MEDDOW & ESTATE OF THE LATE MS MEDDOW

[2015] FamCA 1182

FAMILY COURT OF AUSTRALIA

MEDDOW & ESTATE OF THE LATE MS MEDDOW [2015] FamCA 1182

FAMILY LAW –  PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – ASSESSMENT OF CONTRIBUTIONS –  Where the husband made greater initial and financial contributions throughout the 16 years of cohabitation  – Where the parties’ homemaker and non-financial contributions prior to the birth of the children were assessed as equal during the first 12 years of cohabitation  – Where the wife made a greater homemaker and parenting contribution following the birth of the children, although the husband also made a very significant contribution in this regard until separation – Where the husband has unavoidably made a greater contribution to the welfare of the family after the death of the wife – Where the husband made substantial ongoing contributions to his superannuation fund during the marriage and following the death of the wife – Contributions assessed against one pool of net assets and superannuation as at 65 per cent to the husband and 35 per cent to the wife.

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – ORDERS MADE AFTER DEATH OF A PARTY – SECTION 75(2) ADJUSTMENT – Where the wife passed away after the conclusion of the final hearing but pending the delivery of judgment – Where there was a further hearing wherein the wife was substituted by her personal legal representatives, being her parents and the Executors of her Estate – Orders made in the exercise of the Court’s powers in s 79(8) of the Family Law Act 1975 (Cth) – Where the husband assumed the sole care of the two eight year old children after the wife’s death – Where it was not disputed that any adjustment made pursuant to s 75(2) must be in favour of the husband given that the late wife did not have any future needs – Where the amount of adjustment is in dispute – Adjustment of seven per cent in favour of the husband.

FAMILY LAW –  PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – SUPERANNUATION SPLITTING ORDER – Where the husband sought orders that his superannuation interests be split to enable payment to the wife’s Estate – Where the husband’s superannuation fund confirmed that if a splitting order was made it would pay to the Estate forthwith the amount required to satisfy the order – Where the Court found that there is jurisdiction to make a splitting order from the superannuation interest of a surviving spouse in favour of the Estate of the deceased spouse – Orders made providing for the Estate to be paid its entitlement by way of a superannuation splitting order and for the husband to retain the former matrimonial home where he resides with the children.

Family Law Act 1975 (Cth) ss 75, 79, 90MC, 90MA, 90MS, 90MD, 90MT
Family Law (Superannuation) Regulations 2001 (Cth)
Limitation Act NSW (1969) ss 14, 54

Bevan & Bevan (2013) FLC 93-545
Casey & Braione-Howard and DRFDB Authority (2005) FLC 93-219
Chapman & Chapman (2014) FLC 93-592
Chorn & Hopkins (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
Crapp & Crapp (1979) FLC 90-615
Coulter & Coulter (1990) FLC 92-105
Doyle & Doyle (deceased)(1989) FLC 92-027
Farnell& Farnell (1996) FLC 92-681
Ferraro & Ferraro (1993) FLC 92-335
Kessey & Kessey (1994) FLC 92–495

Linch & Linch [2014] FamCAFC 69
Hickey & Hickey (2003) FLC 93-143
In the marriage of Zdravkovic (1982) FLC 91-220
McLay & McLay (1996) FLC 92-667
Menzies & Evans (1988) FLC 91-969
Nimett & Estate of Nimett (deceased) [2007] FamCA 1189
Ogilvie v Adams [1981] VR 1041
Omacini & Omancini (2005) FLC 93-218
Picton & Picton [2005] FamCA 1392
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Public Trustee & Gilbert (1991) FLC 92-211
Stage Club Ltd v Millers Hotels Pty Ltd [1981] HCA 71
Stanford v Stanford (2012) 87 ALJR 74
Townsend & Townsend (1995) FLC 92-569
Woollams & Woollams (2004) FLC 93-195
Vass and Vass [2015] FamCAFC 51

APPLICANT: Mr Meddow

RESPONDENT: The Estate of the Late Ms Meddow

FILE NUMBER: SYC 2188 of 2011

DATE DELIVERED: 13 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 31 March 2014 – 3 April 2014, 10 and 20 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Burke & Mangan

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

1. Within 28 days of the date of these Orders the Executors of the Estate of the Late Ms Meddow do all acts and things and sign all documents necessary to enable the husband to have transferred to him all of the right title and interest of the Estate (or Ms Meddow’s) in and to the property known as and situate at J Street, Suburb H in the State of New South Wales, being the whole of the land comprised in folio identifier ….

2. Mr Meddow’s superannuation interests with Asgard Employee Super Account pursuant to membership number … (“the Superannuation Fund”) shall be split to create a superannuation interest for the Estate of the Late Ms Meddow as follows:

   (a)That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) that Mr Meddow a member of the Superannuation Fund and BT Financial Group Limited, trustee of the Superannuation Fund, its servants and agents (“the Trustee”) do all acts and things and sign all documents and give all consents necessary so that whenever a splittable payment becomes available to Mr Meddow of J Street, Suburb H in the State of New South Wales from his interest in the Superannuation Fund that the Estate of Ms Meddow is entitled to be paid the base amount of $1,105,461 of the splittable payment and that there is a corresponding reduction in the entitlement which Mr Meddow would have had if this Order had not been made;

   (b)This Order has effect from the operative time;

   (c)The operative time for the purposes of this Order is four business days after the date of service of these Orders upon the Trustee; and

   (d)This Order is binding on the Trustee.

3. Save as otherwise provided herein the parties are declared to be the sole owners to the exclusion of the other in law and equity of all assets in their respective names, control or possession as at the date of these Orders.

4. Save as otherwise provided herein the parties be solely liable for any debts accruing in their names as at the date of these Orders and shall indemnify the other in relation to same.

5. That in the event a person refuses or neglects to comply with these Orders directing that person to execute a deed or instrument, a Registrar of the Family Court of Australia, Sydney Registry be appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute any deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

6. All outstanding applications are otherwise dismissed and the proceeding is noted by the Court as concluded.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meddow & The Estate of Meddow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2188/2011

Mr Meddow

Applicant

And

The Estate of the Late Ms Meddow

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons inform a history of tragedy which befell the parties, their children and extended family. The history of woe commences with the breakdown of the parties’ relationship to the point where separation occurred. Following the separation, the wife and the parties’ not yet four year old twin children resided in the former matrimonial home. The children spent time with the husband.

2. The matter was prepared for hearing and was heard between 31 March 2014 and 3 April 2014 (“the 2014 hearing”). Judgment was reserved. Further submissions (provision of authority) were provided by the parties on 10 and 16 April 2014.

3. At the time the matter was heard the wife was suffering from a terminal illness.

4. Unfortunately and regrettably, the wife died much earlier than predicted in September 2014. At the date of her death the judgment proposed by me had been substantially prepared yet was undelivered. The press of court work did not enable the delivery of the judgment in the anticipated time frame of three months from the date of hearing. That circumstance may have had the unintended consequence of preventing the Court from making a splitting order which was sought by the husband in the hearing. The husband submits the Court may, at its discretion, still make a splitting order in respect of his superannuation. That matter is considered by me later in these reasons.

5. Submissions in relation to this aspect of the order sought by the parties were made during the resumed hearing on 20 March 2015. Again, regrettably, the Court’s business has prevented the time being available to conclude this judgment and publish it in a timeframe which is desirable.  

6. In relation to the splitting order sought by the husband it was agreed by the late wife’s estate (“the Estate”) that a splitting order would not be opposed if the trustee of the husband’s superannuation fund would split the husband’s entitlement as required by the order of the Court and make payment to the Estate soon after receiving the Court’s order. To that end the parties agreed to enquire of the trustee what position it would take should it be presented with an order requiring a splitting order in favour of the Estate.

7. The direction made by the Court on 20 March 2015 was as follows:

   I direct that the parties’ legal representatives jointly frame a question to the trustee of the husband’s superannuation fund asking whether as a practical consequence to a splitting order being made as sought by the husband would be the trustee immediately facilitating such split and making a cash payment to the estate of the wife’s entitlement pursuant to the splitting order. Upon receipt of an answer to that enquiry the parties’ legal representatives provide same to my Associate by email at their earliest convenience. Should there be any dispute about providing the information to the court as request the parties have leave to relist the matter before me.

8. On 13 May 2015 the Court was provided with a copy of the response received from the trustee of the husband’s superannuation fund, to the enquiry made about the proposed splitting order. That response is contained in an email from the husband’s superannuation fund, Asgard Employee Super (“Asgard”). The relevant section of the correspondence from the Asgard trustee is as follows:-

   Good afternoon,

   I refer to previous correspondence regarding the above mentioned family law split and can confirm we have now received a response from our Legal team.

   They have confirmed that if the trustee receives a court order to pay the benefits to the Estate of the non-member spouse, we would be able to comply with these orders, however a court order does not override the trustees legislative and regulatory obligations in accordance with SIS.

   If we receive a court order to pay the pay the non-member spouse's entitlement to the estate, we will process the split into a separate interest for the non-member spouse and then request certified copies of death certificate and probate/letters of administration and any other requirements in order to make the payment to the Estate/SIS Act dependent. SIS Regulation Division 7A allows the non-member to make an election if they meet a condition of release, however in our scenario, the non-member spouse is deceased therefore is not able to make an election.

   Upon receipt of the sealed orders we will process the split into a default super fund for the Estate of the Late [Ms Meddow]. The Estate will then be processed as per the normal Estate procedures. Further documentation will be requested at this point.

9. The outcome of the above set out communication is as follows. The trustee has been given notice of a possible order to be made by the Court and has had an opportunity to respond to that proposed order. If an order requiring a splitting order in favour of the Estate is made, the trustee will comply with the order. If the Court does make a splitting order in favour of the Estate the funds will immediately be available to the Estate (i.e. the funds will not be retained as part of the husband’s superannuation until he becomes eligible to receive a payment).

10. Following the demise of the wife, the eight year old twin children of the parties moved to live permanently with the husband. The wife’s parents, now the legal personal representatives of the wife and the Executors of her Estate, had been living with the wife and caring for her during her lengthy illness. They must have built a relationship with the children during that time. In the absence of evidence to the contrary it would be presumed that this was a close and caring relationship. For that relationship to be able to continue in a close manner it is most important that the relationship between the husband and the wife’s parents is positive. Unfortunately the evidence put before the Court by the husband in his recent affidavit portrays a picture of a disintegrating relationship between the adults upon whom the children will most rely during the next nine years.

The Case

1. This is an application by the husband in relation to the division of property. Issues between the parties relating to parenting matters were resolved by consent on the first day of the hearing of this matter.

2. The property proceedings having been commenced prior to the wife’s demise may continue notwithstanding same. Section 79(8) of the Family Law Act 1975 (Cth) (“the Act”) provides:

   (8) Where, before property settlement proceedings are completed, a party to the marriage dies:

   (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

   (b) if the court is of the opinion:

   (i) that it would have made an order with respect to property if the deceased party had not died; and

   (ii) that it is still appropriate to make an order with respect to property;

   the court may make such order as it considers appropriate with respect to:

   (iii) any of the property of the parties to the marriage or either of them; or

   (iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and

   (c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

3. In this judgment I now proceed to determine if I would have “made an order” under s 79 had the wife not died.

4. The wife in this proceeding passed away in September 2014. The wife had been ill with cancer for a number of years, and her prognosis was a fact at issue during the proceedings. Following her death, the wife’s parents were appointed as her personal legal representatives in these proceedings. The wife’s parents are the Executors of the Estate.

5. In the hearing which had concluded before the wife’s demise, the husband, in his application for final property orders, sought orders requiring the wife to transfer her interest in the former matrimonial home to him within 42 days of the orders and that she have exclusive occupation of the property for the duration of her lifetime. Upon the death of the wife, the husband proposed that the he list the property for sale and make a payment of $200,000 to the Estate from the net sale proceeds. The husband also sought orders that his superannuation interests be split to enable the wife to be paid the base amount of $550,000.

6. In the resumed hearing, following the demise of the wife, the husband in his amended application for final property orders seeks orders that the Estate transfer its interest in the former matrimonial home to him within 28 days. The husband also seeks a splitting order in relation to his superannuation entitlements in his Asgard Employee Super Account (“Asgard”) to enable the Estate to be paid the base amount of $400,000. He further seeks orders restraining the Executors of the Estate, being the wife’s parents, from disclosing the existence of the testamentary trusts created by the wife’s will to the children.

7. The Estate seeks that the husband’s application for property settlement, including his application for superannuation splitting orders, be dismissed and that the costs of these proceedings be paid for by him. In the alternate, the Estate seeks orders requiring the husband to sell the former matrimonial home and for the net proceeds to be divided as to 70 per cent to the Estate and 30 per cent to the husband. In the 2014 hearing the wife sought final property orders that she be granted sole occupation of the former matrimonial home for a period of twelve months from the date of the orders and that after this time the parties are to make arrangements for the sale of the property and for the net proceeds of sale to be divided equally between the parties. The wife also sought an order for the equal division of the parties’ superannuation entitlements.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact. The facts set out under this heading are either non contentious (unless stated otherwise) or, where contentious, are dealt with as an identified issue later in these reasons.

2. The husband was born in Australia (in 1962) and the wife was born in Canada (in 1970).

3. The husband and the wife commenced cohabitation in May 1994 and were married in 1996. The parties physically separated on 1 April 2010 when the husband vacated the former matrimonial home. There is an issue as to when separation occurred (if at all) under the one roof prior to the husband vacating the jointly occupied property. If separation occurred at the date of physical separation then there was a cohabitation of almost 16 years.

4. The husband and the wife have two children, A and B, who are twins born in 2006.

5. At the time of commencement of cohabitation the husband was working for P Corporation and had an income of about $90,000 per annum. He had been employed with that company since April 1981. In 1996 the husband began work in the Sydney office of P Corporation.

6. It is not contentious that the husband and the wife made at least the following contributions at the start of cohabitation. The wife had $4,000 in savings and nominal superannuation entitlements. The husband owned a property at D Street, Suburb K in Victoria (“the K property”). He acquired the property in 1988 for $93,000. He obtained a mortgage for $75,000 to buy the property in September 1988 and extended that by $15,000 in November 1989. He had superannuation entitlements of approximately $87,000 (wife’s evidence) or $110,000 (husband’s evidence). He owned a BMW motor vehicle. In oral evidence the husband denied the wife’s contention that he had a loan of $14,000 on his BMW car but did concede he could have had a loan outstanding in respect of the acquisition of that vehicle.

7. The husband further asserted he had long service and holiday leave entitlements.

8. Annexure “D” to the husband’s affidavit sworn 28 February 2014 (“the husband’s affidavit”) is a copy of a Superannuation Benefits Advice statement from the P Employees’ Provident Fund. That shows the husband commenced employment with P Corporation around 27 April 1981. He had therefore been with the company for about 13 years when he and the wife commenced cohabitation. Annexure “D” also shows that as at 1 July 1996 the husband’s leaving service benefit was $113,235. Annexure “C” to the husband’s affidavit shows that in the financial year ended 30 June 2004 the husband received a lump sum payment of $194,066. The covering “Notice to Payee” shows that payment could have been for one or all of the following possibilities:

   ·for unused long service leave that accrued after 15 August 1978 but before 18 August 1993; or

   ·for unused holiday pay and other leave related payments that accrued before 18 August 1993; or

   ·for unused long service leave that accrued after 15 August 1978, or unused holiday pay or related payments, where the amount was paid because you ceased employment under an approved early retirement scheme, because of invalidity or because of bona fide redundancy.

   The document does not show what the makeup of the payment may have been across each of those possible categories.

1. Taking all the matters set out in the two paragraphs immediately above, I accept that the husband’s superannuation entitlements were probably about $100,000 at the date of commencement of cohabitation.

2. The husband and the wife renovated the K property and sold it in January 1995 for $145,000. A contentious matter is how much was available to the parties from the sale of that property. The wife says she does not know how much was owing on the mortgage at that time. The husband says he received about $100,000 from the sale. A copy of the mortgage document for the $75,000 advance appears at annexure D to the affidavit of the wife sworn 13 February 2014 (“the wife’s affidavit”). That shows the mortgage was repayable over 33 years (396 months). The mortgage had been in existence for 6.3 years when the property was sold. There is no evidence to show whether the husband paid more in repayments than was required by the mortgagee during that time. Nor is there any evidence to suggest the mortgage was in arrears at the time of the sale. I consider it probable that he had reduced the principal of the loan to some extent although probably not to the level which the husband suggests. That is my finding on that matter.

3. In February 1995, the husband purchased a property at G Street, Suburb N in Victoria (“the N property”) in his sole name for $218,000. He used the net proceeds from the sale of the K property, as well as a mortgage, to fund the purchase.

4. The husband and the wife renovated the N property throughout their occupation of this property.

5. From June 1994, the wife worked as a debt collector for approximately 18 months. The wife did not specify how much income she earned from this endeavour.

6. In 1996, the husband secured a transfer of employment with P Corporation from Victoria to Sydney. The husband and the wife moved to Sydney so that the husband could take up this position.

7. After relocating to Sydney, the husband and the wife lived in rental accommodation for approximately one year.

8. The husband asserts that in 1996 his mother advanced him $37,500. The circumstances of this loan are contentious. The husband says that the terms included payment of interest at the rate of 8 per cent per annum. The husband says the loan is repayable on demand. No demand has yet been made. According to the husband, as at the date of his affidavit sworn on 28 February 2014, the debt had grown to $69,099 as he has not paid interest for a considerable period of time (since January 2008). The husband says that he has a paid a monthly amount of interest to his mother from September 1996 in the sum of $146 with the exception of two months, being October 1997 when the payment was changed to $104 and March 2000 when he paid $115. The liability of the husband to repay this loan is a contentious issue in this case. The wife concedes $17,000 came from the husband’s mother. However, she contests that it was a loan.

9. In mid-1997, the N property was sold for $271,000.

10. In July 1997, the husband and the wife purchased a property at Suburb Y for $437,000 (“the Y property”). They funded this purchase with the net proceeds from the N property and possibly (as the husband states) the money borrowed from the husband’s mother (paragraph 25 of the husband’s affidavit) and a mortgage. A mortgage was obtained from P Corporation which secured two loans. The first loan was for $200,000 and the second for $70,000 (see annexures “T” and “U” to the wife’s affidavit). There is an issue about whether any funds from the husband’s mother were required to acquire the Y property purchase.

11. From 1996 until 1998 the wife studied on a full time basis at university.

12. For four months in 1998, the wife worked part time.

13. From 1999 until 2003 the wife studied for, and completed, a PhD. With the exception of one year, the wife received scholarships and a stipend of $18,000 per annum. The wife also earned some income as a tutor and researcher during that period. The wife’s 2000 tax return shows a taxable income of $11,300. Her 2001 tax return shows a taxable income of $9,487 and her 2002 tax return shows a taxable income of $6,543. The wife’s work as a researcher continued until 2006. She used a small portion of this money for academic materials, and used the remainder for living costs.

14. In 2003 the husband was made redundant from P Corportation and received a payment of $310,187 after tax. The payment was referable to a period of employment from 1981 to 2003 (see annexure T to husband’s affidavit).

15. The husband also received payments for long service leave and annual leave. The net amount received by the husband from those payments was $229,556 of which $194,066 accrued because of service prior to May 1994.

16. The above two payments were received as to the sum of $229,556 on 24 September 2003 (see annexure V to husband’s affidavit) and the other $310,187 received 20 October 2003 (see annexure U to the husband’s affidavit).

17. In September 2003, after receiving his redundancy from P Corporation the husband began working for R Corporation. His annual salary was $325,000. In 2004 his income increased to $397,275 (see annexure W1 to husband’s affidavit). In 2005 the husband commenced employment with X Group earning approximately $400,000 per annum.

18. After commencing work with R Corporation the husband’s superannuation entitlement increased significantly. The husband said he applied one of his bonus payments to his superannuation. In June 1999 his entitlement to superannuation had a value of $325,233. By 17 September 2003 the value had increased to $659,099. In August 2005 the value of the husband’s superannuation had risen to $1,048,465. At 28 February 2014 the value of the husband’s superannuation with Asgard was $1,516,896 as stated in the balance sheet presented by the parties for that hearing. It had increased in value by over $200,000 by the time of the March 2015 hearing.

19. Prior to selling the Y property, the husband and the wife renovated this property and prepared it for sale. The precise nature of their individual contributions remains in issue.

20. In 2005, the husband and the wife sold the Y property for $770,000. They purchased the property at J Street, Suburb H (“the former matrimonial home”) for $1,780,000. A mortgage of $218,638 (see annexure W to the wife’s affidavit) was obtained to fund the purchase. The parties were able to use the sale proceeds of the Y property together with $800,000 in savings to acquire the property.

21. Each party made non-financial contributions to the renovation and improvement of the properties they occupied during cohabitation. The parties disagree about the extent of the wife’s contribution.

22. Between 2000 and 2006 the wife received some income from working part time as a tutor and researcher at the university. The wife ceased work on the eve of the birth of the children.

23. In 2006, the husband secured employment with Z Services Trust as Chief Operating Officer, earning approximately $430,000 per annum. There was an issue about the income he received from this company in the lead up to the first hearing. This included an issue as to whether the husband expected there may be a bonus paid.

24. In mid-2006, the twin children of the marriage were born.

25. The husband and the wife shared responsibility for the care of the children, although their precise parenting contributions remain in contention.

26. The wife was diagnosed with breast cancer in 2007.

27. In October 2007 F Pty Ltd was incorporated. The husband was one of three directors and shareholders in F Pty Ltd. The husband loaned F Pty Ltd $110,000. The U Family lent F Pty Ltd $1,665,953. The company borrowed $820,000 from NAB. The company proposed investing in and developing property.

28. F Pty Ltd was voluntarily wound up in November 2010. On winding up the husband was entitled to $75,871. He lent that sum to Mr U. On 12 December 2011 $30,000 of that loan was repaid (see paragraph 3 of husband’s affidavit sworn 6 February 2014 answering specific questions).

29. At annexures X1 toX7 of the husband’s affidavit he provided copies of his tax returns for the years ended 30 June 2007 to 2013. Those returns show taxable income earned across that time as:

    2007: $694,085;

    2008: $681,699;

    2009: $492,577;

    2010: $371,911;

    2011: $253,563;

    2012: $253,916; and

    2013: $254,354

30. In February 2008, the husband received a bonus of approximately $214,000. That amount is included in his tax return.

31. The husband asserts that at about the end of 2008 the parties separated under the same roof. The husband vacated the former matrimonial home in April 2010. The husband moved into rental accommodation with his current partner in Suburb L following the separation.

32. On 31 May 2010 the husband had a credit balance of $70,789 in his P bank account …96. The wife had access to the account and withdrew funds; however, she withdrew three large sums without the husband’s consent. On 4 October 2010 she paid her solicitors $10,000. On 23 August 2010 she paid her solicitors $5,000. On 2 and 4 June 2010 she paid the vet $3,000. On 20 October 2010 the husband transferred the balance of that account ($13,000) to another account of his thereby leaving a nil balance.

33. The parties also had a joint account with P. On 30 September 2010 the account had a balance of $41,081 in credit. The husband transferred $20,540 to his account on 20 October 2010 and the wife cancelled the account by withdrawing the balance on 25 October 2010. She withdrew $19,532.

34. Post separation the husband has cared for the children frequently and for different periods from April 2010. Court orders in November 2011 provided for him to care for the children three nights per week and half of the school holidays.

35. In June 2010, the wife began working for a university as a research assistant.

36. In April 2011 the husband commenced this proceeding in this Court.

37. In March 2012, the wife undertook work at the university on a contractual or ad hoc basis.

38. From 2012, the wife’s health deteriorated. She received whole brain radiotherapy, and began chemotherapy.

39. Since March 2012, the wife’s parents travelled to Sydney to be with the wife and the children for periods of time totalling in excess of one and a half years.  

40. The wife’s condition deteriorated and she entered palliative care in 2012. During this time, the wife’s parents assisted the wife in caring for the children. However, she recovered to the extent that she was discharged from palliative care in July 2012. She was, however, wheelchair bound until late 2012. Her condition deteriorated again throughout 2013.

41. In December 2012 the husband acquired a 2.5 per cent interest in a gambling interest by acquiring a 25 per cent share in a syndicate named “XYZ”. The husband did not have to contribute any of his own funds when he acquired that interest. The cost of the 25 per cent interest in XYZ was $30,250 and that was paid by a friend of the husband’s, Mr C. The husband has promised to repay with interest once those proceedings are concluded.

42. In January 2014 the wife sold shares which she held in AMP, Telstra and Dexus Property Group. She received the amount of $19,498.70 from the sale.

43. The wife severed the parties’ joint tenancy in the former matrimonial home between the date of separation and the date of the first hearing.

44. At the 2014 hearing, the wife said that she was about to commence a new course of chemotherapy. She was once again wheelchair bound. The wife’s parents had again travelled to Australia to assist in caring for the children. The evidence of the wife’s oncologist, Professor E indicated that, given her condition, the wife had a life expectancy of one or two years from the date of the hearing. The husband did not contest Professor E’s evidence. Unfortunately Professor E’s prognosis proved to be over optimistic (no criticism intended) and the wife lived for only another five months.

45. The parties reached agreement regarding parenting arrangements and handed up minutes of consent on the first day of trial. By consent, the wife’s parents were joined as parties to the parenting proceedings. Orders have been made as set out in the minutes of consent. The issues relating to the parties’ property remain in contention.

46. The wife died in September 2014. The husband assumed the full time care of the children thereafter.

47. The wife’s parents left Australia and returned to Canada in October 2014. Since this time, the communication between the wife’s parents and the husband has been fraught with difficulty.

48. Following the wife’s parents departing from Australia the husband and his partner, together with the children, commenced residing in the former matrimonial home.

49. Probate of the wife’s will was granted in November 2014.

50. The wife’s parents, who are the Executors of the wife’s Estate, were substituted for the wife in these proceedings by Orders of 8 December 2014.

51. As a result of the change in circumstances since the wife’s death, the matter came before the Court again for further hearing in March 2015.

52. The wife’s parents live in Canada.

53. The husband currently has an accumulated entitlement to annual leave and long service leave which is an agreed figure appearing in the 2015 balance sheet, set out later in these reasons.

CREDIT

The Husband

1. The husband gave his evidence for the most part in an apparently honest manner. However, I do consider he was less than forthcoming in relation to a bonus he ought reasonably to have known would be payable to him from his employer at the time the first hearing concluded. As will be seen, the evidence shows that following the conclusion of the first hearing the husband received a substantial bonus payment. This followed a period where for some time the husband had not received an annual bonus from his employer.

2. At times the husband appeared vague in relation to some detail of historic transactions. He was clearly perplexed about the evidence he was taken to surrounding the funds which were received from the sale of his property at Suburb K in Melbourne; the amount of money he had available to invest in the N property; and the amount of money he needed to borrow to acquire the Y property.

3. The husband was cross-examined about the amount of money that his mother provided as a loan. The husband said the sum advanced was $37,500. The wife put that the amount was $17,000. I accept the husband’s evidence in relation to the sum borrowed from his mother for the reasons which are set out hereafter.

4. In cross examination, the husband was questioned about the extent of his disclosure and the accuracy of his evidence in these proceedings.

5. He confirmed he was aware of his disclosure obligations and disagreed with the proposition that he had provided false information or had been reckless in providing his evidence.

6. As will be seen later in these reasons the Estate was critical of the husband for failing to disclose an interest he had in M Investments Pty Ltd until three working days before the resumed hearing. The husband’s explanation was that he did not think it was relevant to the matters to be considered in the further hearing until he made the disclosure. In the circumstances of this case I am prepared to give the husband the benefit of the doubt on that matter and accept his explanation.

7. The Estate made a number of other submissions which attacked the husband’s credit in the 2015 hearing. I have set those out later in these reasons however I do not accept that those submissions require any further caveat on the weight which I should give to the husband’s evidence.

8. Unless I specifically state to the contrary hereafter I have accepted the husband’s evidence, both oral and written.

The husband’s mother

1. The husband’s mother presented as an elderly lady who was doing her best to answer the questions asked of her. She gave me the impression that she was an honest person who was trying to assist the Court in the giving of her evidence.

2. She said that she wrote the draft of her affidavit with assistance from her son, Mr O. She stated that she had difficulty recalling whether, and if so how, she had instructed the husband’s solicitor to incorporate her draft into final form.

3. When it was put to the husband’s mother that she lent the husband $17,000, she reiterated that she had lent him $37,500. The husband’s mother then said that given her health, she was not in a position to answer further questions. She also indicated that Mr O managed her finances for her.

Mr O, Mr C and Mr U

1. I observed these witnesses to give their oral evidence in an apparently honest and straightforward manner. There was nothing about the manner they gave their evidence or the content of same, whether oral or as contained in their affidavit which led me to conclude they were not being truthful.

2. I have accepted the evidence of Mr O in relation to the loan from his mother to both himself and to the husband and wife in these proceedings.

The Wife

1. The wife gave her evidence in an apparently honest and straightforward manner. There was nothing about the way in which she gave her evidence which suggested to me that she was being untruthful. Her recollection of some of the financial transactions to which the parties were involved during the cohabitation was not as good as that of the husband in many areas; however I consider that probably related to the fact that the husband primarily attended to those matters.

2. The wife did not hide what appeared to be resentment, dislike and distrust of the husband in the oral evidence she gave. That view which she seemed to have in relation to the husband raised in me a concern that it had the possible consequence of colouring her recollection of events which occurred during the parties’ cohabitation and since.

3. There was one aspect of her evidence which I did not accept and that related to the alleged loan from the husband’s mother to the parties. She asserted the loan was for $17,000 and also disputed that it was a loan repayable on demand. In this regard I prefer the evidence of the husband, his brother and his mother. I do not consider the wife was being deliberately untruthful in her evidence; rather, I considered her recollection was different to that of the husband and his witnesses on the subject.

4. The wife was asked whether she trusted the husband to care for the children after her death to which she replied “no”. She agreed with the proposition that she disliked the husband.

5. The wife denied that she had exaggerated or been untruthful with her evidence that she spent no less than six months looking for properties to purchase prior to the purchase of the N property but confirmed that this was done jointly with the husband and that she did not have a driver’s license during that period. The wife also asserted that she replastered, stripped woodwork, and helped to landscape and also to repaint the interior of the N property with the husband. She disagreed with the proposition of the husband that she only assisted with the painting of the kitchen floor. She accepted that she may only have assisted with the renovations for the Y property during her university holidays.

6. Unless I specifically state to the contrary hereafter I have accepted the wife’s evidence, both oral and written.

The wife’s father

1. The wife’s father gave evidence in the resumed portion of the hearing. At that time he was not only a witness in the wife’s case but he was also the personal representative of the wife, having been made an executor of her will.

2. The wife’s father presented as an honest witness.

The Issues

1. The key issues that remained in contention at the conclusion of submissions included the following:

   a)The extent of each party’s involvement in renovations and improvements to the properties they occupied during their cohabitation.

   b)The extent of each party’s home maker and parent contributions during cohabitation.

   c)Whether the parties separated under the one roof in 2008 as asserted by the husband.

   d)The extent of the husband’s initial contributions.

   e)The terms and quantum of funds advanced by husband’s mother and the amount of borrowing necessary to acquire the Y property.

   f)Whether the loan from the husband’s mother needs to be repaid and, if so, when?

   g)The extent of the husband’s disclosure relating to funds received from F Pty Ltd and his involvement in the XYZ syndicate.

   h)The extent of the husband’s disclosure regarding his income and in particular the receipt of a bonus of $175,000 shortly following the 2014 hearing.

   i)The parties’ post separation expenditure and financial conduct, including the use of joint funds.

   j)The parties’ post separation expenditure and financial conduct, including the use of joint funds.

   k)Whether the ownership of the former matrimonial home should be transferred to the husband.

   l)Whether there is jurisdiction for the Court to make the superannuation splitting orders proposed by the husband in circumstances where the wife has passed away, and if so, whether the Court should exercise its discretion to make the orders.

   m)Whether the practical effect of the superannuation splitting orders proposed by the husband would enable the Estate to be immediately entitled to a cash payment from the husband’s superannuation fund.

   n)Whether the Court should adopt a single or two pool approach in relation to the superannuation and non-superannuation assets of the parties.

Evidence

THE 2014 HEARING

1. The husband relied on the following documents at the 2014 hearing:

   a)Affidavit of the husband sworn 28 February 2014;

   b)Affidavit of the husband sworn 6 February 2014 answering specific questions.

   c)The husband’s financial statement filed 28 February 2014;

   d)Affidavit of Ms T sworn 28 February 2014;

   e)Affidavit of Mr C sworn 3 March 2014;

   f)Affidavit of Mr O sworn 27 February 2014;

   g)Affidavit of Mr U sworn 28 February 2014;

   h)Affidavit of Mrs O (“the husband’s mother”) sworn 27 February 2014; and

   i)Affidavit of single expert Mr W sworn 27 March 2014.

2. The wife relied on the following documents at the 2014 hearing

   a)Affidavit of the wife affirmed 13 February 2014 ;

   b)Financial Statement of wife affirmed 13 February 2014;

   c)Affidavit of wife’s treating oncologist Professor E affirmed 13 February 2014;

   d)Further affidavit of Professor E affirmed 28 February 2014; and

   e)Affidavit of Mr V (“the wife’s father”) sworn 27 February 2014.

3. I propose to deal with each of the contentious facts which have been identified above and thus determine the identified issues. I have accumulated under each heading the evidence which I consider most significantly informs that issue.

The extent of each party’s involvement in renovations and improvements to the properties they occupied during their cohabitation

1. The evidence to support this issue is found in the evidence of each of the parties.

The K property

1. In relation to the K property the husband did not refer to work done on that property in his affidavit. He did give oral evidence on the matter. The wife in her affidavit said both the parties did work on the property to prepare it for sale in the three month period leading up to the sale. She said that they worked two nights per week and most weekends. They painted the house inside and out and did some work in the kitchen.

2. With regard to the maintenance of the K property, the husband asserted that the painting of the interior and the exterior of the house, with the exception of the kitchen floor, was completed by him without the assistance of the wife. He agreed that the wife helped with stripping and painting of the house but denied the other contributions asserted by her.

3. In relation to the wife’s contribution towards renovations on the various properties, the husband was referred to the evidence in the wife’s affidavit that she painted the interior and the exterior of the K property with the husband on at least two evenings during the week and on most weekends for a period of approximately three months prior to selling the property. The wife also deposed that they spent approximately four hours over three nights tiling the splashback in the kitchen. The husband maintained his denial that the wife undertook these works.

4. The work referred to by each of the parties was performed a considerable time ago. It is impossible for me to form a definitive decision as to the precise contribution by each in terms of effort and skill. I consider it probable that each contributed to this work in a way which requires a determination of equality of contribution.

The N property

1. In relation to the N property the husband said that he removed all plaster walls and ceilings. He said that he cleaned out the ceiling spaces and assisted tradesmen with replacing floors, wiring, plasterboard, skirting boards and replacing some windows. The husband also said that he stripped doors and windows for painting and painted all internal walls, ceilings, roses, cornices, and the external front façade of the house. He also landscaped the front garden, painted the fence, tiled the bathroom and re-painted the kitchen and bathroom.

2. The wife describes her work on the N property as more extensive than that attributed to her by the husband. She says that during the whole time the parties lived in this property they were renovating two to three evenings per week (four hours on each occasion) and most Sundays. The wife said she spent three weeks painting while the husband was in Sydney on one occasion. She also spent some significant time sourcing items for the house such as tiles, paint and PC items.

3. The husband denied the wife’s contention that she jointly looked for property with him for six months prior to the purchase and denied that the wife had, at any stage, looked for properties in Suburb N with him.

4. In relation to the N property, the husband conceded the wife painted the kitchen floors and assisted with stripping the wallpaper and the painting but denied other contributions asserted by the wife in relation to the improvements to the property.

5. I conclude the parties performed the renovation work together. I find the husband probably performed more of the physically challenging work; however, I accept the wife was present and undertaking some other tasks. I conclude their contributions to the renovation of this property should be weighed equally.

The Y property

1. In relation to the Y property the husband said he did work renovating the property. He said that he stripped doors, windows and skirting boards and re-painted them. He painted all internal walls and ceilings. He removed carpet from down stairs and then sanded and polished the floors. He did landscaping in the gardens and painted the upstairs veranda and external laundry. The husband also said that he removed the floor midpoint of the stairwell that was separating the ground floor from the first floor and made good the stairs and walls.

2. The wife said she spent time on the Y property carrying out renovations. She worked over a three month period (university holidays) for two to three hours per evening and eight hours each day on weekends, stripping wallpaper, sanding and painting woodwork. She said that she spent ten hours per week for four weeks preparing the house for inspection at the time of sale. The wife sourced real estate agents to visit and the parties then decided which to engage.

3. I find the parties contributed equally to the renovations of this property albeit that those contributions were of different natures.

The former matrimonial home

1. In relation to the former matrimonial home the wife has performed work on the property post separation. She did painting and re-grouted bathrooms. She sanded and stained the garage door. She did likewise to a garden bench and a pool storage box. She prepared the front decks for painting and then oiled them. She painted three rooms. She also set out work her father has performed on the property. This was largely in the nature of maintenance.

The extent of each party’s home maker and parent contributions during cohabitation

1. With regard to the care of the children, the husband said that following their premature birth in mid-2006, he slept in the children’s room every alternate night and attended to them during the night if they woke. He also assisted with dressing them in the mornings. The husband said that approximately two months after the children were born, he organised a nurse to attend on the children every night for several months so that the wife did not have to feed them during the night. The husband said that assisted the wife with caring for the children before and after work.

2. The wife was diagnosed with cancer in May 2007. The husband stated that he and his sister cared for the children while the wife underwent a mastectomy and for a two week period following the surgery. He gave evidence that he then paid for a nanny to undertake all the housework and care of the children for approximately twelve months so that the wife could rest and recover. The husband said that he would usually take the children on excursions out of the home on Sundays so that the wife could have some “child free time”.

3. The husband also stated that he had paid the application fees for four private schools. These are schools the parties had hoped the children may attend. The children were awaiting placements.

4. During the relationship, the husband asserted that he did the majority of the cooking, maintained the gardens and the pool and that he contributed equally to the household chores.

5. I need to point out here that payment of the expenses referred to above such as a “nanny” and school application fees all must have come from the financial contributions made by the husband to the marriage and therefore to count them again in the manner claimed by the husband would amount to double counting and I will not do that.

6. In his oral evidence in chief, the husband informed the Court that from April 2010, when he left the former matrimonial home, until the Orders of this Court on 29 November 2011, he had the care of the children two nights out of seven. He said that from 2011 onwards, he cared for the children three nights per week and half of the school holidays.

7. In relation to the allocation of domestic cleaning responsibilities, the husband stated that he shared cleaning responsibilities equally with the wife and that the costs of the groceries were shared equally. The husband asserted that he also did 90 per cent of the cooking and that the parenting of the children was equally shared between the parties, both during the marriage and in the period after the separation.

8. In the 2014 hearing, the husband confirmed his affidavit evidence that he and the wife had an equal shared parenting arrangement from the time he left the former matrimonial home. He was taken to his evidence in chief, where he stated he cared for the children two nights out of seven from April 2010 until November 2011. The husband confirmed that by an equal shared care arrangement he was not asserting that he and the wife had equal time with the children; rather, that there was equal parenting responsibility and that therefore the wife was not the primary caregiver in this period.

9. The husband agreed that he worked full time until he left the former matrimonial home but denied that the children were cared for by the wife in this period. He said that the children were looked after by a nanny and a housekeeper and that he was there overnight and in the morning. The husband denied that the children were taken to medical appointments by the wife.

10. The husband was asked about the frequency of his travel for work. He agreed that from 2006 his employment required travel but said that the frequency varied, and denied that he was away for up to one month at a time.

11. The husband said that once he commenced employment with Z Services in August 2006, he travelled overseas about once a month for about two days at a time. He denied that some of his trips were longer than a week.

12. The husband asserted that the cleaning, grocery shopping and cooking was shared between the parties and denied that the wife undertook the majority of these tasks because he was engaged in long hours at work. The husband said that he was always at home in the mornings.

13. The wife agreed with the proposition that on each alternate night, one of the husband and the wife would have the responsibility of caring for the children. She also confirmed that she had asked the husband not to return to the home between 6.00 pm and 7.00 pm because she felt it would disturb the children’s sleep.

14. The wife was asked about a housekeeper engaged by the husband and the wife when the children were about six months old and confirmed that the housekeeper undertook the ironing and washing, and cleaned and tidied the home, while she was undergoing chemotherapy.

15. The wife maintained that the husband travelled overseas on a fortnightly, not monthly basis once he started his position with Z Services. She denied the proposition that the husband would return from these trips on a Friday, take the day off and take the children to playgroup or spend the day with them.

16. The wife disagreed with the proposition that she was not the primary carer of the children prior to the husband leaving the home or that parenting responsibility had been shared equally between them.

17. In relation to the husband’s assertion that the wife was not contributing as a parent because a nanny/housekeeper was employed by them, I reject such an argument. It was not asserted by the husband that the wife was absent from the presence of the children during the majority of the time that the nanny/housekeeper was present. I accept that when she was present with the children and the nanny/housekeeper the wife was still performing a supervising role. She was also contributing with the husband to the cost of the nanny/housekeeper even if that was in an indirect manner.

18. Counsel for the husband took issue with the wife’s proposition that she was the primary carer for the children. He submitted that the husband’s contributions as a parent were equal to those made by the wife. Counsel stated that the wife’s evidence as to which party was the children’s primary carer was difficult to accept or to reconcile with the facts. He submitted that the reality of the husband’s relationship with the children sat uncomfortably with the wife’s criticism of his parenting style.

19. I accept the husband made a very significant contribution as a home maker and parent prior to the physical separation in April 2010. However I also accept that there were periods of time after the children were born when he was unable to contribute to the care of the children or as a home maker because he was overseas on business.

20. I determine that until the children were born (approximately some 12 years into the cohabitation) the husband’s contribution as a home maker was equal to that of the wife. Following the birth of the children and until the separation the wife’s contribution as a home maker and parent exceeded that of the husband by a small margin. Following the husband vacating the former matrimonial home in April 2010 the wife’s contribution as a parent exceeded that of the husband in that she cared for the children for more days than the husband.

Whether the parties separated under the one roof in 2008 as asserted by the husband

1. The husband and the wife commenced cohabitation in 1994 and were married in 1996. The children were born in 2006. The husband said that the parties separated under one roof on 25 December 2008 and that he left the former matrimonial home in April 2010. He commenced cohabitation with his new partner and her son in October 2013.

2. The husband was cross-examined about the changes in his asserted date of separation which was initially asserted in his Initiating Application and further amended applications to be mid-2006, being the date the children were born. He agreed that he no longer asserted that was the date of separation but denied that the assertion was made to obtain an advantage in the proceedings. In re-examination, the husband outlined that he had initially held the belief that the parties separated in 2006 because once the children came home from hospital, the husband and the wife ceased sleeping in the same room and were responsible for the children on an alternating basis.

3. He was then taken to his trial affidavit by counsel for the wife, where he asserted that the parties separated under one roof on Christmas Day of 2008. The husband said that he remained of the view that this was the date of separation, even though he was attending marriage counselling with the wife in December 2009 and he did not leave the former matrimonial home until April 2010.

4. The wife denied the assertion, made by counsel for the husband, that when the children and the wife returned home following their birth she insisted on the husband occupying another room. However, she confirmed that when the children came back from hospital, she and the husband occupied separate bedrooms “at times”. She said that she and the husband would share the same room approximately three to four times a week for about six months when they had a night nurse.

5. In submissions the husband’s counsel conceded the wife was not cross-examined about the date of separation being earlier than April 2010, when the husband left the former matrimonial home. The husband submitted, correctly in my view, that the earlier date was of no real relevance in this case because he continued to contribute between the 2008 date asserted by him and the date he left the former matrimonial home.

6. It seemed to me that this earlier date of separation as asserted by the husband was not seriously contended for by the husband in the hearing. It appeared to me that the husband was under the misapprehension that the use of a separate bedroom to that of the wife, if that did occur without any interruption from December 2008, until he vacated the former matrimonial home meant the parties were separated in the sense of there being no consortium vitae. There was before me evidence of many other aspects of that consortium vitae following December 2008 including financial support and the provision of domestic services one for the other. In any event I am not satisfied that the husband has made out a case for separation under the one roof in December 2008.

7. To the extent that it remains necessary I do accept that the parties did separate in April 2010 when the husband vacated the former matrimonial home.

The extent of the husband’s initial contributions

1. The husband in his affidavit set out evidence that he made the following contributions at the commencement of cohabitation:

   a)The K property which was purchased in 1998 for $93,000 subject to a mortgage of $75,000;

   b)superannuation entitlements with P Corporation including a leaving service benefit (in the sum of $113,235.77 as at 1 July 1996); and

   c)a BMW motor vehicle  worth approximately $12,000.

2. As stated earlier (under the heading “Background Facts”) I find the husband had an entitlement to about $100,000 in superannuation benefits at the date of commencement of cohabitation.

3. As also stated earlier, there is an issue as to the amount the parties received upon the sale of the husband’s property at Suburb K in January 1995. This has some importance because the sale was reasonably proximate to the date the parties commenced cohabitation (May 1994), and therefore gives some guidance to the weight which might be given to the husband’s initial contributions. As stated earlier in relation to the mortgage for this property, “I consider it probable that he had reduced the principal of the loan to some extent although probably not to the level the husband suggests”. The husband claimed he received about $100,000 from the sale. A copy of the mortgage document for the $75,000 advance appears at annexure D to the affidavit of the wife sworn 13 February 2014. That shows the mortgage was repayable over 33 years (396 months). The mortgage had been in existence for 6.3 years when the property was sold. There is no evidence to show whether the husband paid more in repayments than was required by the mortgagee during that time.

4. In cross-examination regarding the sale of the K property and the acquisition of the N property, the husband confirmed that it was his evidence that he received about $100,000 in equity when he sold the K property in 1995 which was used to buy the N property. He agreed that he had lived in the N property from the day he bought it. He also confirmed his evidence that the N property was purchased for $218,000 subject to a mortgage of $120,000.

5. It was then put to the husband that the copy of the mortgage for the N property, annexed to his affidavit, revealed an amount of stamp duty paid which would reflect a mortgage of $165,000 over the property. The husband said he was unable to explain this amount.

6. The husband denied the suggestion that the equity from the sale of the K property which was applied to the N property was not greater than $53,000. He said that it was his belief that he received approximately $100,000 from the sale and that the mortgage for the N property was $120,000. He denied the suggestion that the value of the mortgage over the N property was $165,000.

1. It is difficult to determine this dispute with any certainty. The parties did effect significant improvements to the property at Suburb N and it is possible some of the money either from the sale of the K property or from the funds borrowed to acquire the N property were preserved to pay for renovations. I consider that overall, despite some failures, the husband’s knowledge of the financial aspects of the parties’ cohabitation was greater than that of the wife because I find that he was mainly the one who attended to that aspect of their cohabitation, and consequently his recollection of such matters is superior to that of the wife. I therefore conclude the husband is likely to be substantially correct in his recollection.

2. Doing the best I can I consider it probable that the sale of the K property realised a profit of not less than $80,000 for the husband.

3. The husband was then taken to a Notice to Payee annexed to his affidavit which he received in or around June 2004. He denied the suggestion that by the time of cohabitation he had expended all his annual and long service leave with P Corporation.

4. In her affidavit the wife said that she had minimal assets at the commencement of cohabitation, namely, savings of $4,000 and nominal superannuation entitlements. She asserted that the husband’s assets consisted of the K property, a BMW motor vehicle worth approximately $14,000 and subject to a loan of approximately $10,000, and superannuation entitlements of approximately $87,000.

5. The wife asserted that the husband had a car loan at the commencement of cohabitation. The husband was cross-examined in relation to his assertion that he had no loan on his car at that time. He was then asked about whether it was possible that he could have obtained an interest free loan in 1994 for the car, to which he initially replied “I don’t know”, and, when asked again if this could have happened, he replied “possibly, yes”. The husband denied that he received interest free loans as part of his employment.

6. The wife questioned the amount of long service leave the husband claimed to have had at the date of cohabitation. The wife alleged the husband had been a frequent overseas traveller and had used long service leave for that purpose.

7. In relation to the frequency of his travel, the husband was shown his expired passport and was asked whether he agreed he was outside Australia between 27 March 1993 to 4 June 1993, 25 February 1994 to 20 March 1994, 30 March 1994 to 5 April 1994 and 19 December 1994 to 10 January 1995. The husband did not dispute those dates. He stated that he had used his accrued annual leave for the travel, not his long service leave.

8. I conclude the husband probably did have a loan which was obtained to acquire the vehicle he owned at the date of cohabitation. I accept the husband’s assertion that he did have superannuation and long service leave entitlements of about the level he has claimed at the date of cohabitation.

The terms and quantum of funds advanced by husband’s mother and the amount of borrowing necessary to acquire the Y property

1. The husband’s evidence about the loan from his mother is contained in his affidavit.

2. The husband gave affidavit evidence that he and the wife received a loan of $37,500 from his mother to assist them to purchase property in Suburb Y. The husband said that there was an oral agreement made through a series of meetings attended by him, the wife, his mother, his brother and his brother’s wife from approximately June 1996 – 5 August 1996. He deposed that the terms of the loan were:

   a)His mother would lend him and the wife the sum of $37,500;

   b)Interest would accrue at a rate of 8 per cent per annum and would be payable on a monthly basis;

   c)Interest would be direct credited to his mother’s bank account on a monthly basis by the husband with the sum being varied at her discretion;

   d)The husband and his brother (who also received a loan in the same amount and on the same terms) would pay their mother’s bills in equal instalments and any shortfall between the monthly interest and the sum of the monthly direct credit bills paid would be added to the loan balance at the beginning of the following month; and

   e)His mother could require repayment of all or part of the loan and the interest at any time.

3. The husband outlined that from September 1996 to the date of swearing his affidavit, he has paid the amount of $146 per month to his mother by way of direct credit from his bank account to his mother’s bank account, with the exception of a period of two months in October 2007 and March 2000 when the payments made by him were $104 and $115 respectively.

4. In relation to paying his mother’s bills, the husband said that he paid these bills from 6 August 1996 to early 2008. The husband had not paid any of the bills since that date and accordingly, interest continues to accrue.

5. The husband deposed that by 31 January 2014, the principal outstanding on the loan and the interest accrued amounted to $68,764. According to the husband, as at 28 February 2014 (the date of his affidavit) he owed his mother $69,099 which was made up of the principal amount of $37,500 and outstanding accrued interest of $31,599.

6. The husband was cross-examined about the loan from his mother. He stated that there were several meetings from June to August 1996 at his mother’s house regarding the loan. He said that the money was provided to assist the husband and the wife to purchase a home in Sydney.

7. It was suggested to the husband that, in light of his evidence of the sale of the N property and paying off the mortgage, he did not have any need to obtain a loan from his mother in August 1996. The husband denied this, saying that he did not have enough money to buy a property in Sydney.

8. The husband provided evidence that he sold the K property in 1995 for $145,000 and received approximately $100,000 from the net proceeds of sale. He outlined that the net proceeds were applied towards his purchase of the N property in February 1995 for $218,000. The balance of the purchase price of the N property was secured by a mortgage. The husband also paid costs of approximately $12,000 associated with the purchase of the N property including stamp duty.

9. The husband stated that he made all the mortgage repayments for the N property and had reduced the mortgage from $120,000 to $50,000 by the time that the property was sold in 1997. He also contributed his physical labour in undertaking renovations for the property, as did the wife. The N property was sold in 1997 for $271,000. The husband said he received approximately $220,000 in net proceeds from the sale.

10. The husband’s evidence was that he and the wife used the proceeds of sale from the N property and a loan to assist with the purchase of the Y property for $437,000 in 1997. The balance of the purchase price was paid by way of a mortgage of $200,000 against the property. He was taken, during cross examination to the wife’s affidavit where she asserted that there were two mortgages taken out with the P Corporation for the purchase of the Y property, one for $200,000 and one for $70,000. The husband accepted that there were two loans on the Y property and that he had forgotten about the second loan, but disagreed that his mother did not provide any money for the purchase of the Y property.

11. The husband was also referred to the wife’s affidavit evidence that, in addition to the mortgage of $75,000 on the K property at the time of its purchase, in November 1989 the husband obtained a further mortgage from P Corporation secured against the K property for $15,000. The husband stated that he had not remembered there being two mortgages and his affidavit evidence had been his honest recollection. The husband agreed that, after reviewing the wife’s evidence, he must have also had to discharge the second mortgage on the K property.

12. It was then suggested that the amount advanced by the husband’s mother was around $17,000 and it was provided for the purposes of assisting her to receive the pension. The husband disagreed with that proposition. The husband also disagreed with the suggestion that the wife was never present at any discussions regarding the funds which were to be advanced. When it was put to the husband that his initial evidence, as set out in his financial statements of 2010 and 2011, was that the loan was provided solely to him, the husband maintained that his current evidence was that the loan was provided to both him and the wife. He denied the suggestion that this was invented by him for the purpose of the proceedings. The husband confirmed that he had been paying money into his mother’s account up till the present day, that the loan has been outstanding for approximately 18 years and that it could be required to be repaid at any time.

13. In relation to the issue regarding the quantum of the net proceeds received by the husband upon the sale of the K property, it was submitted that he received approximately $100,000 in net proceeds from the sale in February 1995. Counsel for the husband said that the wife’s contention that he only received $53,000 from the sale was based on an error regarding the quantum of the mortgage that the husband used to acquire the N property following the sale of the K property.

14. The husband gave evidence that in addition to paying the funds into his mother’s account, he also paid bills for her until 2008. He agreed that he additionally, on occasion, paid airfares for his mother in lieu of interest.

15. The husband’s mother provided evidence of the asserted loan by her to the husband and the wife in her affidavit sworn on 27 February 2014. She stated that she loaned the sum of $37,500 to the husband and the wife on 5 August 1996. The terms of the loan were set out in her affidavit as follows:

    a)An annual interest rate of 8 per cent per annum payable monthly.

    b)Interest payments to be made from a combination of regular monthly cash payments beginning initially at $146 per loan (but variable at my discretion at any time) with the balance of the interest due to be paid in kind by way of my sons paying my regular living expenses.

    c)Any interest unpaid during the month to be added to the outstanding balance of the loan at the beginning of the following month.

    d)The term of loan was at call giving me the right to call back all or part of the principal and interest outstanding at any time.

16. The husband’s mother deposed that the agreement was a verbal agreement which was reached through a series of meetings which were was attended by the husband, the wife and the husband’s brother and his wife. She said that all the parties who were present at the meeting, including the wife, acknowledged the loan by saying words to the effect of “this is a good idea”. The husband’s mother said that neither the husband nor the wife have made any repayments of the principal amount. At the conclusion of her affidavit, she deposed, “I have always and continue to expect that the entire amount outstanding will repaid to me”.

17. During examination in chief, the husband’s mother said that she had a quadruple heart bypass in late November 2013. At the time of questioning, she said that she felt “reasonably ok” but was short of breath.

18. The husband’s mother was cross-examined in relation to the loan asserted by the husband. She said that she gave the husband $37,500 and the funds were sourced out of her husband’s superannuation.

19. The husband’s mother was also cross examined about the quantum of funds and the method by which they were transferred to the husband. The husband’s mother indicated that she probably transferred the money as a cheque. She said that she could not remember the method of transfer.

20. She denied the proposition that she only gave the husband $17,500.

21. In relation to the terms of the loan, the husband’s mother stated that the husband was to pay her back on a monthly basis and that she currently received $115 each month.

22. She said that she wrote the draft of her affidavit with assistance from her son, Mr O. She stated that she had difficulty recalling whether, and if so how, she had instructed the husband’s solicitor to incorporate her draft into final form.

23. When it was put to the husband’s mother that she lent the husband $17,000, she reiterated that she had lent him $37,500. The husband’s mother then said that given her health, she was not in a position to answer further questions. She also indicated that the husband’s brother managed her finances for her.

24. The husband’s brother, Mr O, also set out the terms of the loan agreement in his affidavit sworn on 27 February 2014. He said that he and his wife received a loan in the same terms as that provided by his mother to the husband and the wife, namely that:

    a)his mother lent him and his wife the amount of $37,500;

    b)interest accrued and was to be paid on a monthly basis at 8 per cent per annum;

    c)he and the husband would pay an amount of $146 via direct credit into his mother’s account on a monthly basis with the sum being varied at his mother’s discretion;

    d)he and the husband would pay his mother’s bills in equal instalments, and any shortfall between the monthly interest accrued and the sum of the monthly direct credit and bills paid would be added to the loan balance at the beginning of the following month; and

    e)repayment of all or part of the loan and interest could, and still can, be required by his mother at her discretion.

25. The husband’s brother deposed that in June 1996 he conducted a series of meetings at his mother’s house. These meetings led up to 5 August 1996. At those meetings the husband and wife were present as was the husband’s mother.

26. The husband’s brother provided the same evidence as that provided by the husband in relation to the set-up of a direct credit to his mother’s account in 1996, whereby an amount of $146 was paid to her account each month, apart from two occasions where the amount was changed. Mr O said that he and husband continue pay the amount of $146 to their mother’s account to the present date.

27. The husband’s brother outlined that between 1996 and 2008 he would periodically send the husband their mother’s bills and the husband would pay them. This arrangement stopped in January 2008 at his mother’s request. Mr O said that his mother told him to “Stop sending [the husband] my bills. I don’t want to burden him and [the wife] with these issues when they are facing so many challenges with [the wife’s] illness.” He outlined that since January 2008, he has paid most of his mother’s bills and the husband has not paid any of the bills.

28. The husband’s brother annexed to his affidavit an Excel spreadsheet titled “Loan Records … & …” which showed the principal outstanding, monthly interest accrued and the payments made from 5 August 1996 until 31 August 2003.

29. The husband’s brother also gave oral evidence.

30. During his oral evidence, Mr O said that he prepared a spreadsheet to record interest payments on the loan from his mother. At the date of the 2014 hearing, this spreadsheet projected the loan figures to 28 February 2014. That document became Exhibit H6.

31. During cross-examination, the husband’s brother was questioned as to whether he assisted his mother to prepare her affidavit. The brother acknowledged that he had assisted his mother prepare the affidavit on the basis of her poor health and limited understanding of financial matters. He also said that he had assisted his mother with her financial affairs for the last 30 years.

32. When asked about whether his mother had informed the Government about her advances in relation to her receipt of a pension, the husband’s brother said that she had informed them about the payments by him and the husband but not about the interest accruing.

33. Upon being questioned as to whether the wife was supportive of the loan, the husband’s brother said that the wife “was always warm and enthusiastic”, and often made comments that were supportive of the loan agreement and the benefits that it would provide to his mother.

34. Mr O was then questioned as to the purpose and quantum of the loan. He said that he understood that the husband and wife required the loan to address the difference in housing prices when they moved from Melbourne to Sydney.

35. It was suggested that the husband’s mother advanced $17,000 to the parties. The husband’s brother maintained that the total amount provided to him and to the husband was $75,000.

36. The husband’s brother was then questioned as to the reliability of the spreadsheet prepared by him. He indicated that he prepared the spreadsheet in 1996 and migrated the figures across different spreadsheet programs. He said that he created the spreadsheet tendered at trial by copying and pasting the figures from the original spreadsheet into a new document. He also said that he incorporated various bill payments into the spreadsheet.

37. Mr O agreed to provide a document that portrayed a continual stream of all interest and bill payments. Cross-examination was suspended and he prepared this document overnight. 

38. Tendered into evidence the following day was an email the husband’s brother had sent the previous night to the solicitors for the husband and the wife attaching an updated spreadsheet for the loan moneys owing to the husband’s mother up to 31 July 2010. He confirmed that after this date, he stopped updating the spreadsheet. The spreadsheet provided that the principal outstanding as at 31 July 2010 was $54,115. Interest accrued at 8 per cent per annum and the amount of $115 was applied toward the interest owing via bank credit every month.

39. The husband’s brother said that he and the husband set the monthly payment at $115 in 2000 and that he did not have any reason to change this amount over the ensuing 14 years.

40. On this basis, Mr O said that the extrapolated figures demonstrated the quantum of the husband’s loan up to 28 February 2014. The balance owing at that date would be $69,099.

41. In cross examination, the wife was asked about the loan asserted by the husband from his mother of $37,500. She confirmed that it was her belief that the husband’s mother did not lend her and the husband $37,500. When asked about the basis of her recollection that the funds provided from the husband’s mother amounted to $17,000, the wife said that it was based on her recollection of discussions in the Y property. Further she said she and the husband had more than enough money in the bank at that time. She initially asserted that the funds were provided as a gift but later clarified that she and the husband were holding the funds for the husband’s mother. She asserted that the reason for the advance was to enable the husband’s mother to obtain the pension. She stated that there was no time frame for which the funds were to be held. The wife said that she would never have agreed to the funds being provided as a compound interest loan.

42. Counsel for the husband submitted that the evidence of the husband, his mother and his brother Mr O as to the advancement of $37,500 and the use of this money to purchase the Y property should be accepted.

43. Counsel for the husband further submitted that:

    ·The husband made monthly payments, up and including the date of the hearing;

    ·The husband’s mother has not called for the loan;

    ·The husband will continue to have the benefit of the loan during his mother’s lifetime;

    ·This benefit is contingent on the husband continuing to make the monthly payments;

    ·Both the husband and the wife used these funds during the marriage; and

    ·As the wife benefitted from these funds, this matter is also a s 75(2) matter;

    ·Any submission from the wife that the debt is statute-barred is irrelevant, as the parties’ conduct indicated that they clearly understood that the husband’s obligation to repay the debt continued;

    ·There is no evidence that the husband’s mother requires immediate full repayment; and

    ·The parties used this money to acquire their property.

1. At paragraph 44, the Court found:

   44. Crucial to the power under s 79 is in our view that there be, in the circumstances of this case, ``property'' of the deceased member. It is clear that, upon his death, save to the extent of the productivity benefit, nothing became payable by the DFRDB Authority to the estate of the deceased member. The conclusion is irresistible that the widow becomes entitled to payments in her capacity as the spouse of the deceased member. On his death, on the proper construction of the DFRDB Act, the deceased member ceased to have a superannuation interest in the Scheme and new interests personal to those entitled to them arose. Those relevant for present purposes included the entitlement of the widow to a pension under s 38 of the DFRDB Act or a commutation of such entitlement pursuant to s 41A of the Act. Other interests arose in favour of the children to whom we have earlier referred. There is in our view no inconsistency between the legislative provisions. The general provisions of Part VIIIB of the Family Law Act could not properly operate to impact upon the rights of third parties such as the spouse in this case.

2. In this case, the husband’s superannuation entitlement for which a splitting order is sought, is clearly not the property of the Estate. It is therefore necessary to consider whether the husband’s superannuation entitlement, which is still in the growth phase, can be considered to be his property so that it constitutes the “property of the parties to the marriage or either of them” as required by s 79(8).

3. Prior to the introduction of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) in December 2002 and the subsequent decisions of Hickey and Coghlan & Coghlan (2005) FLC 93-220 (“Coghlan”) regarding the effect of those amendments, superannuation was generally considered to be a financial resource rather than property (Crapp & Crapp (1979) FLC 90-615 and Coulter & Coulter (1990) FLC 92-105).

4. The Full Court in both Hickey and Coghlan determined that it was unnecessary to resolve the argument of whether a superannuation interest came within the definition of property in s 4(1). Property is widely defined in s 4(1) as:

   (a)  in relation to the parties to a marriage or either of them--means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion..

5. In Hickey their Honours Nicholson CJ, Ellis and O'Ryan JJ found that the effect of s 90MC (which provides that a superannuation interest is to be treated as property for the purposes of the definition of matrimonial cause and de facto financial cause in s 4) is that in s 79 proceedings a superannuation interest was to be “treated as if it were property even though it is not” irrespective of whether a splitting or flagging order is sought pursuant to Division 3 of Part VIIIB. Their Honours Nicholson CJ, Ellis and O'Ryan JJ outlined:

   74. Section 90MS(1) provides that in proceedings under s. 79 the Court may ``in accordance with this Division'' also make orders in relation to superannuation interests. The reference to ``this Division'' is a reference to Division 3, which includes ss. 90MS, 90MT, 90MU and 90MUA only.
   75. Although, for obvious reasons, the definition of property in s. 4 was not amended to include a superannuation interest or deem such an interest to be property, the effect of s. 90MC is that in proceedings in relation to property under s. 79 a superannuation interest is to be treated as property irrespective of whether or not a splitting or flagging order is sought or proposed to be made. As was submitted on behalf of the husband, the expression ``treated as property'' should be understood as meaning ``treated as if it were property even though it is not'' and that it should be so treated for the purposes of s. 79. It was further submitted that the intention of the Parliament is clear from Note 1 to s. 90MS. Because a superannuation interest is to be treated as property in s. 79 proceedings it follows that it will be included in the list of property and valued at what is step one of the preferred four step approach to the determination of an application pursuant to s. 79. At step three the superannuation interest may be taken into account, as are other items of property and financial resources, pursuant to the provisions of s. 75(2) if the interest is relevant. The superannuation legislation introduced reforms which are directed to how a court will deal with a superannuation interest at steps one and four of the preferred four step approach in the determination of an application under s. 79. The legislation did not amend s. 79 or s. 75.

6. The Full Court also stated at paragraph 34 that in making orders in accordance with s 90MS, the Court is exercising its powers under s 79 (bold emphasis added):

   34. Section 90MT thus specifies orders the Court may make in accordance with s. 90MS, namely an order allocating a defined amount to a spouse, an order allocating a defined percentage to a spouse and an order applicable to percentage only interests. However, when making such an order the Court exercises its powers under s. 79. This has the consequence that the order must meet the requirements of s. 79(2).

7. However, in the subsequent decision of Coghlan, the majority of the Full Court departed from the interpretation in Hickey that the effect of s 90MC is that a superannuation interest is to be treated as property, regardless of whether or not a splitting order or flagging order is sought under Part VIIIB. The majority found that the sole purpose of s 90MC was to confer jurisdiction on the Court with respect to the making of orders in relation to superannuation.

8. The majority of the Full Court in Coghlan defined superannuation as “another species of asset” and said that the preferred approach was to deal with it separately from “property” as defined in s 4(1). However, the majority accepted that the Court may, in the exercise of its discretion, include a superannuation interest as an item of property in certain circumstances, including where the Court is satisfied the superannuation is indeed property within the meaning of the definition in s4(1):

   61. Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as ``the first step'' in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.

9. The problems of treating a superannuation interest which is still in the growth phase as “property” were outlined by Thackray AJ in Woollams & Woollams (2004) FLC 93-195:

   50. I should, of course, say that this discussion has proceeded on an un-stated premise — namely that the valuation of an interest in a superannuation fund pursuant to the Regulations throws up a figure that is not in fact the real value of the fund to the parties. This would seem to be the firm view of most of the Judges and Federal Magistrates to whose decisions I have referred above. It is certainly my view — at least in the case of accumulation funds in the growth phase. And I also believe from my experience as a solicitor, barrister and Registrar that this is the view of litigants who see much greater value attaching to assets they can readily access than to superannuation of similar ``value'' that they will not be able to access for years.
   51. No doubt this is the reason why the legislation makes plain that the Court is obliged to value the entitlement in accordance with the Regulations only in those cases where it intends to make an order pursuant to s 90MT(1). However, unless the entitlement is to be split fairly evenly, there may still arguably need to be an adjustment in some cases where an order is made under s 90MT(1) to compensate the party who is left with the greater proportion of the superannuation entitlements and a lesser proportion of the realisable assets.

10. However, as outlined in Coghlan, the Court may, in its discretion, include a superannuation interest as an item of property. In Picton & Picton [2005] FamCA 1392 his Honour Watts J found that an accumulation interest in superannuation did fall within the definition of property as defined in s 4(1):

    94.      I am satisfied that superannuation interests in this matter which are accumulation interests in the growth phase are indeed property within the meaning of Section 4(1). 

    95.      I therefore intend to include the superannuation in this case in the list of property and not create a second pool of “another species of asset” which is different from the other property. 

11. I propose to include the husband’s superannuation as part of the property of the parties to the marriage. Section 90MT(2) provides that, if a splitting order is to be made, the value will be calculated in accordance with the Family Law (Superannuation) Regulations 2001. I have had regard to the issues raised regarding the valuation of superannuation entitlements by Thackray J above, and the fact that the Estate will have immediate access to the superannuation funds, when considering s 75(2) factors and when determining whether, pursuant to s 79(2), I am satisfied that in all the circumstances, it is just and equitable to make the order.

12. If I am in error about my decision to include the husband’s superannuation as the property of the husband, I note that in Coghlan the Court found that the effect of s 90MS is that in property settlement proceedings pursuant to s 79, if there is a splitting or flagging order made under Part VIIB, those orders are made “under” s 79. Their Honours Bryant CJ, Coleman and Finn JJ outlined:

    44. …s 90MS(1) does have the effect, in our view of requiring that in a case where the Court intends to make orders in relation to superannuation interests of the spouses, it must do so ``under'' s 79 (although s 90MS(2) makes it clear that the Court cannot make an order in relation to a superannuation interest except in accordance with Part VIIIB). In other words, the Court must apply to superannuation interests the matters to be taken into account under s 79.

13. It is arguable that it follows, from the majority’s finding in Coghlan, that in property settlement proceedings, all the powers which may be exercised by the Court under s 79, including its powers under s 79(8), may also be exercised when making superannuation splitting orders in accordance with Part VIIIB, regardless of whether or not the superannuation constitutes “property” as defined in s 4(1). This is consistent with Warnick J’s (dissenting) interpretation of the majority’s decision (bold emphasis added):

    101. As will be later seen, both those in the majority and I share the view that, at least when an order under Part VIIIB is sought, the effect of Part VIIIB is to invoke all the terms of s 79, in proceedings with respect to such orders.
    102. As indicated, it seems to me that the majority has accepted that, where an order under Part VIIIB is sought, superannuation is to be dealt with under s 79 in the same way as property, notwithstanding that their Honours concluded that it is neither property, nor to be treated as property.

14. As outlined earlier in these reasons, the Full Court in Casey specifically dealt with, and resolved in the affirmative, the question of whether a court exercising its jurisdiction under s 79(8) of the Act could make orders in accordance with s 90MT. I do not find that any provision in Part VIIIB precludes orders being made in accordance with that part in circumstances where one of the parties to the marriage has been substituted by a legal personal representative under s 79(8).

15. I find that the Court has the jurisdiction to make a splitting order in relation to the husband’s superannuation interest so long as I consider the interest is or is to be treated as “the property of the parties to the marriage or either of them”. In the present case, I find that the husband’s interest in Asgard is the “property” of the husband, or, alternatively, that even if it is not property as defined by s 4(1), that it is to be dealt with as the “property” of the husband pursuant to s 90MS. Accordingly, all the Court’s powers under s 79, including s 79(8), are invoked in respect of any splitting order made. Unlike the fact circumstances dealt with in Casey, there are no intervening third party interests in the husband’s superannuation entitlement that would prevent the Court from dealing with it as if it were the husband’s property.

16. However, the Court only has the power to make the orders sought by the husband if the requirements in s 79(8) are satisfied, namely, that the Court of the opinion that it would have made an order with respect to property if the wife had not died and that it is still appropriate to make an order with respect to property.

17. There are very significant reasons why it was appropriate to make a splitting order had the wife not died and there are still very significant reasons why it is still appropriate.

18. At the time of 2014 hearing it was as clear as it could be that the wife would die within 18 to 24 months of the hearing. Sadly that evidence proved to be far too optimistic and she survived only for months after that event. Had a splitting order been made before her demise it would have transformed to a cash payment to the Estate from the superannuation fund upon evidence of her demise being provided. The making of a splitting order now in favour of the Estate will have the same effect now if made, i.e. the superannuation fund will pay the Estate cash.

19. The husband and the children live in the former matrimonial home. The husband seeks to retain the home for his own benefit and for the children’s benefit. There are many reasons why that would be helpful to the children in the circumstances they now find themselves in.

Orders which should be made

1. I propose orders which will give effect to the following division.

2. The husband seeks that he retains the former matrimonial home. The Estate does not oppose that occurring if the Estate can receive the wife’s entitlements in the form of other property.

3. The husband sought in his minute of order that the Estate pay any stamp duty payable on the transfer of the Estate’s interest in the former matrimonial home to him. However, in his oral evidence and/or submission the Court was told the husband had made enquiries and was satisfied no stamp duty would be charged on the transfer made from the Estate to him pursuant to a Family Court order made under s 79.

4. The husband sought the following order as a property order:

   The Executors and Trustees of the Will of the late [Ms Meddow] dated 24 January 2014 (“the Will”) are hereby restrained by injunction from disclosing the existence of the Testamentary Trusts created by the Will to the children [A] and [B] born … 2006 until their 21^st birthday being … 2027.

5. No submission was addressed to this order during the 2015 hearing. It is difficult to see why the children should not know, at a time when they might be interested to know about the legacy left to them by their mother, what that legacy is. In any event such an order may not be a property order, rather a parenting order. Further, without evidence to establish why it is in the best interests of the children that such an order be made I would not be prepared to make same.

6. In exhibit H7 the last order sought was as follows:

   7.        The orders made 31 March 2014 be discharged.

7. The Orders of 31 March 2014 included the following order, which I have referred to earlier, which was a parenting order in favour of the wife’s parents:

   That the children spend time with the Wife's parents as follows, or as otherwise agreed:

   a)        For a two week period in Canada during the children's long Christmas vacation each alternate year, the first of such occasions to be in the Christmas holidays 2015-16.  That for the purpose of this period, the Husband shall give to the Wife's parents six (6) months notice of the time during which such travel may occur;

   b)        For one week per annum during the other school holidays (June/July, August September, Easter) in Australia with the Husband to give the Wife's parents six (6) months notice of the time during which such travel can be arranged

   c)        such other times as may be agreed with in Australia or otherwise

   d)        That on the occasions the children spend time with the Wife's parents in Canada (or outside Australia) the Wife's parents and the Husband give permission for the children to travel as unaccompanied minors

   e)        that the Wife's parents pay the cost of such time spent and travel

   f)        That the Husband ensure the children have at all material times valid passports and to make them available to permit such travel

   g) That the Husband encourage the children to write to and to Skype the Wife's parents on a regular basis. 

8. Following the demise of the wife most of the parenting orders made on 31 March 2014 became redundant. However one Order would not have expired with the death of the wife. That Order provided for the time the children would spend with the maternal grandparents. For the purpose of making the Orders the wife’s parents were made parties to the proceeding.

9. The wife’s parents participated in the proceeding under s 79 only as the legal representatives of the wife’s Estate and were not joined in their own right. As such it would be procedurally unjust to make the order sought by the husband in the absence of clear evidence that the wife’s parents were on notice that such order was sought by the husband.

10. Notwithstanding the unusual circumstance where the wife’s parents were the Executors of the wife’s Estate and also former parties to the proceedings in their own right (for the purpose only of making consent parenting orders which affected them) it was not clear to me that they comprehended or might reasonably be taken to have understood that the husband sought to discharge the Order made in their favour on 31 March 2014, if in fact that is what he sought to achieve.

11. The Estate will receive:

Assets	($)
·       Wife’s Ford vehicle	10,000
·       Wife’s jewellery	500
·       Wife’s contents	3,000
·       Wife’s paid legal costs	237,739
·       Wife’ superannuation	20,425
·
·
Total Assets	$271,664

Liabilities
·       Loan from wife’s parents	200,425
·       Money paid by wife’s parents for funeral	9,754
·
·
·
·
Total Liabilities	$210,179
Net Assets (including superannuation)	$61,485

Cash component to be paid by the husband $1,105,461

Total benefit from orders:       $1,166,946

1. The Estate is entitled to $1,166,946 of assets and superannuation split as determined by me herein. The shortfall is therefore $1,105,461 which will need to be met by the husband. The husband proposes that be met from his superannuation.

2. The husband will receive:

Assets and addbacks

($)

·       J Street, Suburb H (former matrimonial home)

2,125,000

·       BMW vehicle

18,550

·       Cash at Bank- Credit Union

2,700

·       Money payable to husband by Mr U

45,871

·       Z Services trust

31,421

·       25 per cent share of XYZ

30,000

·       200 Goodman Group shares

1,240

·       897 AMP shares

5,776

·       Telstra shares

1,300

·       Household contents

3,000

·       Rental bond

·       M Investments Pty Ltd

·       Paid legal costs

·       Husband’s superannuation

3,580
242
152,169
1,724,231

Total Assets (including superannuation)

$4,145,080

Liabilities

·       Loan from Mr C

37,000

·       PP Electrical

1,900

Total Liabilities

$38,900

Net Assets (including superannuation)

$4,106,180

Less cash payable to estate   $1,105,461

Total benefit from orders $3,000,719

1. For the reasons stated herein, I make the Orders set out at the commencement of this judgment determining that, in all the circumstances, it is a just and equitable distribution of the parties’ assets and superannuation.

I certify that the preceding six hundred and seventy (670) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 13 November 2015.

Associate:

Date: 13 November 2015