.
88I have included as an asset the amount withdrawn by the wife from the offset account at or around the time of separation (less the value of the car purchased from those funds – which has been included in its own right).
89I have excluded an account with an insignificant balance which appeared on the wife's list of assets. I accept that the account is held by the wife as trustee for A.
90In my opinion, the parties' paid legal fees should be added to 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 related 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.
d)I 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.

91I have included the bank debt secured over Property D as a liability of the wife because she is entitled to the property – and the mortgage encumbers it.

Preliminary considerations

92Before 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.
93It 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.
94As 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 had 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 arrangements consensually (as each may need or desire) no longer applies.

Contributions

95Having identified the property available for distribution between the parties, I turn now to consider the next phase of or process in the property settlement exercise – namely, the identification and assessment of the parties' contributions in all their various guises.
96In Dickons & Dickons [2012] FamCAFC 154, 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.

97An 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).
98Initial contributions substantially favour the wife. She had her inheritance, including her share in the house that later contributed substantially to the purchase of Property D. Her jewellery and bullion was (and still is) of substantial value. On the other hand, of course, the husband contributed the [City K] properties, worth over $298,000.
99During the marriage, F gave the wife considerable property: Property A (the sale proceeds of which found their way into Property B) and F's share of the inherited property (which was used by the wife to assist with the purchase of Property D). F also provided financial assistance to meet living expenses in the early years of the parties' relationship.
100After he graduated from university, the husband commenced full-time employment and continued to work throughout the relationship. By all accounts, he earned a good salary and his international employment often provided accommodation and transport for the family as part of a salary package. While he has studied and acquired further qualifications, he did so concurrently with undertaking paid employment.
101The wife worked in lower paid employment from time to time, but she also spent years involved in full-time study. She ceased employment when she was seven months pregnant with A. Since then, she has taken on the role of primary caregiver for A, who was only just over one year old when the parties separated.
102I accept that the wife was the principal homemaker throughout the relationship. For relatively brief periods, she had household help. I also accept that the wife was virtually the sole parent to A. As I have indicated above, I am comfortably satisfied that both these roles were rendered more difficult as a result of the violence perpetrated by the husband on the wife: see, in this regard, Kennon & Kennon (1997) FLC 92-757; Stevens & Stevens (2005) FLC 93-246 at [65] and G & G [2006] FamCA 877.
103In my opinion, the wife was entitled to expect that she would be free to perform her functions as homemaker (and, later, parent) without the overlay of emotional stress and anxiety inevitably associated with the husband's behaviour to which I have referred. Generally speaking, the wife should have felt secure in the knowledge that the husband would support her in her homemaking and parenting roles, and not knowingly add to the obvious burdens associated with the running of the household.
104An assessment or analysis of the type undertaken by the Court under the general heading of the Kennon factors (for want of a better description) cannot and should not be attempted with some form of mathematical exactitude. The assessment or analysis in this regard is part of a broad discretionary or "holistic" exercise, and the evidence to which I have referred leads inexorably to a tilting of the scales in the wife’s favour. It is neither necessary nor principled to attempt to define the effect of that tilting with precision. Suffice it to say, however, that when all the evidence regarding the parties' respective contributions is taken into account, the allowance or adjustment to take account of the Kennon factors is comparatively modest.
105From separation to trial, the husband has mostly continued to be in well paid employment. The wife, on the other hand, has had the burden of caring for A. I accept that she has been unable to obtain employment. She has incurred significant debt to meet legal fees and living costs.
106It was submitted on behalf of the wife that, on the basis of contribution alone, the division of assets should be 60% to her and 40% to the husband.
107In all the circumstances, I conclude that between 55% and 60% of the overall property pool should be awarded to the wife on the basis of her contributions from the 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 57.5% – as being appropriate.
108In 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):
…[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?"
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. ...
(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.

109For 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:
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

110So 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 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.
111I 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

112The husband is now 41 years of age. He does not claim to be other than in good health. The wife is now 37. She says that she is suffering stress-related health concerns, but there is no evidence that this is a long-term condition which will impact upon her once this matter has concluded.

Children under 18

113A is now 6 years old. On 1 December 2015, orders were made (by consent) that the wife have sole parental responsibility for A, and that A live with her. The husband's physical contact with A is likely to be quite limited – unless he returns to Australia (which he says he might do).

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

114At trial, the husband was paying about $230 per week in respect of child support. Otherwise, the wife's sole sources of income were a Centrelink benefit of $559 per week, and the rent from Property D of $850 per week – totalling $1,409 per week.
115The husband was employed in Country C, earning about US$84,000.
116When last in employment the wife earned approximately $60,000 per annum. I accept that her ability to work at the time of trial was limited, given that she was A's primary caregiver. While the wife is a well-qualified woman, I am satisfied that the time she has spent out of the work force may disadvantage her when seeking employment. Some refreshment of her qualifications may be available. Still, I have no evidence of the state of the labour market in her field, or beyond it. In my opinion, the wife's prospects of obtaining employment in the foreseeable future are not great.
117On the other hand, I am satisfied that the husband's earning capacity is substantially greater and significantly more reliable than that of the wife for the foreseeable future. In this regard, I note the Full Court's observation in Clauson & Clauson (supra) at 81,910 (citing Best & Best (1993) FLC 92-418):
It has long been recognised that in most cases the most valuable "asset" which a party can take out of the marriage is a substantial, reliable, income-earning capacity.

118For the reasons that I later give, I intend to order that the husband pay to the wife $3,406 per month – until he has paid a total of $500,000.

Financial commitments

119There is no evidence to suggest that this is a relevant factor. It does not feature in the documents or submissions of either party.

Responsibilities to support any other person

120Both parties have the responsibility to financially support A.

Eligibility for pension, allowance or benefit

121The husband is not eligible for any pension, allowance or benefit.
122The wife receives government benefits, to which reference has already been made.

Reasonable standard of living

123Clearly, both parties are entitled to a reasonable standard of living, commensurate with their needs and overall financial position. The wife must provide accommodation for A, as well as for herself.
124I accept that the parties' lifestyle was very comfortable. The husband's employment in Country D provided accommodation, a car and a driver. At other times, he received a substantial income, which allowed the parties to travel and to purchase property. The wife now lives in a one-bedroom rented apartment.
125As I have said, the husband's earning capacity is substantially greater than the wife's earning capacity for the foreseeable future. As the years pass, it is likely that the wife's standard of living will fall further behind the husband's standard of living.

Conclusion regarding s 75(2) factors

126In my opinion, the most significant of the s 75(2) factors are –
a)the husband's substantially greater earning capacity; and
b)the fact that the wife retains the primary and predominant responsibility for A's care and supervision.

127I have not ignored any of the other matters referred to under the heading Section 75(2) factors.
128Having 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.
129On balance, and all the circumstances, I conclude that an appropriate adjustment to the parties' entitlements on the basis of contribution alone is to increase the wife's entitlement by 7.5% (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 15%.
130It follows that the overall distribution of the property between the parties should be on the basis of 65% to the wife (being 57.5% in respect of contribution and 7.5% in respect of the s 75(2) factors), and the remaining 35% to the husband.
131Clearly, 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?

132As 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.
133In 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.
134In 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.
135The 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).
136If the wife is entitled to 65% of the property available for distribution between the parties, then she is entitled to property to the value of $1,140,239 (being 65% of $1,754,214). The net value of the property currently in her possession or under her control is $738,149, as is apparent from the property schedule. It follows that if the wife is to retain the items listed in her "column" of the property schedule, then the husband must pay to her $402,090 (being the "shortfall" between $1,140,239 and $738,149).
137In the present case, the s 75(2) adjustment equates to $131,566 (being 7.5% of $1,754,214). I am satisfied that such an adjustment is proper – even taking into account that it creates a "differential", as it were, of 15% (or $263,132). Indeed, I am also satisfied that the adjustment is proper when regard is had to the difference between the wife's overall entitlement (being 65%) and the husband's overall entitlement (being 35%), which difference equates to 30% of the property (or just over $526,000) in the wife's favour. Such a result is just and equitable.
138I 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.

Terms of any proposed orders

139In considering the orders necessary to achieve this result, the terms of the orders made 18 November 2014, 19 November 2014 and 17 December 2014 must be taken into account. The 18 November 2014 orders, which were made by consent, provided:
…
4.All of the husband's right, title and interest in [Property D] forthwith vest with the wife and not later than the adjourned hearing of this matter on 19 November 2014 the husband deliver up to the wife a duly executed transfer of land, in respect of that property, in registrable form.
5.The wife be and is hereby vested trustee for sale of [Property D] with all powers necessary to give effect to that office, including to appoint and instruct agents and to sell the property without reference to the husband, to discharge secured debt and to retain the proceeds of sale as and by way of an interim settlement of her property entitlements.
6.Subject to the wife's nomination of a different account, the rental income from [Property D] be paid to the joint ANZ Mortgage offset account… and be applied in priority to meet instalments due on the mortgage debt, from time to time.
7.The wife be entitled to exclusive possession and quiet enjoyment of [Property D] and be exclusively entitled to manage the tenancies of [Property D] from time to time and to direct and instruct any agent for that purpose, without interference from the husband.
8.The husband be and is hereby restrained from dealing with funds in the mortgage account… and mortgage offset account or any other joint account, for any purpose and by any means, including but not limited to internet transactions.
9.All the husband's right, title and interest in the following forthwith vest in the wife:
a)the [Hyundai i30];
b)the wife's chattels;
c)the furniture in storage in Perth; and
d)the wife's bank accounts and superannuation entitlements.

10.…

140On 19 November 2014, Duncanson J heard the wife's application seeking the repayment of the $500,000 removed by the husband overseas. Her Honour ordered that –
[the husband] forthwith transfer and return to joint ANZ offset account the sum of AUD$500,000 plus any interest earned on the funds.

141On 17 December 2014, Duncanson J made the following orders in Chambers. Court records indicate the orders were made by consent.
1.Subject to the consent of the trustee of BT Business Super, namely Westpac Securities Administration Limited (the "Trustee") and pursuant to s90MT(1)(b) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of [the husband] in the BT Superannuation Fund then [the wife] shall be entitled to be paid an amount calculated at the Operative Time as 100% of [the husband's] entitlement in the BT Superannuation Fund and that there be a corresponding reduction in the entitlement [the husband] would have had in the Fund but for these orders.
2.That paragraph 1 has effect from the Operative Time and the Operative Time for this agreement is 4 days after the service of a copy of this order on the Trustee of the BT Superannuation Fund.
3.That until the happening of any of:
a)the transfer or rolling over into another superannuation fund of the payment split created by paragraph 1 hereof;
b)[the wife] satisfies the condition of release and is paid the payment split which was created by paragraph 1 hereof; or
c)[the wife] executing a waiver of rights within the meaning of section 90MZA of the Family Law Act 1975 (Cth) in relation to the payment split created by paragraph 1 hereof,

4.[the husband] is hereby restrained from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the BT Superannuation Fund a "not splittable payment" within the meaning of regulation 12 or 13 of the Family Law Superannuation Regulations 2001.
5.Having been accorded procedural fairness, these orders bind the Trustee of the BT Superannuation Fund to observe the requirements of the Family Law Act 1975 (Cth) and the Family Law Superannuation Regulations 2001.

142To give effect to the proposed division of property between the parties, the full beneficial title of Property D, rather than merely trusteeship for sale, should be vested in the wife. The wife should be entitled absolutely to the funds to be returned to the offset account. There should be an order for a further cash payment by the husband to the wife of $402,090.
143In aid of enforcement and to give effect to the division of property, upon receipt of the $500,000 into the ANZ offset account and the further sum of $402,090, the wife should do whatever is necessary to enable the husband to be entitled to the beneficial ownership of her interest in Property B, whether this is by way of transfer or discontinuance of all claims to that property in any Country A proceeding, or both.
144While there is no difficulty in including overseas property in the asset pool, in considering the terms of orders altering property interests some attention must be given to the fact that in this case there is considerable property, both real and personal, in Country A – a country with which there are no reciprocal arrangements for enforcement of orders. Section 31(2) of the Act provides that the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories. I see no difficulty with orders operating in personam (that is, upon the person). Indeed, the husband has submitted to the jurisdiction of this Court and sought orders, both in relation to personal and real property. In his "orders sought" of 16 December 2015 (to which Ms Bodey referred during submissions), the husband sought an order for the transfer of his interest in Property B to the wife. However, an order directly in respect of real estate in Country A should be avoided. As was said in Khademollah & Khademollah [2000] FamCA 1045, at [155]:
...The general rule with respect to real estate is that the court will not exercise jurisdiction in respect of title to or possession of land situated outside of the forum (British South Africa Co v Companhia de Mocambique [1893] AC 602; Potter Broken Hill Pty Ltd (1906) 3 CLR 479)

145It is for this reason that I have drafted an order in relation to Property B in the form of an injunction against the wife. I have not taken into account any entitlement of the wife to dowry. I have no evidence about it.
146In aid of enforcing compliance with the terms of other proposed orders, the wife sought that the husband be restrained from leaving Australia and that his name be placed on the Airport Watch List. As he is not in Australia, I consider it inappropriate to make the orders.

The effect of any proposed orders upon the earning capacity of either party to the marriage

147The proposed orders may assist the wife in some refreshment of her qualifications, but otherwise they are not likely to impact on the earning capacity of either party.

Spousal and Child maintenance

148The wife seeks an order for spousal maintenance in the sum of $5,167 per month (being about $1,190 per week). During oral submissions, Ms Bodey agreed that it would be appropriate for any order for periodic spousal maintenance to terminate on receipt of the $500,000 to be refunded by the husband. Such a sum would appreciably alter the wife's financial circumstances for the future.

The law in relation to spousal maintenance

149Part VIII of the FLA deals with property, spousal maintenance and maintenance agreements. Section 72 deals with the right of a spouse to maintenance, s 74 deals with the powers of the Court in spousal maintenance proceedings and s 75 deals with matters to be taken into consideration in relation to spousal maintenance.
150Section 72, relevantly, is as follows:
Right of spouse to maintenance
1.A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).

151Section 74, relevantly, is as follows:
Power of court in spousal maintenance proceedings
1.In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

152Section 75 is as follows:
Matters to be taken into consideration in relation to spousal maintenance
1.In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
2.The matters to be so taken into account are:
a)the age and state of health of each of the parties; and
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain; and

e)the responsibilities of either party to support any other person; and
f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
l)the need to protect a party who wishes to continue that party's role as a parent; and
m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
n)the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party; and

(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i)a party to the marriage; or
ii)a person who is a party to a de facto relationship with a party to the marriage; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p)the terms of any financial agreement that is binding on the parties to the marriage; and
q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

3.In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
4.In this section:
party means a party to the marriage concerned.

153In Bevan & Bevan (1995) FLC 92-600, the Full Court said that an award of spousal maintenance requires:
a) a threshold finding under s 72;
b) a consideration of ss 74 and 75(2);
c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
d)discretion exercised in accordance with the provisions of s 74, with "reasonableness in the circumstances" as the guiding principle.

154It is clear from the above that s 72 establishes a threshold question which must be answered before the power in s 74 can be exercised – on either an interim or a permanent basis. The threshold question is whether the applicant is "unable to support herself or himself adequately", not only by reason of the matters set out in sub-paras (a), (b) and (c) of that section, but also having regard to any relevant matters referred to in s 75(2). Thus, the question whether an applicant for spousal maintenance (or interim spousal maintenance) can support herself or himself "adequately" is not to be determined by reference to any fixed or absolute standard, but by reference to the matters referred to in s 75(2): see Mitchell & Mitchell (1995) FLC 92-601 at 81,995.
155The Full Court in Brown and Brown (2007) FLC 93-316 ("Brown") said at [92]:
Adequacy is the key concept in determining whether the threshold set by s 72 has been crossed. But that concept is not left behind once the step into the s 74 enquiry as to what is "proper" is taken. Though application of the factors set out in s 75(2) may, in a given case, lead to a generous interpretation of needs that are "adequate" and of what is "proper", the nexus between "adequate" and "proper" must remain. As Asche J said in Robinson and Willis (1982) FLC 91-215:
An order which is either insufficient or excessive in the circumstances is not "proper".

156The Full Court in Brown discussed the concept of whether a party can support herself or himself "adequately" at [161]. Their Honours said that "at a general level", the following propositions emerge from the relevant authorities:
•The word "adequately" is not to be determined according to any fixed or absolute standard.
•The idea that "adequate" means a subsistence level has been firmly rejected.
•Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties' standard of living may have to be lower if financial resources are insufficient to maintain that standard.
•In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.

•It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
•However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.

Discussion – spousal and child maintenance

157The wife's income, excluding child support, consists of rental and welfare payments, and totals $1,409 per week. Her personal expenditure totals $1760. Other weekly personal expenditure is $625. Thus, not including expenses for A, she has a shortfall of $976 weekly. Of the average weekly expenses listed in the wife's statement of financial circumstances at [60], food costs for her and A seem high, but not so much that I consider I should discount them when they are untested by cross-examination. I accept the wife's figures in this regard. I also accept that, at this stage – having regard to the wife's responsibility for parenting A and her choice to be available to give that care (which, in turn, restricts her employment prospects and to the other circumstances earlier referred to limiting the wife's employability), there is adequate reason for her incapacity to support herself. The wife and the husband both have the responsibility to support A, but according to their means. In my opinion, the wife has no capacity, unless spousal maintenance is to include a component for some costs of the child.
158The husband's statement of financial circumstances (filed 16 December 2015) contains surprising content. He lists his total average weekly income at about $2,200, which is a figure broadly consistent with his previously stated annual income. However, as the husband explains in his statement under the heading Additional information, he lost his employment in Country E in October 2015 and, at the time of trial, was employed in Country C. The husband lists (as personal expenditure) $2,400 weekly loan repayments to the National Bank of Country E, $350 for child support and $350 in the form of other expenditure. The loans from the bank are said to total $155,000. It appears that the loan funds have "been caught up in [Country A]". I infer, therefore, that those funds remain in existence. In addition to the bank loan, the husband claims a loan (of $170,000) due to his father. Unhelpfully, he lists, without distinction, fees paid and to be paid to lawyers, of $300,000. From entries for liabilities later in the document, however, it would appear the fees have mostly been paid. He claims various other debts of $130,000. Having regard to the husband’s unavailability for cross-examination, his conduct with regard to divesting himself of assets and his unlikely explanations for events (as previously discussed), I do not accept that these liabilities exist. By and large, the husband’s personal weekly living expenses are modest, save for $250 for holidays. I do not accept the husband's assertions, however, save for those which can be described as "against interest" – such as his salary and modest living expenses. I find that, in all the circumstances, the husband is likely to have a disposable surplus of at least $1,200 a week. As the wife has no current capacity to contribute to child support, I consider it preferable to reach a decision about child maintenance before determining spousal maintenance.
159Section 66E of the Act prevents the Court making any order for child maintenance if the provisions of the Child Support (Assessment) Act 1989 apply. They do not, because the husband is resident out of the jurisdiction in Country A, which is not a reciprocating jurisdiction.
160Division 7 of the Act deals with the making of child maintenance orders. Section 66B contains the objects of the Division. The principal object is to ensure that children receive the proper level of financial support from their parents. Otherwise, s 66B(2) records the other objects of the Division – namely, that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents and that parents share equitably in the support of their children. To give effect to those objects, ss 66G, 66H, 66J and 66K provide, among other things, that the Court may make any such child maintenance order as it thinks proper, taking into consideration the financial support necessary for the maintenance of the child, the child's age and the manner in which the child is being, and in which the parents expected the child to be, educated or trained.
161The wife seeks child maintenance of $1,794 per month, or $414 weekly. In this regard, I accept the expenses of $1,327 per week attributed to A, save in relation to "education expenses" of $697 per week – to the extent that they include school fees. As to school fees, the wife explains in the Additional Information section of her statement of financial circumstances that –
[A] attends [a Perth Private Primary School]; it is located in [the western suburbs], some distance to where we live. She cannot attend a public school because she was born [in mid]-2011. The school fees alone are $425 per week.

162The balance of the education expenses are spent on extra educational classes, and extensive extra-curricular activities and some paid day-care.
163It is apparent from the husband's material that he challenged the need for A (who was 4 years old at trial) to attend the Perth Private Primary School. While both parents are highly educated and can fairly be expected to place a high value on education, I am not satisfied that – taking into account their financial circumstances – it was either wise or necessary to enrol A in such a comparatively expensive school. On the other hand, paid child care is notoriously expensive and may not have provided any or any substantial saving from the parties' point of view. The only certainty of substantially lesser costs would have been if the wife had become A's full-time carer (which would have destroyed any prospect of the wife undertaking paid employment at the time).
164There has been no application to reopen this case, notwithstanding the regrettably long period of time that has elapsed since trial. It appears that A would by now be eligible to attend a public school. In the circumstances, I consider I should exclude the school fees, leaving costs of not less than $900 per week. The wife seeks only $414 per week, and the husband has the capacity to pay that sum. I will order accordingly.
165Payment of $414 per week leaves the husband with surplus capacity of $786, which is the amount of spousal maintenance I consider he should pay.

Orders

166Having regard to the findings set out in these Reasons, I propose to make the following orders:
(1)The husband must forthwith sign all such documents ("the transfer documents") and do all such acts and things as shall be necessary to transfer to the wife all his right, title and interest (if any) in [Property D].
(2)Notwithstanding the above orders, and –
(a)the Court considering it necessary to exercise the powers of the Court under Section 106A(1) of the Family Law Act 1975 as amended; and
(b)without further notice to the husband;

the Principal Registrar or a Registrar of the Family Court of Western Australia be forthwith appointed to execute the transfer documents in the name of the husband, and to do all acts and things as shall be necessary to give validity and operation to the transfer documents.
(3)The husband must pay to the wife the sum of $402,090 ("the smaller payment") within 60 days of the date of these orders.
(4)Within 60 days of the date of payment by the husband of the sum of $500,000 pursuant to the orders of Duncanson J made on 19 November 2014 ("the larger payment"), the wife must –
(a)take all reasonable steps open to her to procure the husband's discharge from the mortgage secured over [Property D] ("the [Property D] mortgage"); and
(b)indemnify and keep indemnified the husband from all debts, liabilities and obligations of the husband relating to or arising out of:
(i)[Property D];
(ii)the [Property D] mortgage; and
(iii)all outgoings with respect to [Property D],

and from all actions, proceedings, costs, claims and expenses in respect thereof.

(5)Forthwith upon payment by the husband of both the smaller payment and the larger payment:
(a)the wife must forthwith transfer and assign to the husband all share and interest (if any) in the following:
(i)the furniture, chattels and effects presently in the husband's possession;
(ii)all moneys standing to the husband's credit in any account in any bank, building society or other financial institution; and
(iii)the husband's remaining superannuation entitlements (being the husband's superannuation entitlements excluding his BT Super entitlements already ordered to be transferred to the wife), investments and insurance policies;

(b)an injunction is hereby granted –
(i)requiring the wife to execute all such documents necessary to relinquish in favour of the husband all her right, title and interest (if any) in [Property B]; and
(ii)restraining the wife from instituting or continuing any claim in proceedings (whether in Australia or in any other country) for the transfer to her of title in respect of the property described in sub-paragraph (a) above, and in respect of any real property in [Country A] which is currently registered in the husband's name ("the [Country A] real property").

(6)The husband must pay and indemnify the wife –
(a)in relation to mortgages, charges, encumbrances, rates, taxes and any other outgoings relating to the [Country A] real property, whether arising before or after the date of orders; and
(b)against any and all liabilities the wife may have to any of the husband's creditors, whether incurred prior to, during or subsequent to the relationship.

(7)Commencing two weeks from the date of these orders, and until the husband pays the larger payment in full, the husband must pay spousal maintenance to the wife in the sum of $3406 per month – such payments of spousal maintenance to fall due, in advance, on the first day of each month.
(8)Commencing two weeks from the date of these orders, the husband must pay to the wife child maintenance for [A] in the sum of $1794 per month – such payments of child maintenance to fall due, in advance, on the first day of each month.
(9)The wife be at liberty to provide a copy of these orders to any legal authority in Australia and overseas.
(10)The application for contravention filed be adjourned to a date to be fixed.
(11)The wife have leave to apply for costs in the following manner:
(a)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 the wife wishes to make ("costs application").
(b)If –
(i)a costs application is made; and
(ii)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 the husband wishes to make ("costs response").
(c)The written submissions forming part of the costs application and the costs response must not exceed a maximum of 10 pages in each case.
(d)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:
(i)the available dates for the parties to appear; and
(ii)the likely length of the special appointment.

(e)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.
(f)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 [166] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
1 August 2017