Mullis & Quimby - [2022] FedCFamC2F 1046

Federal Circuit and Family Court of Australia
(DIVISION 2)
Mullis & Quimby [2022] FedCFamC2F 1046

File number(s): SYC 5033 of 2013

Judgment of: JUDGE MORLEY

Date of judgment: 12 August 2022

Catchwords: FAMILY LAW – PROPERTY – adjustment of interests under section 90SM – de facto Wife asserts Kennon claim –de facto Wife asserts debts which are disputed by the de facto Husband– examination of the property pool where there is no joint ownership of property between the de facto Husband and Wife

Legislation:
Evidence Act 1995 (Cth) – section 50

Family Law Act 1975 (Cth) – sections 44, 66C, 90SF, 90SM, 90SN, 117B

Limitation Act 1969 (NSW) – sections 14 and 16

Judiciary Act 1903 (Cth) – section 79

Cases cited:
Benson & Drury [2020] FamCAFC 303

Dickons & Dickons [2012] FamCAFC 154

Fields & Smith [2015] FamCAFC 57

Fontana & Fontana [2018] FamCAFC 63

Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395

In the Marriage of Biltoft C.J. & Biltoft V. (1995) FLC 92-614

In the marriage of Kowaliw (1981) FLC 91-092

Keating v Keating [2019] FamCAFC 46

Kennon v Kennon (1997) FLC 92-757

Masoud & Masoud [2013] FamCA 763

Masoud & Masoud [2016] 54 Fam LR 245

Minterly & Minterly [2013] FamCA 418

Mullis & Quimby [2019] FCCA 1516

S & S [2003] FamCA 905

Stanford & Stanford (2012) 247 CLR 108

Vadisanis & Vadisanis & Anor [2014] FamCAFC 97

Division: Division 2 Family Law

Number of paragraphs: 182

Date of hearing:

Place: Sydney

Counsel for the Applicant: Mr Jackson

Counsel for the Respondent: Mr Dura
ORDERS

SYC 5033 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MULLIS

Applicant

AND:
MS QUIMBY

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

12 August 2022

THE COURT ORDERS THAT:
1.That pursuant to section 90SM of the Family Law Act 1975 (Cth):-
(a)Within 30 days the Wife pay to the Husband the sum of $288,608.00.
(b)Simultaneously with payment by the Wife to the Husband of the sum referred to in paragraph (a) of this order, the Husband sign all documents and instruments and do all things necessary to transfer to the Wife the whole of his right title and interest in the real property at Street A1, Suburb B in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier … (“the property”) and simultaneously with such payment the Wife shall be solely responsible as between the Wife and the Husband for all outgoings payable in relation to the property and the Wife shall indemnify and keep indemnified the Husband in relation to all and any such payments, and further simultaneously with such payment the Wife shall do all things necessary to discharge the mortgage currently registered over the property by Bank J being registered dealing number …80 (“the mortgage”) so as to release the Husband from all and any liability in relation to the mortgage.
(c)That in the event that the Wife does not pay to the Husband the sum referred to in paragraph (a) of this order within 56 days from the date of this order, or does not comply with paragraph (b) of this order, then the Wife shall forthwith thereafter and at her sole expense as between herself and the Husband engage qualified tradesmen to do all things necessary to rectify the encroachements affecting the boundary between the property and Street A2, Suburb B in the State of New South Wales (“the Street A2, Suburb B property”) and to disconnect the connection between the septic connections of the property and the Street A2, Suburb B property and immediately upon completion of that work the Husband shall sign all documents and instruments and do all things necessary to list for sale the property at a listing price agreed upon between the parties with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:-
(i)In adjustment of rates on settlement;
(ii)In payment of agent’s commission (if any) on sale;
(iii)In payment of legal and all other proper costs of sale;
(iv)In payment to the Bank J of a sum sufficient to discharge the mortgage;
(v)In payment to the husband of the sum of $288,608 together with any interest payable thereon pursuant section 117B of the Family Law Act 1975;
(vi)In payment of the balance to the wife.

(d)That in the event that paragraph (c) of this order operates and the property does not sell by private sale within five months from the date of this order then the Husband shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between the parties at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the Wife shall be solely responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale shall be applied as provided in paragraph (c) of this order.
(e)That in the event that paragraph (d) of this order operates and the property does not sell by public auction in accordance with paragraph (d) then the property shall be resubmitted for sale by private treaty in accordance with the provisions of paragraph (c) of this order and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in paragraph (c).
(f)That in the event that the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of New South Wales or his or her nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the President or his or her nominee in making such determination.
(g)That the Husband is the sole owner in law and in equity as between himself and the Wife of all items of real property, personal property, financial assets and financial resources, including superannuation entitlements, currently in his power, possession or control other than as specifically dealt with elsewhere in this order.
(h)That the Wife is the sole owner in law and in equity as between herself and the Husband of all items of real property, personal property, financial assets and financial resources, including superannuation entitlements, currently in her power, possession or control other than as specifically dealt with elsewhere in this order.

2.That in the event that either party refuses or neglects to comply with any part of order 1 in relation to the execution of any deed, instrument or document, the court appoints and authorises the Registrars of the Federal Circuit and Family Court of Australia to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mullis & Quimby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction

These are property proceedings between Mr Mullis, the Applicant de facto Husband (‘the Husband’) and the Ms Quimby, the Respondent de facto Wife, (‘the Wife’).
They commenced living together in a de facto relationship from either sometime in 1988 (according to the Husband) or from sometime in late 1991 or early 1992 (according to the Wife). They never married.
There are two children of the parties’ relationship, X, born in 2004, and Y, born in 2005.
The parties separated on an unspecified day in September 2012 at which time the Husband moved out of their common home at Street A1, Suburb B, NSW. Both children remained living with the Wife.
Pursuant to section 44(5) of the Family Law Act 1975 (Cth) (‘the Act’), the last day for filing an application for a property settlement order under section 90SM of the Act was 30 September 2014.
The Husband commenced proceedings by seeking parenting orders only in his Initiating Application field on 29 August 2013.
The Wife filed her Response in relation to parenting issues on 31 October 2013.
On 3 March 2014, Judge Walker made an order granting leave to the Husband to file an Amended Application seeking property settlement orders within six weeks. The Husband did not take advantage of that leave and did not file his Amended Initiating Application seeking property settlement orders and leave to bring such application out of time under section 44(6) until 14 May 2015.
The Wife filed an Amended Response on 6 July 2015 seeking that the Husband’s application for property settlement orders be dismissed as having been filed out of time.
Final parenting orders were made by consent on 30 April 2018, providing that:
(1)The parents have equal shared parental responsibility for the children X and Y;
(2)The children live with the Wife and spend time with the Husband “on a liberal and flexible basis in accordance with their wishes” and have telephone communication with their Husband “on a liberal and flexible basis in accordance with their wishes with both parties to facilitate such telephone communication.”
On 18 April 2019, I conducted a hearing of the Husband’s application for leave to proceed out of time. On 7 June 2019, I delivered Reasons for Judgment and made an order extending the time for the Husband to apply for orders under section 90SM to 14 May 2015.[1]
[1] Mullis & Quimby [2019] FCCA 1516.
The Husband filed a Further Amended Initiating Application on 7 July 2020 setting out final property settlement orders sought by him. The Wife filed her Further Amended Response setting out the final property settlement orders she sought on 27 August 2020.
A final hearing took place over four days on 1 October 2020, 2 October 2020, 6 April 2021, and 7 April 2021.
The Husband was represented by Mr Jackson of Counsel and he sought orders as set out in a Minute of Orders admitted into evidence as Exhibit A5 during the hearing.
The Wife was represented by Mr Dura of Counsel and she sought the orders as set out in her Further Amended Response filed 27 August 2020.
By the end of the final hearing, X was 16 years of age and Y was 15 years of age.
The materials relied upon and final hearing
The Husband relied upon the following materials:
(1)Case Summary Document prepared by Mr Jackson;
(2)Further Amended Initiating Application filed 7 July 2020;
(3)Affidavit of the Husband affirmed 28 August 2020 and filed 1 September 2020;
(4)Financial Statement of the Husband sworn or affirmed 31 August 2020 and filed 1 September 2020;
(5)Affidavit of Mr K, the single expert witness real property valuer, sworn 25 September 2020 and filed 28 September 2020; and
(6)The Husband’s Minute of Orders sought on final hearing (exhibit A5).
The Husband also relied upon the following documents admitted into evidence as exhibits during the hearing:
(1)Exhibit A1 – being the Husband’s whole tender bundle containing:
(a)Bank records for his Westpac accounts ending #...03 and #...66;
(b)Bank records for his Bank J accounts ending #...05 and #...06;
(c)Certain Bank J cheque butts;
(d)A selection of receipts for materials, tools, and labour costs relating to the construction of the dwelling at Street A2, Suburb B NSW for over the amount of $900; and
(e)An invoice from Company H and deposit receipt dated 28 February 2001.
(2)Exhibit A2 – being a summary pursuant to section 50 of the Evidence Act 1995 (Cth) of transactions marked with highlighter statements for the Husband’s Bank J account ending …52 for the period 25 May 2005 to 25 August 2011 the source documents were served in accordance with the requirements of the section);
(3)Exhibit A3 – being paragraph 52 of the Wife’s affidavit sworn 31 October 2013 and filed in the proceedings that day; and
(4)Exhibit A4 – being a “Loan Acceptance Document” from Westpac signed by the Wife dated 5 March 2021 and “Your Loan Authority Document” from Westpac signed by the Wife dated 5 March 2021.
The Wife relied upon the following materials:
(1)Case Outline Document prepared by Mr Dura and filed 29 September 2020;
(2)Further Amended Response to Further Amended Initiating Application filed 27 August 2020;
(3)Affidavit of the Wife sworn and filed 10 September 2020;
(4)Financial Statement of the Wife sworn or affirmed and filed 10 September 2020; and
(5)Affidavit of Ms L (the Wife’s mother) sworn nine September and filed 10 September 2020.
The Wife also relied upon the following documents admitted into evidence as exhibits during the hearing:
(1)Exhibit R1 – the whole of the Wife’s tender bundle, being:
(a)Three account payable notices directed to the Wife from Centrelink dated 11 September 2020;
(b)A one page document entitled “Higher Education Loan Program (HELP) 553”;
(c)16 pages of photographs of Street A1, Suburb B;
(d)10 pages of photographs of Street A2, Suburb B;
(e)Building Inspection Report of M Pty Ltd dated 9 July 2020 on Street A2, Suburb B;
(f)Building Inspection Report of Company N dated 15 July 2020 on 52;
(g)Individual Taxation Return of the Husband for year ended 30 June 2020; and
(h)Australian Taxation Office Activity Statement of the Husband from 4 January 2011 to 7 September 2020;
(2)Exhibit R2 – being the Financial Statement of the Husband sworn or affirmed 12 May 2015 and filed in the proceedings 14 May 2015;
(3)Exhibit R3 – being the Financial Statement of the Husband sworn or affirmed 12 July and filed 13 July 2018;
(4)Exhibit R4 – being loan statements for the Husband’s loan account ending #...52 dated 14 November 2018 to 1 February 2019;
(5)Exhibit R5 – being a letter from Willis & Bowring Solicitors to Anne Day & Associates dated 7 August 2020;
(6)Exhibit R6 – being a letter from Anne Day & Associates to Willis & Bowring Solicitors dated 26 August 2020;
(7)Exhibit R7 – being statements for a Westpac Bonus Saver Account ending #...82 in her sole name dated 27 September to 29 October 2002 and 29 April to 29 May 2003;
(8)Exhibit R8 – being a bundle of documents relating to the Wife from Centrelink; and
(9)Exhibit R9 –being a bundle of correspondence from Centrelink to the Wife between 24 January 2005 and 22 April 2006.
A Joint Balance Sheet is also in evidence as Exhibit CT1.
The Husband gave evidence in chief, was cross examined by Mr Dura for the Wife, and was re-examined.
The Wife gave evidence in chief and was cross examined by Mr Jackson for the Husband.
The Wife’s lay witness, Ms L, gave evidence in chief and was cross examined by Mr Jackson. Though Mr Jackson made it clear that Mr K’s affidavit as single expert witness was read in the Husband’s case, he was not required for cross examination.
Mr Jackson relied on the written submissions contained in his Case Summary document and made oral submissions. Mr Dura relied on his written submissions in his Case Outline document and made oral submissions and then Mr Jackson made oral submissions in reply.
In preparing these Reasons for Judgment I have carefully considered all of the material and submissions relied upon by each of the parties, including all of the oral evidence, whether mentioned specifically herein or not.
The competing claims of the parties
The Husband sought the following orders, as contained in Exhibit A5;
1. That within seven days of the date of orders the Wife vacate the property and premises known as [Street A1, Suburb B], and thereafter the Husband have exclusive occupancy thereof.
2. Subject to order 10 the Wife pay to the Husband the sum of $300,000.
3. In default of the payment referred to in order to the property at [Street A2, Suburb B] been the land contained in folio identifier … be sold for the best price reasonably obtainable including but not limited to the following:
a. listing the property with a real estate agent operating in the local area is agreed between the parties and failing agreement by the parties in such real estate agent as nominated by the Pres of the Real Estate Institute of New South Wales such appointment at the cost of the Wife.
b. instructing a solicitor or conveyancer to act on the sale and in the presence of agreement a solicitor or conveyancer is appointed by the Pres of the Law Society of New South Wales, at the cost of the Wife.
c. the sale price and listing price be agreed between the parties and failing agreement between the parties, the sale and listing price nominated by the Pres at the time being by the New South Wales Chair of the Australian Property Institute the costs of such appointment to be borne by the Wife.
d. in the event that the property has not been sold within three months of the date of listing than the sale and listing price be varied as agreed between the parties and failing agreement at a sale price and listing price nominated by the valuer appointed by the New South Wales Chair of Australian Property Institute.
4. That the parties shall do all acts and things necessary to cooperate with the real estate agent in order to facilitate the sale of the property.
5. That upon the sale of [Street A2, Suburb B] the sale proceeds be applied in the following manner and priority:
a. in payment of any real estate agents and legal costs of sale;
b. any sum owing to Westpac Banking Corporation Limited or any mortgagee;
c. the sum of $300,000 plus interest owing from the date due for payment until the date of payment to the Husband and any remaining balance to the Wife.
6. In the event that any party refuses or neglects to sign any document or do anything required pursuant to these orders the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to sign such documents and do such acts on behalf of either party.
7. The Husband to do all acts and things necessary including the payment of any necessary money to engage a licensed builder to remove the encroachment of the shed which sits on the rear yard boundary of the properties at [Street A1, Suburb B] and [Street A2, Suburb B] including any necessary asbestos removal and the roof of [Street A1, Suburb B] over the property [Street A2, Suburb B] .
8. On completion of the work referred to in order 7, the Husband will provide the Wife with a survey report indicating any encroachment has been removed.
9. The Wife to permit access for the work referred to in orders 7 and 8 to be undertaken.
10. The payment in order to is due and payable within 28 days of provision to the Wife’s solicitor of a survey report in accordance with order 8.

The orders sought by the Wife in her Response to Further Amended Initiating Application are as follows:
1. That the Further Amended Application filed 7 July 2020 be dismissed.
2. That the Wife be declared pursuant to section 78 of the Family Law Act the sole legal and beneficial owner of the property known as an situate at [Street A2, Suburb B], subject to all encumbrances and all its furniture and contents.
3. That the Wife within 30 days of these orders, pay to the Husband a sum to give effect to a division of the net asset pool of the parties as to 70% to the Wife and 30% to the Husband after taking into account the balance of these orders.
4. Simultaneously with the payment referred to in order three, the Husband shall sign all documents and do all things necessary to transfer all of his right, title and interest in the property situated and known as [Street A1, Suburb B] being the whole of the land contained in Folio Identifier … to the Wife.
5. Each party shall be responsible for any debts incurred in their name.
6. That the Husband pay the Wife’s costs of and incidental to the said Application.
7. That each party shall retain to the exclusion of the other all assets currently in their custody, possession or control.
The evidence
The Husband was born in 1969 was 51 years of age at the time of the hearing. The Wife was born in 1972 and was 48 years of age at the time of hearing.
The Husband says that the parties commenced a de facto relationship by commencing cohabitation in 1988 when he was working as a tradesperson and the Wife was in Year 10 at High School. The Wife says that the parties began a relationship in about 1988 when she was commencing Year 10. In mid-1988 the Husband moved into reside in her family home at Suburb C as a boarder, but without cohabitation between them commencing because the Husband had his own bedroom and bathroom in the home and paid $70 per week as board to the Wife’s mother. The Wife finds corroboration in the evidence of her mother, Ms L, in paragraph 2 of her affidavit, “from about 1988 Mr Mullis lived at my home as a boarder for approximately $70 per week for between 2 and 2 ½ years”.
During 1991 the Husband moved out of the Wife’s mother’s home at Suburb C for a period of time and lived in rental accommodation with his sister, Ms O.
On the Wife’s evidence, the parties’ de facto relationship commenced in late 1991 or early 1992 when the Wife leased premises in Suburb F and the parties moved in together. In 1993 the parties moved into a two bedroom unit leased by the Wife in Suburb P, and then in 1995 they moved to a home in Suburb P which they leased jointly. In 1997 they returned to live with the Wife’s mother at her home in Suburb C full-time until March 2001 and thereafter, part-time until sometime in 2003 when they moved into the property at Street A1, Suburb B.
The Husband says that at the commencement of the cohabitation he was employed as a tradesperson, whilst the Wife says that at the commencement cohabitation Husband was a night filler at a supermarket. At some time in either 1992 on the Husband’s evidence, or 1993 on the Wife’s evidence, the Husband took up employment as a construction worker and between then and 1999 he gained qualification as a tradesperson. In 1999, the Husband commenced working for Mr Q as a construction worker on a contract basis and remained in that situation until the hearing.
When the Wife completed her High School education at the end of 1988 she did a course at a trade college and worked as a hospitality worker and then completed her hospitality qualification. In 1994 she attended a business college and commenced work with Employer R as an admin officer until 1997 when she left and took up a position as a secretary with Employer S.
During 1998 and 1999 the Wife undertook a full-time course at TAFE and worked on contract as a secretary for 20 hours per week. On completion of the course the Wife obtained her Certificate and commenced full-time employment with Employer T. In 2001 she returned to full-time employment with Employer R and various other firms until she left paid employment in 2004 in preparation for the birth of X.
The Wife engaged in some paid employment between the birth of X and Y in 2005. In 2006 or 2007 the Wife started a business with a friend, Ms U, in the entertainment industry, under the business name Company V. The business only provided minor profit and closed in late 2008.
From 2006 to 2010 the Wife undertook contract administration work for various employers during yearly peak periods such as Easter and Christmas.
In 2007 when X was three years old he started preschool two to three days per week and Y started preschool 12 months later in 2008, attending on the same days as X.
In 2009 the Wife obtained her Certificate in Entertainment at TAFE, attending three days per week for six months. During 2010 Wife had part-time casual employment working as an artist twice a week for two semesters and every Saturday for about two years. In 2012 she was employed as a hospitality worker at the Employer W, doing between two and five shifts each week of between four and 10 hours each shift. The Wife says that she lost his job in 2014 due to the Husband’s behaviour at the premises.
In 2016 the Wife “restored” her administration license and began working full-time for various firms, then casual work, then she obtained her current full-time position with a company in October 2018.
On the Wife’s evidence, the Husband did not assist her by caring for the children during occasions when she was attending employment – full-time or part-time – prior to their separation.
On the evidence I accept that both the Husband and the Wife applied their earnings during the period of their cohabitation toward the acquisition, conservation and improvement of their property, individual and joint, and toward the family unit through payment of living expenses. The Husband agreed during cross examination that there was no wastage of the income earned by either himself or the Wife during their cohabitation until December 2012.
The parties agree that at the commencement of their cohabitation, whether in 1988 or late 1991 or early 1992, neither had any assets of value or liabilities.
The parties maintained separate accounts with financial institutions throughout the relationship.
In 2001 the Husband purchased the real property at Street A1, Suburb B, in the state of New South Wales (‘Street A1’) in his sole name for $200,000. He applied $20,000 from his savings to a payment of the deposit on exchange of contracts and a further sum toward the legal and other costs of sale, together with whatever sum was received by him by way of the First Home Owners Grant and $177,276.87 borrowed on a loan account from the National Australia Bank, which took a first registered mortgage over the property as security.
The Wife asserts in paragraph 34 of her trial affidavit that “from about 1996 Mr Mullis and I were saving to purchase a property in which to live”. During cross examination the Husband agreed that the savings accumulated by him and applied to a purchase of Street A1 were accumulated by him after the parties had commenced their cohabitation and that since at least 1991 they were both in paid employment. The savings accumulated by the Husband that were applied to the payment of the deposit on the purchase of Street A1 and the other costs associated with purchase were able to be accumulated because the parties were applying the joint incomes towards their day-to-day living expenses year by year through the 1990s. On the Husband’s evidence, that cohabitation commenced in 1988, the parties had been together in a de facto relationship for some 13 years prior to the purchase of Street A1.
Street A1 was tenanted at the time the Husband purchased it.
At the same time as the Husband purchased Street A1, the Wife purchased the real property at Street A2, Suburb B (‘Street A2, Suburb B’) in her sole name for a purchase price of $150,000. The Husband asserts that the deposit was paid “from savings”, without specifying whose savings, unlike his evidence in relation to his purchase of Street A1 of “my savings”. The Wife’s evidence is that she paid a deposit of $15,000 from $7,500 that she had saved from her earnings in the Westpac bank account and $7,500 that she borrowed from her mother, with the loan being repaid in full by sometime in 2003. Neither party mentions if the Wife received a First Home Owners Grant to assist with the purchase of Street A2, but on the basis that the Wife had not owned any real property prior to that purchase, and that the Husband received the grant (on the Wife’s evidence) for his purchase exchanged on the same day, there is a reasonable inference that the Wife did receive the grant to apply towards the purchase costs.
Both purchases were exchanged at the same time, but the settlement of Street A2 took place about six months after the settlement of Street A1.
Between 2002 and 2005 a home was erected on Street A2. The parties give some competing evidence as to the participation of each in the building of the home, but I accept that the Wife attained an Owner Builders Permit in relation to the construction, the actual building was carried out by the Husband with the assistance of contractors and of two of his friends, one a plumber and one an electrician. The tenor of the Husband’s evidence was that it was entirely his project and that the Wife had no participation. However, I accept the evidence of the Wife in relation to the work she asserts was done by her in paragraphs 42 to 47 her of her affidavit and I accept the evidence of the Husband as to the work he asserts he did on the construction of the property in paragraphs 28 and 29 of his affidavit.
In cross examination, and after being pressed, the Husband accepted that the purchases of Street A1 and Street A2 were, though each purchased in a party’s sole name, a “joint endeavour” and when it was put to him that the building of the house on Street A2 was a “joint endeavour” in that he performed more of the labour involved in the building than the Wife while she was caring for the parties children and undertaking the homemaker role, he agreed.
Further, each party gives evidence of being the source of funds for purchase of materials and payment for labour on the building project. The Husband says in paragraph 27 of his affidavit “I used my income and credit cards to pay for materials and costs” and in paragraph 30 of his affidavit, “I paid for materials and contractors using my income and credit cards.” The Wife says in paragraph 47 of her affidavit, “I used my income and my credit card to pay for materials and tradesmen including friends who were tradesmen assisting us in relation to the construction of the building works.” However, I find that it is plain on all of the evidence that in reality the parties each made contributions, each in their own way, to achieving the building of a house on Street A2, the Husband of the greater part of the actual work, but the Wife enabled him to do so by attending to the other necessary family tasks. Both parties contributed from their income towards the cost of materials and labour up until 2004 when the Wife ceased paid employment in anticipation of the birth of X.
In 2002 the Wife borrowed $54,200 from her mother to assist with the costs of construction and the Wife and her mother completed a document they titled “Acknowledgement of Debt” on 11 October 2002, a copy of which is annexure “A” to both the affidavit of the Wife and the affidavit of her mother. Though the amount lent was $54,200, the document deals with a debt owed by the Wife to her mother of $50,000 and recites that the sum was lent “to assist in the construction of my home at Street A1, Suburb B”, to be repaid with interest at the rate of 5% per annum calculated daily from 11 October 2002 “on or before the expiration of four months after completion of the said construction or upon the refinancing my Westpac Banking Corporation Home Loan, whichever is the earlier”. On the evidence of both of the parties, neither of those events triggering requirement for repayment has occurred. On that basis the debt evidenced by the Acknowledgement of Debt document is not a loan repayable on demand and though it has been outstanding since 11 October 2002, time is not begun to run under section 14 of the Limitations Act 1969 (NSW).
The Wife says in paragraph 48 of her affidavit that “we used the money from my mother to purchase materials and pay tradesmen for work on Street A2, Suburb B”.
The Husband asserted during cross examination that he had no knowledge of the asserted debt until he saw the evidence in chief of the Wife and her mother, whilst both the Wife and her mother asserted in their evidence, including in cross examination of the Wife, that the Husband was well aware of the debt as he was present with them at the time the money was provided and the Acknowledgement of Debt was signed by them. It is their evidence that the Husband was the witness to the signatures of both the Wife and her mother on the document, whereas it was put to the Wife during cross examination that his signature had been forged.
On all of the evidence I accept that the Acknowledgement of Debt document is genuine, that it evidences a debt of $50,000 owed by the Wife to her mother, that there has been no repayment made to date in relation to that debt and the loan remains outstanding. The benefit derived from the loan is found in the home constructed on Street A2.
In 2005 the Husband refinanced his loan account secured on Street A1 and increased the amount owing on the loan account from about $170,000 to $365,000. The Husband asserts that the increased borrowings “were used to complete the house at Street A2, Suburb B”, but he also asserts in his evidence that the house has never been fully completed and blames the Wife for preventing him from doing so.
During his cross examination the Husband was asked what the extra $195,000 borrowings were used for and replied some were used for purchase of a motor vehicle, some used for materials needed for building the house and that $100,000 was “banked to the Wife’s account”. Then when asked what the $100,000 was then used for he replied that he did not know, though he then conceded that about $20,000 was used for further work on the construction of the house on Street A2.
The Wife’s evidence in paragraph 62 of her affidavit is that she assisted the Husband to obtain a “low doc” loan by refinancing with Bank J, increasing the loan from $180,000 to $365,000 with an additional $10,000 credit card limit on a credit card in Husband’s name and that she wanted the increased borrowings to be applied to pay out a tax debt accumulated by the Husband of about $100,000. The Wife asserts however that after purchasing a lounge for $5,561 and repaying her Westpac Credit Card balance of $3,066 the Husband received the balance of the loan funds of about $175,000 into his Bank J redraw account and purchased a new Motor Vehicle 1 for about $26,000 and she is then unaware of how the Husband applied the balance of the funds. This conflicting evidence was not in any manner clarified in cross examination.
The parties’ evidence is confusing as to which of Street A1 and Street A2 they occupied and when. In paragraph 51 of her affidavit the Wife refers to, “when Mr Mullis and I moved into Street A2, Suburb B” she wanted the Husband to obtain a tenant for Street A1 to “supplement their income”. However, other than allowing family members to stay at Street A1 for brief periods of time, the Wife says that the Husband used Street A1 to store building materials and furniture and did not obtain a tenant. The Wife also says in paragraph 90 of her affidavit that in about 2009 she obtained a tenant for Street A2, Suburb B at rent of $495 per week. There would seem to have been periods of time when the Wife and the children resided with her mother at Suburb C whilst the Husband remained living at Street A2, while Street A1 was occupied by his brother. It seems the parties resumed occupation of Street A1 when the tenant was put into Street A2 in 2009.
It seems to be the case that the Wife received the rental income of $495 per week for Street A2 from 2009 until about April 2014 when the tenant left the property and the Wife and children began to use the property jointly with Street A1 for a period of time due to a non-functioning stove at Street A1 and other faults that gradually rendered occupation inappropriate, finally moving into Street A2 on a full-time basis at some time thereafter.
The parties were certainly living at Street A1 at the time of their separation in September 2012 when the Husband left the home and began residing in a de facto relationship with Ms Z at Suburb AB.
The Husband’s evidence is that he did all of the maintenance of the inside and outside the parties’ properties and that the Wife did none. He also asserts that he assisted the Wife with the care of the children on all occasions when he was available to do so and not engaged in earning income. The Wife’s evidences is that she was virtually the sole carer for the children throughout the parties’ cohabitation and that she received little, if any, assistance from the Husband. She does however concede that both parents took the children to their sporting activities on weekends. The Wife asserts that she was solely responsible for the homemaker role – the cooking, cleaning, washing, ironing and shopping – within the family unit during cohabitation. At paragraph 77 of her affidavit, the Wife asserts that she also undertook the maintenance of the parties’ real estate properties by collecting and chopping firewood, mowing lawns and tending to gardens and other matters of “general maintenance around the properties”. The Wife asserts that the Husband mowed the lawns of the properties “and whipper snippered the edges until the children were born”, but that following the children’s birth she took over the mowing and hedging.
Whilst engaged on building the home on Street A2, Suburb B from 2002 until 2005, the Husband did not pay income tax or remit GST collected and in consequence incurred a tax debt of about $75,000 in 2006. The Wife’s evidence is that the debt was initially $109,000 including penalties and interest, but following submissions made by the Wife to the Australian Taxation Office the amount owing was reduced by $30,000. She says that she incurred a tax debt of $26,000, the whole of which was paid on her behalf by her mother. The Wife asserts in her evidence that the Husband incurred a further taxation debt in about 2010 in consequence of failure to lodge returns, but there is no evidence from which a finding can be made as to the composition of the Husband’s income tax debt as between that asserted to have occurred in 2006 and that in 2010.
Both parties agree that the Husband currently repays the tax debt at the rate of $100 per week.[2]
[2] The Husband’s Financial Statement at item 32; the Wife’s trial affidavit at paragraph 68.
The parties have never operated a joint account with a financial institution. At the time of separation and continuing up to the time of hearing, the parties held no jointly owned property and had no joint liabilities.
In September 2012, the Husband vacated Street A1 and commenced cohabitation with Ms Z at her home at Suburb AB. During cross examination the Husband gave evidence that he had not been in a cohabitive relationship with Ms Z since 2013, but admitted that he and Ms Z went on trips together to the United States of America in 2014 and 2018.
Following separation the Husband spent time with the children on alternate weekends during daytime and occasionally overnight, though such overnight occasions occurred without the Wife’s agreement. It seems common between the parties that for a time the children were spending about two days per fortnight with the Husband. Following an incident that occurred on 11 May 2013, the Husband did not spend any time with the children for seven months until orders were made in these proceedings on 13 December 2013 providing for the children to spend time with the Husband daytime only on specific dates in December 2013 and February 2014 and then on alternate Sundays from 10:00AM until 6:00PM, with telephone communication occurring between 7:00PM and 7:30PM on Mondays and Wednesdays.

Further orders were made by consent on 3 March 2014 providing for the Husband to spend time with the children on alternate weekends from 10:00AM Saturday to 5:00PM Sunday commencing 15 March 2014 and then from 5 July 2014 on alternate weekends from 8:30PM Friday to 5:00PM Sunday. The Husband misstated these orders in paragraph 51 of his trial affidavit as “the children to spend time with me overnight in alternating weeks being in the first week from Saturday at 10:00AM to Sunday at 5:00PM and then in the second week from 8:30PM Friday to Sunday at 5:00PM.” The weekend that commenced 5 July 2014 is a continuation of the alternate weekends commencing 15 March 2014.
The Husband was overseas for three weeks in September 2014 and upon his return he did not contact the children to arrange to spend time with them for a further four weeks.
Final parenting orders were made by consent on 30 April 2018 providing for the parties to have equal shared parental responsibility for the children, the children to live with the Wife and to spend time with the Husband “on a liberal and flexible basis in accordance with their wishes.” An order was made for the children “to have telephone communication with their father on a liberal and flexible basis in accordance with their wishes with both parties to facilitate such telephone communication.”
At the time of the final parenting orders, X was 14 years of age and Y was 12 years of age.
In any event the children did not spend any overnight time with their father after about June 2015.
The Husband has not paid any child support for the financial support of the children since the parties’ separation in September 2012. The Wife never sought assessment of child support and payment under the child support legislation. During cross examination it was put to the Husband by Mr Dura that he had at no time paid child support to the Wife for the benefit of the children and he accepted that assertion as correct, adding “she has not asked for any”. When asked if he had ever offered to pay child support he asserted that he had done so on each occasion that the parties had spoken.
In cross examination the Wife agreed that since separation she had not asked the Husband to contribute financially to any specific expenses for either of the children.
In 2014 X had minor surgery at an out-of-pocket cost of $2,300. The whole cost of the operation was covered by the Wife without contribution from the Husband, though the Wife conceded that she never directly contacted the Husband and asked him to contribute to the cost of the operation.
The Wife gives evidence in paragraph 130 of her affidavit that she does not anticipate receiving any child support payments from the Husband in the future and on the basis of the evidence before the Court, I find that to be a reasonable assertion by the Wife.
In about April 2014 the Wife and children moved from Street A1 to Street A2, leaving Street A1 unoccupied since that time. The Husband complains that the Wife did not seek or obtain a tenant for Street A1 from April 2014 to the time of hearing. The Wife asserted during her cross examination that she had been making efforts through that time to render both properties fit for tenancy. The Husband at no time sought any interim orders relating to Street A1 being tenanted.
The wife’s mother, Ms L, resided at Street A2 with the wife and children from mid-2014 until May or June 2015. During this time, the Wife’s mother paid the council and water rates for Street A2 and the utilities accounts and assisted the Wife to pay the required repayments on her credit card.
The only occasion on which the Husband has been to either Street A1 or Street A2 since separation was in late 2013 when he attended to collect some tools.
Since separation, the Husband has paid the repayments required on the loan accounts secured by way of mortgage on Street A1 with Bank J on an interest only basis, whilst the Wife has made such payments required on the loan accounts secured on Street A2 on occasions assisted by her mother, on a principal and interest basis. The Wife asserts in her evidence at paragraph 134 of her trial affidavit that at the time of separation the amount outstanding on the loan accounts secured by mortgage on Street A2 was approximately $152,000 and that the balance owing at September 2020 was $116,800.[3] However, the agreed amount outstanding on the loan account in the Wife’s name with Westpac Banking Corporation as shown at Item 22 on the balance sheet (Exhibit CT1) is $220,000. During cross examination of the Wife Mr Jackson put to her that “the mortgage at Street A2, Suburb B at 27 January 2016 was $151,540.58 and at 26 July 2019 was $125,485.60, so it went down by about $26,000 in 3 ½ years?”, with which the Wife agreed. Part of Exhibit R8 is a print-out in relation to the wife’s Westpac bank accounts as at 6 April 2021 confirming that the amount outstanding on the Wife’s Flexi First Option Home Loan was $220,000. The increase in the indebtedness from $116,800 in September 2020 to $220,000 in April 2021 was explained in the Wife’s evidence in chief (given by leave of the Court) updating her Financial Statement. The Wife clarified that the difference between the amount owing on the loan in her name secured by mortgage on Street A2 stated as $116,800 as at September 2020 and the amount owing as at April 2021 of $220,000 was a further borrowing by her represented by the monies in her bank account with Westpac Bank in a sum of $117,707, where that bank account credit had been $6,021 when she completed her Financial Statement in September 2020.
[3] Item 46 of the Wife’s Financial Statement of 10 September 2020.
The Wife paid both the water and council rates on Streets A1 and A2 for about six months following the parties’ separation, and thereafter paid the council and water rates on Street A1 only, the Husband paying the council and water rates on Street A2.
In paragraphs 109 to 114 of her trial affidavit the Wife gives evidence of maintenance undertaken by her or undertaken at her cost to both Streets A1 and A2 since separation. The Wife was not cross examined on that evidence.
At all times since the Husband purchased Street A1 there has been an encroachment across the boundary between Streets A1 and A2 of a fibro shed that sits “half/half” across the boundary, and by the eaves of the house on Street A1 across the boundary with Street A2 by 8 centimetres. There is no suggestion that the encroachments are at the fault of either of the parties. These encroachments would need to be addressed and rectified if either property were to be sold and the other retained or if both properties were sold. It is the Husband’s case that he can attend to rectification of the encroachments, with him retaining Street A1 and the Wife retaining Street A2. It is the Wife’s case that she should retain both properties and attend to the encroachments, if necessary, in her own time.
The Husband relies upon the affidavit of Mr K, Certified Practising Valuer. Attached to Mr K’s affidavit are valuations of both Streets A1 and A2, Suburb B as at 12 October 2015, 20 February 2017, 3 August 2018 and 18 September 2020. In his valuations as at 12 October 2015 Mr K gave opinion that both properties were “rentable”, and stated a Rental Value for each of $350 per week for Street A1 and $550 per week for Street A2, Suburb B. However, in the subsequent valuations for February 2017, August 2018 and September 2020 he does not assert that the properties are “rentable” and he does not state a Rental Value for either property. In his 18 September 2020 valuation of Street A1, revised by him on 22 September 2020, Mr K states, “the property is unsuitable for rent until outstanding work is completed as listed herein as Essential Repairs. The market rent upon completion of the work is $600/week.” He states that he cannot give any estimate of the cost of repairs. Similarly, in his 18 September 2020 valuation of Street A2, Suburb B under the heading “Market Rent” he states “not suitable for rent” and again states that “the property is unsuitable for rent until outstanding work is completed as listed here in as Essential Repairs. The market rent upon completion of the work is $700/week.” He cannot estimate the cost of the essential repairs.
Mr K notes in his various valuations that the septic pipes servicing Street A1 are attached to the septic system on Street A2. Once again, this “connection” between the properties would need to be rectified before either block could be sold separately or each block sold to different purchasers.
The Wife gives evidence that throughout the parties’ cohabitation her mother assisted the parties financially, even to the extent of buying food for the family unit. After separation she assisted the Wife with caring for the children, including collecting them from school. The Wife’s mother paid the monthly repayments required on the loan account secured by mortgage on Street A2 from January 2012 until the Wife obtained full-time employment in 2016 and has made further payments of that nature from time to time thereafter.
The Wife gives evidence that her mother provided to her $8,500 in 2013 or 2014 to purchase a Motor Vehicle 2 and a further $5,800 in 2015 to purchase a replacement Motor Vehicle 2. The Wife considers the provision of these funds to be loans by her mother to herself with an intent on each side that they be repaid. The Wife says that following separation she received funds from her mother to pay the required repayments on the loan account secured by mortgage on Street A2, Suburb B (as previously referred to), to pay the rates on Street A2, Suburb B, and on Street A1 for six months following separation, to pay health fund premiums, to buy food and clothing for herself and the children, to pay medical expenses for herself and the children and to pay child care fees. The Wife does not give a figure of asserted total indebtedness to her mother for the provision of these funds in her trial affidavit.
At paragraph 11 of the Wife’s mother’s affidavit, the Wife’s mother gives evidence that she has calculated, from a perusal of her bank statements and other correspondence in relation to her investments and an inheritance she received from her mother’s estate, that from January 2012 until February 2020 she “advanced funds in excess of $100,000 to Ms Quimby” from the sources, “$73,300 from income from earnings…$27,000 from mother’s estate…$6,000 rent from Street AC, Suburb C”. The Wife’s mother states that she has “calculated that the sum of $40,100 was applied to the mortgage secured over Street A2, Suburb B” and she annexes to her affidavit copies of the bank statements from which she sourced those calculations. The total of the said amounts is $106,300. The Wife’s mother does not give a set figure of an amount owed by the Wife to her in consequence of funds advanced.
On the Joint Balance Sheet (Exhibit CT1) it is asserted on behalf of the Wife that she is indebted to her mother in a sum of $109,000. The figure is taken from item 50 of the Wife’s Financial Statement of 10 September 2020 where she estimates that the amount owed by her to her mother is $109,000. The debt is disputed by the Husband. The Husband does not address the asserted debt in his trial affidavit, but his trial affidavit was affirmed by him on 28 August 2020 and filed 1 September 2020, whilst the Wife’s trial affidavit was sworn by her on 10 September 2020 and filed that day and the Wife’s mother’s affidavit was sworn by her on 9 September 2020 filed 10 September 2020.
During cross examination the Wife was asked why the Acknowledgement of Debt completed between herself and her mother in relation to the funds provided by her mother for completion of the home built on Street A2, Suburb B addressed a debt of $50,000 when on the evidence the sum provided was $54,200, and she answered in words to the effect of “Mum had money invested in a mortgage, she borrowed money to invest, that was what she was expecting, it came in two parts and we did the Acknowledgement of Debt at a later time.”
The Wife was also cross examined about her evidence in paragraph 92 of her trial affidavit in relation to her mother paying “some of the mortgage payments” and assisting “with payments for the general living expenses and household bills” in a period between January 2012 and the parties separation in September 2012 and she acknowledged that such payments were considered as a gift from her mother, not as a loan. When then cross examined about her evidence in paragraphs 131 and 133 in relation to monies provided to her by her mother to assist with purchasing food and in relation to paying the monthly mortgage payments for Street A2, Suburb B from January 2012 under she obtained full-time employment in 2016, the Wife was asked by Mr Jackson if the provision of those monies to her was considered by her to be a loan or a gift, and she answered that she could not call money provided to her by her mother to help herself and the children survive a gift, but that it was not a loan. In relation to the monies provided to her by her mother for purchase of the Motor Vehicle 2 she was adamant in her response that those monies were a loan, despite there being no formal document of the nature of the Acknowledgement of Debt document from 2002.
During, cross examination of the Wife’s mother, Ms L, she was asked if she had paid any of the wife’s legal costs of the proceedings. She gave evidence of having paid about $50,000 towards the Wife’s legal costs of the proceedings, including the parenting aspect of the proceedings. She was not cross examined to the effect that she had not provided the other monies to the Wife as deposed in her affidavit.
The Husband’s evidence is that he has an income of $1,730 per week gross as a sole trader tradesperson doing contract work, and that he has expenses totalling $1,660 weekly, being an excess of income over expenses of $70 per week. There are no other income earners in his household. He continues to pay $100 per week to the Australian Tax Office to discharge his income tax debt, that being his clear evidence in his Financial Statement and in cross examination, and matched by the Wife’s evidence in that regard, though in his trial affidavit at paragraph 38 he asserts that he pays $300 per week on that debt. I find that the amount he pays is $100 per week.
The Wife’s evidence is that she has an income of $1,263 per week, entirely from her wages as a business owner in employment and not including any government benefits. Her expenses as set out in Part G of her Financial Statement are listed as $931 per week and despite her assertion that the “total of all other expenditure” is “nil” at item 32, that cannot be correct as there is no allowance in Part G for variable expenses such as are found in Part N of a Financial Statement form and accordingly, her true weekly expenses are not in evidence, including in her evidence in chief updating her Financial Statement evidence at the start of her verbal evidence.
The Wife has been sole financial support for the children X and Y since separation in September 2012 when X was 14 years of age and Y was 12 years of age. Except for the very limited amount of time that the children have spent with the Husband since separation, the Wife has been sole carer for the children, with assistance on occasions from their maternal grandmother.
THE LAW
The law relating to the alteration of property interests between two parties in a de facto relationship is governed by section 90SM of the Act.[4] Relevantly in this case, section 90SM(1) vests the Court with power to alter the interests of the parties in property,[5] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[6]
[4] Family Law Act 1975 (Cth) s 90SM.
[5] Family Law Act 1975 (Cth) s 90SM(1)(a).
[6] Family Law Act 1975 (Cth) s 90SM(1)(d).
However, the Court must not make an order under section 90SM unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[7] The legislative process required by section 90SM was considered by the High Court in Stanford & Stanford.[8]
[7] Family Law Act 1975 (Cth) s 90SM(3).
[8] Stanford & Stanford (2012) 247 CLR 108.
In that decision, the High Court held that section 90SM(3) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 90SM(1) altering the interests of the parties to the de facto relationship in property.
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
(a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
(b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
(c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 90SF(3) of the Act, to which section 90SM(4)(e) directs the Court’s attention.[9]
[9] Stanford & Stanford (2012) 247 CLR 108; see, especially, [37].
That the interests as described above are ‘existing’ is of importance, as the Court noted, because the text of the section gives reference to ‘altering’ the interests.[10]
[10] Stanford & Stanford (2012) 247 CLR 108, [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[11]
[11] Stanford & Stanford (2012) 247 CLR 108, [42].
I will examine the matrimonial asset pool and the existing interests of the parties, before determining whether it is just and equitable to make a property adjustment order.
If the Court determines that it is just and equitable to make an order under section 60SM, the Court must then consider what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia.[12]
[12] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395, [39].
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a court when determining a property application:
(a)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[13]
(b)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b), and (c), and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties”; [14]
(c)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[15]
(d)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[16]
[13] Hickey [2003] FamCA 395, [39].
[14] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c).
[15] Hickey [2003] FamCA 395, [39].
[16] Hickey [2003] FamCA 395, [39].

The Full Court pointed out in Hickey that pursuant to the wording of section 90SM, there can only be one property settlement order at any one time, and that the one property settlement order is final, subject only to anything that may be properly done pursuant to section 90SN.[17]
[17] Hickey [2003] FamCA 395, [47].
The Full Court held in Fontana:[18]
… Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513).[19]
[18] Fontana & Fontana [2018] FamCAFC 63.
[19] Fontana & Fontana [2018] FamCAFC 63, [27].
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship, during their relationship, and following separation.[20]
[20] See, eg, Jabour & Jabour [2019] FamCAFC 78.
The approach to determining the appropriate percentage of the net value of property in relation to the contributions of the parties, at step two of the four-step process, requires an assessment of contributions by, or on behalf of, each of the parties in a holistic manner, rather than attaching specific contributions to a specific item of property and making a determination upon that basis. To do the latter would be to disregard the whole of the contributions made during the whole of the relevant period of the relationship by or on behalf of each of the parties.
As the Full Court said in Dickons & Dickons[21] at paragraphs 14 to 16:
[14] As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[15] The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “...directly or indirectly...” “...to the acquisition, conservation or improvement of any of the property ...” and goes on to also refer to the financial contribution made “...otherwise in relation to any of that last-mentioned property...” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
[16] While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “...acquisition, conservation or improvement of any of the property...” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
... revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings ...[22]
[21] Dickons & Dickons [2012] FamCAFC 154.
[22] Dickons & Dickons [2012] FamCAFC 154, [14]-[16].
The Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.[23] The principle was expressed succinctly by the Full Court in the joint judgment of Bryant CJ and Ainslie-Wallace J in Fields & Smith[24] at paragraph 168:
...the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial, and the analysis requires the Court to weight all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of Hearing, including the post-separation period.[25]
[23] In the Marriage of Harris (1991) 104 FLR 458, 464.
[24] Fields & Smith [2015] FamCAFC 57.
[25] Fields & Smith [2015] FamCAFC 57, [168].
The Full Court has been repeatedly clear that the approach to property settlement under section 60SM of the Act is not an accounting exercise. Here, I note the comments of the Full Court in Grier & Malphas[26] at paragraph 129, where Murphy and Kent JJ said:
As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. Nowhere error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and section 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.[27]
[26] Grier & Malphas (2017) 55 Fam LR 107.
[27] Grier & Malphas (2017) 55 Fam LR 107, [129].
Asserted debt
In relation to contested liabilities, or a liability that is asserted by one party and denied by the other, it is a matter for the Court to establish on the evidence whether the liability asserted is found on the balance of probabilities to be a true liability and, if so, to then decide as a matter of discretion and as part of any adjustive property orders overall, how such liability will be dealt with, even as to whether the debt will form part of the calculation of the overall matrimonial asset pool for adjustment between parties or a matter to take into consideration in any adjustment between the parties pursuant to the matters referred to in section 90SM(4)(e) and, in particular, the considerations found in section 90SF(3) as:
Any fact or circumstance which, in the opinion of the Court, the Justice of the case requires to be taken into account.
In the Full Court authority In the Marriage of Biltoft C.J. & Biltoft V. (1995) FLC 92-614 it was stated that:
(1)As a general practice developed over the years in section 90SM matters, the Court ascertains the value of the property of the parties to the de facto relationship by deducting from the value of their assets the value of their total liabilities. In the case of incumbent assets the value is ascertained by deducting the amount of the secured liability from the gross value of the asset. Where assets are not encumbered and monies are owed by the parties or one of them to unsecured creditors the Court ascertains the value of their property by deducting from the value of their assets the value of their liabilities, including unsecured liabilities.
(2)The Court may properly determine not to take into account, or to discount the value of, an unsecured liability in certain circumstances. Examples are liabilities that are vague or uncertain, unlikely to be enforced or where the liability was unreasonably incurred.
(3)The general rule that the Court treats liabilities in the way outlined in (1) and (2) is not absolute and is not prescribed by statute and there are a number of well recognised exceptions. There is no requirement that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making orders under section 90SM, nor is there a rule of priority as between a creditor claimant and a spouse. The rights of third-party creditors, however, cannot be ignored, they must be recognised and taken into account and balanced against the rights of the spouse.
(4)If in the course of proceeding the rights of a third-party creditor or claimant are likely to be affected, then interests of justice dictate that notice of the proceedings must be given to that creditor or claimant to afford the opportunity to intervene.
In dealing with debts, and particularly in the case of interfamily debts, the provisions of the Limitation Act 1969 (NSW) - picked up by section 79 of the Judiciary Act 1903 (Cth)- must be kept in mind, particularly section 14, in relation to contracts and section 16 in relation to causes of action in liability founded on a deed under seal. Of particular relevance here are loans by parent or parents of a party's spouse that are or may be in the nature of a debt repayable upon demand and in this regard I note the very helpful judgments in Masoud & Masoud [2013] FamCA 763 at paragraphs 190 to 195, approved by the Full Court in Masoud & Masoud [2016] 54 Fam LR 245 at paragraph 64 and Vadisanis & Vadisanis & Anor [2014] FamCAFC 97 at paragraphs 71 to 89.
Kennon claims
The Wife relied upon the well-known principle in Kennon v Kennon (1997) FLC 92-757 (“Kennon”) in asserting that the family violence perpetrated by the Husband against her met the necessary criteria for a Kennon claim, namely that there was “a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage … or … to have made his or her contributions significantly more arduous than they ought to have been”.[28]
[28] Kennon v Kennon (1997) FLC 92-757, [84]-[294] (Fogarty and Lindenmeyer JJ).
In Minterly & Minterly [2013] FamCA 418 Watts J conveniently summarises the applicable principles relating to what has become known as Kennon claims, at [68]–[73]:
[68] The Full Court in Kennon & Kennon (1997) FLC 92-757 said the following:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, to put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
[69]In S & S [2003] FamCA 905 the Full Court referred to the above passage in Kennon and emphasised the words “which is demonstrated“ saying:
The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
[70]The Full Court in Kennon went on to say that considerations of this nature only apply in a relatively narrow band of cases and that it was not directed at conduct which does not have that effect and, of necessity, it usually did not encompass conduct proximate to the breakdown of the marriage basically because there would be insufficient time for any impact to be relevant to contributions.
[71]In S & S, the Full Court approved a statement by the trial judge, when the trial judge had commented on the difficulty in that case which arose from the wife’s material, because although it gave evidence about specific acts of violence, it did not expressly refer to the impact of the violence on her contributions. The trial judge went on to say: It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions.
[72]The Full Court in S & S also commented upon the reference to “exceptional cases“ and “the relatively narrow band of cases“. The Full Court in S & S adopted the trial judge’s comments that: … the references to “exceptional cases“ and “narrow band of cases“ occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are “significant adverse impact” and “discernible impact“. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
[73] The Full Court in S & S at [47] said:
An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
•The incidence of domestic violence;
•The effect of domestic violence; and
•Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to “contribute“ as defined by section 79(4).
I note that the matter of S & S referred to by His Honour is also known as Spagnardi & Spagnardi.[29]
[29] Same reference, apparently not reported.
In relation to the third dot point in S & S the position in relation to the required evidence must now be interpreted in the light of subsequent Full Court authorities. In Keating v Keating [2019] FamCAFC 46, Ainsley-Wallace and Ryan JJ in their joint judgment said:
39. … We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in [S v S] in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in [S v S] said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon, when in truth, the court in [S v S] was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the court to draw inferences which would establish the evidentiary nexus (see [S v S] at [42])…
Of recent time the Full Court in Benson & Drury [2020] FamCAFC 303 said at [49]:
[49]Even though S v S might, in the past, have been interpreted as implying the need for something more, it should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties (Maine v Maine (2016) 56 Fam LR 500; Britt v Britt (2017) 56 Fam LR 526; (2017) FLC 93-764; [2017] at [74]–[75]; Keating at [27]–[43], [52]–[67]).
And further at [50] in relation to the nexus being inferred:
[50]Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent’s contributions, making them “all the more arduous” (at [162]). An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at 390; 124 ALR 353 at 355; 18 Fam LR 180 at 182). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [80]–[101] per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–7 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
The Court’s consideration of a party’s argument that the principles referred to in Kennon apply and have an effect on the assessment of the parties’ contributions must be considered together with the Court’s consideration of all of the contribution evidence in a holistic manner, as explained by the Full Court in Benson & Drury (supra) at [35] to [37]:
[35]The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under s 79(4)(a)–(c) or s 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (Jabour v Jabour (2019) 59 Fam LR 475; (2019) FLC 93-898; [2019] FamCAFC 78 at [73]–[87] (Jabour); Horrigan and Horrigan [2020] FamCAFC 25 at [42]–[48]).
[36]That principle has its counterpart in the application of factors prescribed by s 75(2) or s 90SF(3) of the Act (In the Marriage of J D and S J Tomasetti (2000) 26 Fam LR 114; (2000) FLC 93-023; [2000] FamCA 314 at [107]–[114]). Any adjustment to the parties’ contribution-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustments in respect of each relevant factor.
[37]Although the use of the short-hand descriptor of a “Kennon claim” is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process (Paysen v Laukien (2020) 60 Fam LR 464; (2020) FLC 93-960; [2020] FamCAFC 101 at [48]–[50]). Nor is it helpful to refer to the issue as a “Kennon adjustment” because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.
THE RELATIONSHIP POOL
As stated by the High Court in Stanford, before considering whether or not it is just and equitable in all the circumstances to make an order altering the interests of the parties in the their property, it is necessary to “[identify], according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.” That is, to identify the relationship pool, including resolving any disputed matters relating to the composition of the pool and relevant values.
In evidence as Exhibit CT1 is a Joint Balance Sheet prepared by the parties. The description ‘balance sheet’ is inappropriate in a strict sense as there is no balancing, but rather it is a schedule of the parties’ assets, superannuation entitlements and liabilities. ‘Balance sheet’ is the term of art in common use for that purpose.

The Joint Balance Sheet is as follows:

Item

Ownership

Description

Wife’s value

Husband’s value

Assets

1

Husband

Street A1, Suburb B,

$815,000

$815,000

2

Wife

Street A2, Suburb B

$915,000

$915,000

3

Husband

Motor Vehicle 1

$1,800

$1,800

4

Husband

Tools and equipment

$1,000

$1,000

5

Husband

Household contents

Nil

Nil

6

Wife

Furniture and contents

$1,000

$1,000

7

Wife

Bank account ending #...21

$117,707

$117,707

8

Husband

Bank account

NK

NK

9

Husband

Boat and trailer

Nil

Nil

10

Wife

Motor Vehicle 2

$7,500

$7,500

11

Wife

Motor Vehicle 3

$400

$400

12

Wife

Motor Vehicle 4

Nil

Nil

13

Husband

Motor Vehicle 5

$11,500

$11,500

14

Husband

Motor Vehicle 6

$37,480

$37,480

15

Husband

ATO Credit

$54,600

$54,600

16

Wife

Sporting equipment

$1,000

$1,000

Subtotal

$1,963,987

$1,963,987

Superannuation

17

Husband

Super Fund AD

$1,323

$1,323

18

Wife

Super Fund AE

$22

$22

19

Wife

Super Fund AF

$8,395

$8,395

20

Wife

Super Fund AG

$1,278

$1,278

21

Wife

Super Fund AH

$7,827

$7,827

Subtotal

$18,845

$18,845

Liabilities

22

Wife

Westpac mortgage

$220,000

$220,000

23

Husband

Bank J mortgage

$358,996

$358,996

24

Husband

Bank J Visa account

-

$6,048

25

Wife

Loan from Ms L

$109,000

-

26

Wife

Westpac credit card (as at 6/04/21)

$7,135

-

27

Wife

HECS debt

$15,411

-

28

Wife

Go Mastercard

-

-

29

Wife

Centrelink debt

-

-

30

Wife

Dentist debt

$13,000

$13,000

Subtotal

$723,542

$598,044

The parties are in agreement as to the relevant assets and their values. The Husband’s household contents (item 5), the Husband’s bank account (item 8), the Husband’s boat and trailer (item 9) and the Wife’s Motor Vehicle 4 (item 12) will be dropped from consideration of the relationship pool as the parties agree each is given no value. The Wife asserted that the Husband was the owner of a boat and trailer, the Husband was cross examined on the issue and the Joint Balance Sheet reflects the parties own resolution of that issue.
Parties are in agreement as to the values of the various superannuation entitlements.
The parties are in agreement in relation to the amount outstanding on each of the loan accounts secured on the real properties in their respective names and in relation to the amount owed by the Wife on a “Dentist Debt” (item 30). During verbal examination in chief, the Wife acknowledged that the credit card debt to ‘Go MasterCard’ referred to in her Financial Statement of September 2020 had been extinguished and accordingly item 28 on the Joint Balance sheet is left blank as to values and can be deleted. The Wife was also examined in chief about a debt that had been owed by her to Centrelink referred to on previous versions of the Joint Balance Sheet (not admitted into evidence and remaining Marked For Identification 2) in the sum of $21,385 and she gave evidence that the whole of that liability had been waived and was no longer a debt, and accordingly that item too can be deleted.
The parties are not in agreement in relation to items 24 to 27 on the Joint Balance Sheet. Those issues must be resolved.
The Husband asserts a debt owed by him on an Bank J Visa account in a sum of $6,048. On the evidence, I find that such debt accrued between the time the Husband completed his Financial Statement on 31 August 2020 and the end of the hearing on 7 April 2021 as the Husband stated in item 51 of that Financial Statement that there was a nil balance owing on his “Bank J No interest Visa Card (Paid monthly)”. I find that such liability relates to expenditure by the Husband of an unspecified nature long after the parties separation and certainly not by way of any contribution to the financial support of the Wife or the children. I do not intend to include the Husband’s Bank J Visa account debt in the relationship pool considerations.
The Wife asserts a debt owed by her on her “Westpac Credit Card (as at 06-04-2021)” in the sum of $7,135. In her Financial Statement of 10 September 2020 at item 51 the Wife states a liability on her Westpac Visa credit card in a sum of $6,850. During her examination in chief the Wife gave evidence that the balance owing as at 6 April 2021 was $7,135.54. The Wife gave specific evidence about the expenditure incurred by her on the Go MasterCard credit card at paragraph 141 of her trial affidavit, but did not give evidence in relation to the time or purpose of expenditure on her Westpac credit card. Given that the parties separated in September 2012, eight years before the wife’s Financial Statement and 8 and a half years before her verbal evidence in the hearing, I find that the expenditure on her Westpac credit card was for the financial support, however applied, of herself and the children and will be a component of a consideration in that regard when assessing the parties relevant contributions and so I do not intend to include the Wife’s Westpac credit card debt in the relationship pool considerations.
The Wife asserts that she has a Higher Education Contribution Scheme (HECS) debt to the Commonwealth Government consequent upon her engaging in tertiary education, though there is no evidence as to what debt was accrued in relation to which courses. As part of Exhibit R1, at page 10, is a document entitled “Higher Education Loan Program (HELP) 553 – Ms Quimby” which indicates a debt owed by the Wife under that program as at 1 July 2014 of $10,315, rising to a total debt as at 1 June 2020 of $15,411.01. It is in the nature of the HECS debt scheme that the debt is repayable from income once the debtor earns above a certain amount. The debt is accrued in consequence of the Wife undertaking higher education, the benefit of which remains with the Wife. I find that the appropriate treatment of the Wife’s HECS debt is to leave it as purely the Wife’s liability and to not include the debt in the consideration of the composition of the relationship pool. I take the same approach in relation to the wife’s Dentist Debt, about which there is no other evidence outside its mention on the Joint Balance Sheet.
The Wife asserts a debt to her mother, Ms L, in the sum of $109,000. I have reviewed the evidence in relation to this asserted debt earlier in these Reasons. I find that the debt of $50,000 together with interest calculated at the rate of 5% per annum calculated daily from 11 October 2002 until the date of repayment evidenced in the Acknowledgement of Debt document, a copy of which is annexure “A” to the Wife trial affidavit and also to her mother’s affidavit, is a debt owed by the Wife to her mother and that the funds so lent (actually in a sum of $54,200 as the principal, but confining same to the sum recited in the Acknowledgement of Debt document) were expended by the parties on the construction of the residence on Street A2, Suburb B. The benefit derived by the parties from the monies borrowed by the Wife from her mother are found in the value of Street A2, Suburb B.
I also find that the Wife’s mother provided to the Wife the sum of $27,000 in 2013 for the purchase of a Motor Vehicle 2 and repayment of an outstanding credit card balance on the Wife’s credit card was a loan to the Wife, as described by Ms L in paragraph 8 of her affidavit, in relation to which she was not cross examined, and I also find that the further sum of $5,800 lent to the Wife by her mother in 2015 to purchase the replacement motor vehicle was also a loan. The repayment of the Wife’s credit card balance in 2013 is in sufficient proximity to the parties’ separation for me to consider the repayment of those funds as a matter relevant to the relationship pool considerations. The value to the parties in relation to the monies lent for the purchase of the two motor vehicles is found in those vehicles as items on the Joint Balance Sheet and to be included in consideration of the relationship pool. I accept the Wife’s evidence in cross examination that the monies so provided were a loan repayable by the Wife to her mother.
I find on the basis of all of the relevant evidence that the balance of the monies provided to the Wife either directly or by payment of expenses by her mother, including repayments on the loan accounts secured by mortgage on Street A2, Suburb B and purchase of food and other household supplies, were not lent to the Wife by her mother, but were provided as financial assistance, as described by Ms L in paragraphs 9 and 10 of her affidavit, despite her use of the term “advanced funds” in paragraph 11 thereof.
Accordingly, I find that there is a debt owed by the Wife to her mother is the sum of $82,800.
I find that the relationship pool is composed of the following assets and superannuation entitlements and takes into account the following liabilities:

Item

Owner

Description

Value

Assets

1

Husband

Street A1, Suburb B

$815,000

2

Wife

Street A2, Suburb B

$915,000

3

Husband

Motor Vehicle 1

$1,800

4

Husband

Tools and equipment

$1,000

5

Wife

Household contents and furniture

$1,000

6

Wife

Bank account ##?

$117,707

7

Wife

Motor Vehicle 2

$7,500

8

Wife

Motor Vehicle 3

$400

9

Husband

Motor Vehicle 5

$11,500

10

Husband

Motor Vehicle 6

$37,480

11

Husband

Credit with Australian Taxation Office

$54,600

12

Wife

Sporting equipment

$1,000

Subtotal

$1,963,987

Superannuation

13

Husband

Super Fund AD

$1,323

14

Wife

Super Fund AE

$22

15

Wife

Super Fund AF

$8,395

16

Wife

Super Fund AG

$1,278

17

Wife

Super Fund AH

$7,827

Subtotal

$18,845

Liabilities

18

Wife

Westpac Bank loan account secured by mortgage on Street A2, Suburb B

$220,000

19

Husband

Bank J loan accounts secured by mortgage on Street A1, Suburb B

$358,996

20

Wife

Debt owed to Ms L

$82,800

Subtotal

$661,796

The net relationship asset pool inclusive of assets and superannuation entitlements and after deduction of liabilities is $1,321,036.
SECTION 90SM(3) - IS IT JUST AND EQUITABLE TO PROCEED WITH A CONSIDERATION OF PROPERTY SETTLEMENT ORDERS ?
The parties, as I have said ad nauseam, separated in September 2012 and have lived separately and apart since that time. The assets and liabilities that compose the relationship pool were acquired and incurred after the parties’ commencement of cohabitation, whether that was in 1988 as the Husband asserts or late 1991 or early 1992, as the Wife asserts. Those assets and liabilities are in the individual names of the parties and there is therefore no necessity to proceed to orders on the basis that justice and equity requires a severance of joint ownership or an adjustment of joint liabilities.
Nevertheless, even on a consideration of the principal assets – the real properties at Street A1 and Street A2, Suburb B, Street A1 in the Husband’s name and Street A2, Suburb B in the Wife’s name – and the loan account liabilities secured by mortgages on those properties, it is patently just and equitable to proceed with consideration of property settlement orders altering the interests of the parties in the components of the relationship pool. To leave ownership interests and liabilities as they are would work an injustice to one party where a cursory consideration of the matters referred to in section 90SM(4) of the Act would find an alteration from the current ownerships and liabilities in favour of that party. As will be made plain in the consideration of the matters relevant under that subsection, an order altering the interests of the parties in the property is necessary to do justice between the parties.
I find that it is just and equitable in all the circumstances to make an order altering the interests of the parties in the property.
ASSESSMENT OF THE PARTIES CONTRIBUTIONS – SECTION 90SM(4)(a) to (c)
At the commencement of the parties cohabitation, whether in 1988 or late 1991 or early 1992, neither party had any assets of value or any liabilities.
The Husband engaged in either paid employment or engagement under contract throughout the parties’ cohabitation and contributed his earnings to the acquisition, conservation and improvement of the parties’ property, individual or joint, and towards the welfare of the family unit through payment of living expenses.
The Wife was engaged in employment at the commencement of the parties’ cohabitation and continued in employment until 2004 when she left in preparation for the birth of X. She then re-engaged in some paid employment between the births of X and Y and then engaged in the entertainment partnership business for about two years from 2006 or 2007 until late 2008. Thereafter the Wife engaged in part-time employment as an admin officer during peak periods, as an artist and as a hospitality worker at Employer W until the parties’ separation in September 2012. The Wife contributed her earnings to the acquisition, conservation and improvement of the parties’ property, individual or joint, and towards the welfare of the family unit through payment of living expenses.
I find that throughout the parties’ cohabitation the Wife was primarily responsible for the day-to-day care of the children. I also find that throughout the parties’ cohabitation the Wife was primarily responsible for undertaking the homemaker role for the family unit. I find that the Wife had some, though minor, assistance from the Husband in relation to both the care of the children and the homemaker duties.
The monies contributed by the parties from their own funds to the purchase of the real properties at Street A1 and Street A2, Suburb B, were accumulated by one or other of the parties as savings from their earned income during cohabitation except for the sum of $7,500 borrowed by the Wife from her mother for the payment of the deposit on the purchase of Street A2, Suburb B and then repaid in 2003. Each of the parties received a First Home Owners Grant in relation to purchase of their respective real properties
Both parties were involved in construction of the home on Street A2, Suburb B, the Wife in relation to obtaining a qualification as Owner/Builder and in relation to the preparation and planning of construction and the Husband in relation to actual building work with others including engaged tradesmen, family friends and members of the families. As I have found earlier in these Reasons, it is plain on all of the evidence that in reality the parties each made contributions, each in their own way, to achieving the building of a house at Street A2, Suburb B.
The parties had the assistance of a sum of $54,200 provided by the Wife’s mother to assist with the costs of construction, the provision of those monies giving rise to the debt of $50,000 plus interest evidenced in the Acknowledgement of Debt document. As I have found that the sum of $50,000 is a loan repayable by the Wife to her mother and that such loan has an interest component at 5% per annum I do not take the provision of those monies by the Wife’s mother to the parties as a contribution by or on behalf of the Wife.
There was controversy between the parties in their evidence as to how the extra borrowings made by the Husband in 2005 in a sum of $195,000 were expended. On the state of the evidence I am not able to make a finding in resolution of that controversy and same will have no effect on my consideration of contributions or an assessment of matters relevant under section 90SM(4)(e) that refers to section 90SF(3).
There was also controversy between the parties as to whether or not the Wife should have obtained tenants for Street A1 once she and the children moved out of that property and into Street A2, Suburb B. Mr Jackson submitted on behalf of the Husband that the Wife’s failure to obtain a tenant for the property was a wastage of the type referred to in the well-known case of In the marriage of Kowaliw (1981) FLC 91-092, which, as Mr Jackson pointed out, itself dealt with a property left untenanted for a year. He submitted that the Wife had full control of both Street A1 and Street A2, Suburb B from September 2012 until the hearing and took responsibility for the maintenance of both during that time. He submitted that the evidence of the Wife in relation to the unsuitability of the properties for tenancy during that time should not be accepted and that such asserted wastage by the Wife in failing to tenant the property should be taken into account in the Court’s assessment of contributions. On the basis of my assessment of all of the evidence and in particular the evidence in the Husband’s case from his expert valuation witness, Mr K, I do not accept that submission.
The Husband was at all relevant times the sole registered proprietor of Street A1. The Wife with the children ceased their occupation of Street A1 in about April or May 2014. The Husband at no time asserted his right as registered proprietor to seek to put a tenant into Street A1. He had no time since the commencement of proceedings made an application for relevant orders to assist him to put a tenant into Street A1. More than that, I accept the evidence of the Wife, which, contrary to the submissions for the Husband, finds some corroboration rather than the contrary in the evidence of Mr K, that neither Streets A1 nor A2, Suburb B were in a suitable condition for tenancy from September 2012 until the hearing without the expenditure of an unknown sum of money on what Mr K termed “Essential Repairs”. On the basis of the evidence, these repairs would only have come from the limited pocket of the Wife.
The Wife received a rental income of $495 per week from tenants in Street A2, Suburb B from 2009 until about April 2014. Certainly from the time of the parties’ separation in September 2012 the Wife was solely responsible as between the parties for payment of all required repayments on the loan account secured on Street A2, Suburb B.
Another controversy between the parties was as to how the Court should treat, if at all, the income tax debts accrued by the Husband through failure to lodge his personal Income Tax Returns for a number of years and his failure to remit GST payments. Mr Dura submitted for the Wife that the $45,000 increase in the Wife’s Westpac Bank loan account secured on Street A2, Suburb B referred to in paragraph 31 of her trial affidavit was a negative consequence for the parties of the Husband’s incurring his income tax debts and should be considered when assessing contributions. I do not accept that submission as on the Wife’s own evidence that sum was applied by the parties toward a family holiday in the USA in 2012 and the balance on living expenses, rather than being applied to purchase of a business for the Wife and payment of the Husband’s tax debt. Mr Dura also submitted that the evidence in paragraphs 61 and 62 of the Wife’s trial affidavit relating to the increase in the Husband’s Bank J loan account secured on Street A1 from $180,000 to $365,000 was also a negative consequence of the Husband’s incurred income tax debt, but, again, those funds were not applied to repayment of his income tax debt but were applied to a purchase of some furniture and towards repayment of the Wife’s Westpac credit card balance, with the remaining balance of about $175,000 being the sum I have referred to earlier in these Reasons as being incapable of finding as to its ultimate disposition. Accordingly, I do not accept that submission either.
The Husband made weekly payments of $100 in reduction of his tax debt from 2005 until the parties’ separation, and has continued to do so up to the time of trial, but the negative effect of this on the money pool available to the parties during their cohabitation is offset by the whole of the earnings upon which the income tax and GST remittal debt is based being available to the parties in consequence of the tax not having been paid and remitted.

Mr Dura submitted on behalf of the Wife that a consideration in favour of the Wife on contributions was family violence perpetrated by the Husband on the Wife during the cohabitation of the type usually referred to as a Kennon claim, a reference to the decision of the Full Court of the Family Court of Australia in Kennon and Kennon referred to earlier in these Reasons in the discussion of the relevant law. Mr Dura submitted that the Wife’s evidence linked the family violence perpetrated by the Husband to detrimental effect upon her ability to obtain and maintain employment, referring to paragraphs 22, 24, 28, 80, 84, 86 and 88 of the Wife’s trial affidavit.
Mr Jackson submitted for the Husband that for the Wife to establish a Kennon claim for consideration in assessment of contributions she needed to establish that there was relevant family violence and that the family violence was such that it made her ability to contribute more arduous than it would otherwise have been. He submitted that the Wife had failed in relation to the first step and so could not possibly succeed on the second. He further submitted that even if the court was to find that there was relevant family violence, there was no evidence presented by the Wife that such family violence had made the Wife’s contributions more arduous than they would otherwise have been, even under what was referred to in submissions as the lesser evidentiary burden asserted to be found in the decision of the Full Court in Britt and Britt. I find that the evidence of the Wife in relation to family violence and the effect of such on her contributions, even if taken at its highest, does not place the matter in that class of exceptional cases where the Court’s consideration of the effect of a Kennon claim on contributions is appropriate.
Post separation, the Wife made all the repayments required on the loan account secured on Street A2, Suburb B and the Husband made all of the repayments on the loan account secured on Street A1. For six months post-separation the Wife paid the council and water rates in relation to both properties, and thereafter she paid those rates in relation to Street A2, Suburb B and the Husband made those payments in relation to Street A1.
I accept the Wife’s evidence in paragraphs 109 to 114 her trial affidavit in relation to the maintenance carried out by her or at her expense in relation to both Street A1 and Street A2, Suburb B post-separation.
Post-separation the Wife has been the sole financial support for the children and has been at all times the primary carer and for most of the time their sole carer as between herself and the Husband. That is over a period of eight and a half years from separation to final hearing.
It was submitted on behalf of the Husband by Mr Jackson that the overall contribution based entitlement of the parties is equal, whilst Mr Dura submitted on behalf the Wife that overall the contribution based entitlement favours the Wife as to 65%, with the Husband at 35%.
In considering the contributions made by our on behalf of the parties from the commencement of their cohabitation through to the conclusion of the final hearing, considered on an holistic basis, I find that contribution based entitlements favour the Wife has to 62.5% with the Husband at 37.5%.
SECTION 90SM(5)(e) – ANY ADJUSTMENT BETWEEN THE PARTIES ON CONSIDERATION OF THE MATTERS IN SECTION 90SF(3)
At hearing the parties were of comparable age, the Husband was 51 years of age and the Wife was 48 years of age. Each of the parties enjoys good health. The Wife asserts in paragraph 143 of her trial affidavit that, “although my general health is good, I suffer from anxiety”. I do not consider that her evidence in that regard justifies any adjustment in her favour.
I find that the income, property and financial resources of each of the parties and the commitments of each of the parties that are necessary to enable the party to support him or herself and, on the Wife’s part, support the children, are as detailed earlier in these Reasons. I find that each of the parties has the physical and mental capacity for appropriate gainful employment and that each was engaged at the time of hearing in appropriate gainful employment, the Wife as an administration officer and the Husband as a tradesman on contract.
With my earlier findings on the evidence I find that the Husband has a yearly income of about $90,000 and the Wife has a yearly income of about $65,675. There is, therefore, a disparity in their current income in that the Wife has an income a little more than two thirds of that of the Husband, and I find on the basis of the evidence that there is a similar disparity in the parties earning capacities (considered under section 90SF(3)(r)). These matters are in favour of an adjustment to the Wife.
At the time of hearing the Wife continued to have sole care and control as between herself and Husband of both of the children, X being 16 years of age and Y 15 years of age. The children are not spending any significant time with their Father. There is no reason to find other than that the Wife will continue to be solely responsible as between herself and Husband for the financial support of both of the children until they reach 18 years of age, and continuing thereafter until they are self-sufficient financially. This matter is also in favour of an adjustment to the Wife.
Other than the responsibility of each of the parties for the financial support of the children under section 66C of the Act neither of the parties is responsible for the support of any other person. The Wife has not re-partnered and, despite the evidence of subsequent overseas trips together, I accept the evidence of the Husband that his cohabitive relationship with Ms Z ended in 2013.
Neither party is in receipt of a pension, allowance or benefit under any law of the Commonwealth, or of a State or Territory or of another country or pursuant to any of their superannuation funds or schemes, and there is no evidence of the eligibility of either party to receive such.
During the period of their cohabitation each of the parties contributed to the income, earning capacity, property and financial resources of the other party and since their separation the Wife has certainly contributed to the earning capacity of the Husband in that she has been almost solely responsible for the day-to-day care of the children. Despite the income earning history of the Husband during the cohabitation being that of a full-time employee or contracted income earner and that of the Wife being variously engaged solely in home duties and parenting, part-time employment and full-time employment, I do not consider that the duration of the de facto relationship between the parties has affected the earning capacity of the Wife in such manner as to justify an adjustment in her favour, by reason of her having been able to engage in various education courses during that time, including her building qualifications, which affected her earning capacity in a positive, not negative manner.
On the evidence the Wife can have no real expectation of receiving financial assistance from the Husband by way of child support assessed under the relevant legislation or child support provided on a voluntary basis to assist with the financial support of children after the final hearing and I find that this is a matter in favour of an adjustment to the Wife.
I have already found that on all of the evidence I do not consider that there is any basis for an adjustment between the parties on a wastage argument advanced by the Husband in relation to his assertions of the Wife’s failure to obtain tenants for either of the real properties. Similarly, I have already found that there is no basis for an adjustment between the parties in consequence of the wife’s submission that the husband has caused a wastage of relationship assets by his incurring debt to the Australian Taxation Office.
I find that an appropriate adjustment in favour of the Wife in relation to the matters relevant in section 90SF(3) is 7.5%.
WHAT ORDERS ALTERING THE INTERESTS OF THE PARTIES IN THE PROPERTY ARE JUST AND EQUITABLE?
I have found that an appropriate alteration of the interests of the parties in the property I have identified as the relevant relationship pool is to divide the net pool 70% to the Wife and 30% to the Husband.
The parties’ superannuation entitlements are modest, the Wife having $17,522 entitlements and the Husband $1,323 entitlements. Two of the Wife’s superannuation funds can be made the subject of superannuation splitting orders – Super Fund AF and Super Fund AH – but only just. I find that this is not an appropriate matter for a superannuation splitting order and no such order is sought by either of the parties. I find that it is the appropriate approach in this matter to deal with the relationship pool on a “one pool” basis incorporating the assets and superannuation entitlements and the relevant liabilities.
On the basis of my findings as to the composition of the relationship pool, a division between the parties in accordance with the orders sought by the Husband would result in the Husband receiving 65.5% of the net property pool and the wife receiving 34.5%. The Husband seeks to retain Street A1 as his sole property and liability for the loan account secured by mortgage on the property, and for the Wife to retain Street A2, Suburb B as her sole property and liability for the loan account secured by mortgage on that property, and to have the Wife pay to him $300,000.
The Wife seeks to retain sole ownership of Street A2, Suburb B, to have the Husband transfer to her his interest in Street A1, and to pay to the husband “a sum to give effect to a division of the net asset pool of the parties as to 70% to the Respondent Wife and 30% the Applicant Husband” after taking into account all other orders. However, at no place in her Response to Amended Amended Initiating Application filed 27 August 2020, or in her Minute of Order set out in Part D of her Counsel’s Case Outline filed 29 September 2020 (which repeats the orders from the Response), or in Mr Dura’s submissions, does the Wife propose an order that in taking a transfer from the Husband of the whole of his interest in Street A1 she would refinance the loan account in the husband’s name with Bank J secured by mortgage on that property so as to relieve him from that liability. On that basis, the Wife’s proposed orders would require a payment by the Wife of the Husband of a sum sufficient to enable him to discharge the loan account with Bank J simultaneously with the transfer of his interest in Street A1 to the Wife so as to release the bank’s security in the property and to then have $288,608 left of that payment from the Wife, which, when added to the other assets he would retain under the Wife’s orders, would give him 30% of the net relationship pool. That would be an unnecessarily tortuous way of going about achieving the ends the Wife seeks in her orders.
Which party’s basic proposal for orders comes closest to doing justice and equity between the parties? If orders are made as sought by the Husband the parties would be on adjoining real properties and, despite the submission by Mr Jackson during his submissions in reply that there was no evidence that the Husband intended to live in Street A1, the making of a final order allocating the property to him but then restraining his range of use of that property would not, in my view, be just and equitable, nor do I consider that it would be just and equitable to make an order that can find these parties living side by side.
A more important consideration in relation to which party should have which of the properties relates to the practical difficulties inherent in the “connections” between the properties – the encroachments by the roof of the home on Street A1 over the boundary onto Street A2, Suburb B, the shed “containing asbestos” constructed across the boundary between the two properties and the connection of the septic carry pipes for Street A1 to the septic system on Street A2, Suburb B. Each of those encroachments can be remedied, and the Husband’s orders contain proposal for same to be remedied by a licensed builder at the Husband’s cost, but that cost is not known.
In view of both considerations I find it is just and equitable that orders be made basically in line with those proposed by the Wife, enabling her to retain Street A2, Suburb B, to receive transfer from the Husband of his interest in Street A1 upon payment to him of such sum as will achieve an overall division of the net relationship pool between the parties 70% the Wife and 30% of the Husband with the Wife to also discharge the loan account in the Husband’s name with Bank J secured by mortgage on Street A1 so as to relieve him of that liability and remove that property as security for that loan. Further, I find it is just and equitable for orders to be made for each party otherwise to retain the assets currently in their possession and control, the Wife retaining liability for the loan account in her name with Westpac Banking Corporation secured by mortgage on Street A2, Suburb B and liability for the debt of $82,800 I have found to be owed by her to her mother.
I have found the value of the net relationship pool to be $1,321,036. I have found the value of the assets to be retained by the Husband (the Motor Vehicle 1, tools & equipment, Motor Vehicle 5, Motor Vehicle 6 and ATO credit) to be $107,703. Pursuant to the orders I will make, the Husband will have no continuing liabilities from the relationship pool. 30% of the net relationship pool is $396,311. The Husband has $107,703 and so the amount to be paid to him by the Wife under the order is $288,608.
A final consideration is as to whether or not the Wife has a capacity to finance the payment to the Husband under the order, her loan account current with Westpac Banking Corporation, the repayment of the Husband’s current loan account with Bank J and repayment of the debt of $82,800 to her mother, a total of $950,404. I find it is appropriate in the circumstances to remove the debt owed by the Wife to her mother from this consideration as a matter of exercise of discretion, and I exercise that discretion bearing in mind that under the terms of the Acknowledgement of Debt between them dated 11 October 2002 the sum of $50,000 together with interest accrued thereon will become payable upon any refinancing by the Wife of her Westpac Banking Corporation loan account.
Accordingly, the consideration is as to whether or not the Wife is in a position to finance a sum of $867,710. In paragraph 144 of her trial affidavit the Wife gives evidence that she has made enquiries and believes that she “will be able to obtain a loan of up to $900,000 with either Bank AJ or Company AK”. Exhibit A4 is a “Loan acceptance” document from Westpac signed by the Wife on 5 March 2021 giving details of the arrangements for a loan, but in no place recites an amount to be lent. At the end of the cross examination of the Wife by Mr Jackson she was cross examined on the subject of loan applications with Westpac Bank, but her evidence in paragraph 144 was not cast into doubt. I accept that evidence and find that she has a capacity to make the borrowing necessary to perform the orders I proposed. Failure by her to achieve sufficient borrowing would necessitate enforcement by alternate orders.
The Wife’s proposed orders do not contain any enforcement provision to apply on default of her payment of the sum required to the Husband or on default of her obtaining at her cost discharge of the mortgage on Street A1, but at the end of his submissions Mr Dura advised the Court that the Wife did not oppose an enforcement order being added to her orders, as had been the subject of submissions by Mr Jackson analysing the Wife’s proposed orders. It is appropriate that such default order be made to avoid the necessity for the parties’ return before the Court in enforcement proceedings, and in the event that such default provision comes into operation on the Wife’s default it will be necessary for the encroachment and other connections between Street A1 and Street A2, Suburb B to be rectified, at the Wife’s costs as without default she would take both properties subject to those connections and any rectification in the future would be at her cost.
Accordingly, I make the orders as set out in these Reasons.

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 12 August 2022

File number(s):	SYC 5033 of 2013
Judgment of:	JUDGE MORLEY
Date of judgment:	12 August 2022
Catchwords:	FAMILY LAW – PROPERTY – adjustment of interests under section 90SM – de facto Wife asserts Kennon claim –de facto Wife asserts debts which are disputed by the de facto Husband– examination of the property pool where there is no joint ownership of property between the de facto Husband and Wife
Legislation:	Evidence Act 1995 (Cth) – section 50 Family Law Act 1975 (Cth) – sections 44, 66C, 90SF, 90SM, 90SN, 117B Limitation Act 1969 (NSW) – sections 14 and 16 Judiciary Act 1903 (Cth) – section 79
Cases cited:	Benson & Drury [2020] FamCAFC 303 Dickons & Dickons [2012] FamCAFC 154 Fields & Smith [2015] FamCAFC 57 Fontana & Fontana [2018] FamCAFC 63 Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395 In the Marriage of Biltoft C.J. & Biltoft V. (1995) FLC 92-614 In the marriage of Kowaliw (1981) FLC 91-092 Keating v Keating [2019] FamCAFC 46 Kennon v Kennon (1997) FLC 92-757 Masoud & Masoud [2013] FamCA 763 Masoud & Masoud [2016] 54 Fam LR 245 Minterly & Minterly [2013] FamCA 418 Mullis & Quimby [2019] FCCA 1516 S & S [2003] FamCA 905 Stanford & Stanford (2012) 247 CLR 108 Vadisanis & Vadisanis & Anor [2014] FamCAFC 97
Division:	Division 2 Family Law
Number of paragraphs:	182
Date of hearing:
Place:	Sydney
Counsel for the Applicant:	Mr Jackson
Counsel for the Respondent:	Mr Dura

SYC 5033 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MULLIS Applicant
AND:	MS QUIMBY Respondent

order made by:	JUDGE MORLEY
DATE OF ORDER:	12 August 2022

Item	Ownership	Description	Wife’s value	Husband’s value
Assets
1	Husband	Street A1, Suburb B,	$815,000	$815,000
2	Wife	Street A2, Suburb B	$915,000	$915,000
3	Husband	Motor Vehicle 1	$1,800	$1,800
4	Husband	Tools and equipment	$1,000	$1,000
5	Husband	Household contents	Nil	Nil
6	Wife	Furniture and contents	$1,000	$1,000
7	Wife	Bank account ending #...21	$117,707	$117,707
8	Husband	Bank account	NK	NK
9	Husband	Boat and trailer	Nil	Nil
10	Wife	Motor Vehicle 2	$7,500	$7,500
11	Wife	Motor Vehicle 3	$400	$400
12	Wife	Motor Vehicle 4	Nil	Nil
13	Husband	Motor Vehicle 5	$11,500	$11,500
14	Husband	Motor Vehicle 6	$37,480	$37,480
15	Husband	ATO Credit	$54,600	$54,600
16	Wife	Sporting equipment	$1,000	$1,000
Subtotal			$1,963,987	$1,963,987
Superannuation
17	Husband	Super Fund AD	$1,323	$1,323
18	Wife	Super Fund AE	$22	$22
19	Wife	Super Fund AF	$8,395	$8,395
20	Wife	Super Fund AG	$1,278	$1,278
21	Wife	Super Fund AH	$7,827	$7,827
Subtotal			$18,845	$18,845
Liabilities
22	Wife	Westpac mortgage	$220,000	$220,000
23	Husband	Bank J mortgage	$358,996	$358,996
24	Husband	Bank J Visa account	-	$6,048
25	Wife	Loan from Ms L	$109,000	-
26	Wife	Westpac credit card (as at 6/04/21)	$7,135	-
27	Wife	HECS debt	$15,411	-
28	Wife	Go Mastercard	-	-
29	Wife	Centrelink debt	-	-
30	Wife	Dentist debt	$13,000	$13,000
Subtotal			$723,542	$598,044

Item	Owner	Description	Value
Assets
1	Husband	Street A1, Suburb B	$815,000
2	Wife	Street A2, Suburb B	$915,000
3	Husband	Motor Vehicle 1	$1,800
4	Husband	Tools and equipment	$1,000
5	Wife	Household contents and furniture	$1,000
6	Wife	Bank account ##?	$117,707
7	Wife	Motor Vehicle 2	$7,500
8	Wife	Motor Vehicle 3	$400
9	Husband	Motor Vehicle 5	$11,500
10	Husband	Motor Vehicle 6	$37,480
11	Husband	Credit with Australian Taxation Office	$54,600
12	Wife	Sporting equipment	$1,000
Subtotal			$1,963,987
Superannuation
13	Husband	Super Fund AD	$1,323
14	Wife	Super Fund AE	$22
15	Wife	Super Fund AF	$8,395
16	Wife	Super Fund AG	$1,278
17	Wife	Super Fund AH	$7,827
Subtotal			$18,845
Liabilities
18	Wife	Westpac Bank loan account secured by mortgage on Street A2, Suburb B	$220,000
19	Husband	Bank J loan accounts secured by mortgage on Street A1, Suburb B	$358,996
20	Wife	Debt owed to Ms L	$82,800
Subtotal			$661,796