Newman and Newman

[2013] FamCA 37

FAMILY COURT OF AUSTRALIA

NEWMAN & NEWMAN [2013] FamCA 37

FAMILY LAW – PROPERTY – long marriage – where the husband submitted he had made a “special contribution” – where it was held the husband did not make a special contribution - where the wife received a substantial inheritance after separation – where the parties both wanted a two pooled approach, but on different bases - determination of just and equitable alteration

Family Law Act 1975 (Cth)

Chorn & Hopkins (2004) FLC 93–204
Ferraro & Ferraro (1993) FLC 92-335

Figgins & Figgins (2002) FLC 93-122
JEL and DDF (2001) FLC 93-075
Mallet v Mallet (1984) 156 CLR 605
SL & EHL [2005] FamCA 132

Smith & Fields [2012] FamCA 510

APPLICANT: Ms Newman

RESPONDENT: Mr Newman

FILE NUMBER: SYC 4556 of 2011

DATE DELIVERED: 30 January 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 - 11 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr North, SC

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

Orders

1. Pursuant to s 79 Family Law Act 1975 (Cth) an order be made in accordance with paragraphs 2 to 9 below.

2. The child of the marriage M is entitled to the whole of the amount in account number …62 or any other account held by either party in trust for her; the child of the marriage P is entitled to the whole of the amount in account number …56 or any other account held by either party in trust for her and the child of the marriage H is entitled to the whole of the amount in account number …48 or any other account held by either party in trust for her.

3. The child of the marriage H is to have sole right, title and interest in the motor vehicle … Honda … (registration …) and the husband pay and indemnify the wife and H in respect of any increase of insurance premiums arising from the transfer of ownership of that motor vehicle from the wife’s name to the name of the child of the marriage.

4. The child of the marriage P is to have sole right, title and interest in the motor vehicle … Holden … (registration …) and the husband pay and indemnify the wife and P in respect of any increase of insurance premiums arising from the transfer of ownership of that motor vehicle from the wife’s name to the name of the child of the marriage.

5. Within 42 days the husband do all acts and things necessary and sign documents, instruments and writings required to transfer to the wife the whole of his share in the former matrimonial home known as B Street, Suburb L, being the whole of the property contained in Certificate of Title Folio Identifier …, that transfer being subject to the mortgage registered upon the title of the property which shall be discharged by the wife forthwith upon transfer.

6. Within 42 days, the wife shall do all acts and things necessary, if called upon to do so by the husband, to attend at a meeting of N Pty Limited ACN … (“N Pty Ltd”) and to vote in favour of any resolutions proposed by the husband which have the effect of approving any proposed transfer of shares pursuant to these orders and/or appointing any new officer of the company and converting the company into a sole director corporation and to thereupon:

   6.1.resign from any office that she holds in N Pty Ltd;

   6.2.transfer all her shareholding in N Pty Ltd to the husband or as he may nominate;

   6.3.transfer and assign to the husband all her right, title and interest in any loan account that she has;

   6.4.transfer and assign to the husband any right and entitlement for unpaid dividends either accrued or accruing in respect of the wife’s equity (if any) in N Pty Ltd;

   6.5.assign to the husband the whole of her benefit in any accrued leave entitlement, including holiday pay and annual service leave.

7. Within 42 days the husband obtain releases and otherwise arrange for any liability assumed by the wife to be discharged and otherwise indemnify the wife in relation to any such liability including, without limiting the generality of the foregoing, any guarantee executed by the wife in favour of any facility provided to N Pty Ltd.

8. The husband’s superannuation interests with C Superannuation Fund (“the fund”) shall be split to create a superannuation interest for the wife as follows:

   8.1.Pursuant to s 90MT(2) Family Law Act 1975 (Cth) and Regulation 27 Family Law (Superannuation) Regulations 2001 (Cth), the court determines the amount in relation to the husband’s superannuation in the fund is $1,079,007.

   8.2.Pursuant to s 90MT(4) Family Law Act 1975 (Cth), the court allocates a base amount to the wife in respect of the husband’s superannuation interests in the fund of $491,184.

   8.3.Pursuant to s 90MT(1)(a) Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the husband’s superannuation in the fund the wife is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) where the base amount is $491,184 and there is a corresponding reduction in the entitlement of the husband at the time of the splittable payment.

   8.4.The operative time for the payment under this order is 28 days after the date of the order.

   8.5.The trustee shall do all such acts and things and sign all documents as may be necessary in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), to calculate the entitlement to make payment to the wife in accordance with these orders.

   8.6.The husband shall not give or grant to the trustee of the fund a binding death nomination in favour of a child which would have the effect of in any way reducing the value to the wife of the splittable order herein and in particular the base amount allocated to her and the husband and his legal personal representatives in the event of his death, shall indemnify and keep indemnified the wife in respect of any loss that may be suffered by her as the result of any failure by him to comply with this order.

   8.7.The husband shall forthwith do all acts and things and sign all documents necessary to cause and maintain the wife to be the nominated death beneficiary of his entitlement to a proportion of not less than 45.5 percent of the total value of his entitlement in the fund until such date as there is a split of payments in favour of the wife pursuant to these orders.

   8.8.Having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of the fund. 

9. Upon the implementation of order 8 hereof, the wife do all acts and things necessary within seven days thereafter, to resign as a director of D Pty Limited ACN … and to transfer to the husband or as he may otherwise nominate all her shareholding in the said company.

10. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act1975 (Cth) to execute such documents on behalf of such party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newman & Newman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4556 of 2011

Ms Newman

Applicant

And

Mr Newman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties cohabited for 28 years. There are three adult children of the marriage. This application is about whether, and if so what, order should be made to divide their property. The major feature of the case is a significant late inheritance received by the wife together with other contributions made on her behalf by her family during the marriage. The husband, for his part, asserts that he provided a “special” contribution as an executive in the finance industry.

APPLICATIONS

1. The wife seeks that contributions be dealt with by a two pooled approach. The two pools that the wife urges are the superannuation assets in one pool and all the other assets of the parties in the other pool. The wife is seeking an overall split of 65/35 in her favour of the non superannuation assets. She also seeks a splitting order in relation to the husband’s interest in the parties’ self managed superannuation fund so that the superannuation interests of both parties are equal. She wishes to retain the former matrimonial home.

2. The husband agrees to transfer his title in the former matrimonial home to the wife. The husband’s application is to create two pools but in a different way. The husband requests that the superannuation and all the other assets (excluding the wife’s inheritance which the husband asserts is worth $1.45 million) be put in one pool and that the wife’s inheritance be put into the other pool. The husband seeks that by way of contributions, the first pool be divided 50/50. Somewhat unusually, the husband does not seek any claim by way of contributions to the inheritance but submits that there should be a 30 percent adjustment pursuant to s 79(4)(d) – (g) Family Law Act 1975 (Cth) (“FLA”) in his favour of the inheritance monies.

3. The parties agreed that a declaration be made that the bank accounts which are item 62 on the earlier draft balance sheet (exhibit 3) be declared to be the property of the respective children referred to in item 62. There are some different account numbers listed in the husband’s case outline document and the order will be framed to cover any account held in trust by either party for any of the children. In addition, it was agreed that the motor vehicles, currently driven by P and H, would be declared to be their motor vehicles on the basis that the husband agreed that he would pay the increase in any insurance premium arising from the transfer of ownership from the wife to the respective daughter of the parties.

DOCUMENTS RELIED UPON

1. The applicant wife relies on the following:

   5.1.Initiating Application filed 28 July 2011

   5.2.Wife’s affidavit sworn 22 June 2012

   5.3.Wife’s Financial Statement filed 25 June 2012

   5.4.Affidavit of Mr K sworn 30 August 2012

2. The respondent husband relies on the following:

   6.1.Response filed 2 September 2011

   6.2.Husband’s affidavit sworn 12 June 2012

   6.3.Husband’s Financial Statement filed 13 June 2012

3. The parties also relied on the following expert evidence:

   7.1.Affidavit of Mr Z sworn 27 August 2011

   7.2.Affidavit of Mr A sworn 30 September 2011

   7.3.Affidavit of Mr E sworn 25 June 2012

SHORT HISTORY

1. The husband was born in 1955 and is now aged 57.

2. The wife was born in 1958 and is now aged 54.

3. The parties commenced cohabitation in 1982.

4. The parties married in April 1983.

5. The child M was born in 1987 and is now aged 25.

6. The child P was born in 1989 and is now aged 23.

7. The child H was born in 1992 and is now aged 20.

8. The parties separated on 30 August 2010. They cohabited for about 28 years.

CREDIT

1. Neither counsel in final addresses made any submission in relation to the credit of either the husband or wife. There is no significant issue in this case that turns on findings of credit and I do not need to make any.

DETAILED CHRONOLOGY

1. The husband was born in 1955 and is now aged 57.

2. The wife was born in 1958 and is now aged 54.

3. The parties commenced cohabitation in 1982.

4. The parties married in April 1983.

5. In 1984, the parties purchased a property at Suburb F for $120,000 or $125,000. The wife’s parents gave the parties $20,000 towards the purchase.

6. The child M was born in March 1987 and is now aged 25.

7. The child P was born in May 1989 and is now aged 23.

8. In January 1992, the parties sold the property at Suburb F for $340,000. The parties applied the proceeds of sale to the purchase of a property at Suburb L. They borrowed $287,500 to complete the purchase.

9. The child H was born 12 May 1992 and is now aged 20.

10. In 1995, the parties moved to Perth, where the husband was working.

11. In 1997, the parties returned to Sydney.

12. In 2002, the wife inherited $12,500 from her grandfather’s estate.

13. On 13 November 2002, N Pty Ltd was incorporated. The parties were both directors and equal shareholders. The company is the trustee of the Newman Family Trust.

14. On 13 December 2002, the Newman Family Trust was established. The husband is the sole Appointor.

15. In 2005, the husband began working for Company G.

16. On 15 June 2007, N Pty Ltd purchased a property at Suburb I for $1,550,000. The purchase was funded from accumulated funds and a mortgage for $801,000. 

17. In August 2009, the husband was made redundant.

18. In March 2010, the wife’s father passed away. The wife’s inheritance was subject to a life interest in favour of her mother.

19. In April 2010, the wife returned to work.

20. The parties separated on 30 August 2010. The husband moved into the Suburb I property where he remained until 22 July 2011.

21. In April 2011, the wife attempted to gain access to the Suburb I property while the husband was overseas. In her oral evidence, the wife said that she was intending to fix the air conditioner in the property.

22. In July 2011, the husband moved to a property at Suburb J which he is renting. He resides with his daughters H and P.

23. In February 2012, the wife’s mother, Ms T, passed away. The wife inherited part of her mother’s estate, and she received the property from her father’s estate that had been subject to a life interest in favour of her mother.

24. In April 2012, the parties divorced.

APPROACH

1. In this matter my task is to:

   41.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;

   41.2.Determine whether it is just and equitable to make an order altering those interests and if so;

   41.2.1.Identify relevant contributions and assess them;

   41.2.2.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;

   41.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

1. The parties have separated and their marital partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. As the balance sheet set out below demonstrates, the assets and liabilities remaining with each party are $3,773,219 held jointly; $1,618,430 held by the husband and $1,503,254 held by the wife.

2. The parties agree that there will need to be an adjustment in relation to the two jointly held properties (items 1 and 2 on the balance sheet) and in relation to the C Superannuation Fund.

3. I find that in all the circumstances, it is just and equitable to make an order altering property (including adjusting liabilities).

WHAT ASSETS SHOULD CONSTITUTE EACH POOL?

1. Although both parties advocated for a two pooled approach, they did so on a different basis. The wife sought that the non superannuation assets and the superannuation assets be dealt with in separate pools. The wife’s reasoning for adopting this approach was that she asserted the contribution assessment to the non superannuation assets had to be different from the assessment in relation to the superannuation assets because of the extra contributions she says that she has made through inheritances, in particular, and the labour from her family to the non superannuation assets.

2. The husband on the other hand says that everything should be put together except the wife’s inheritances, which ought not be assessed in terms of contribution, but rather be treated as an asset in the wife’s hands relevant to a s 79(4)(d) – (g) FLA adjustment in the husband’s favour.

3. Not much turns upon which approach is adopted. It seemed conceded by the husband that he cannot be seen to have made any direct or indirect contribution to the wife’s inherited assets. That fact however can be accommodated using the approach suggested by the wife. It seems accepted by both parties that their contributions to the whole of the superannuation assets should be seen as equal whereas their contributions to the non superannuation assets are not equal. Accordingly I adopt the pooled approach suggested by the wife.

BALANCE SHEET

1. The settled balance sheet is set out below. Where values are not agreed they appear in bold as determined by me. The reasons for each determination are set out under item numbers following the table.

Pool 1
Assets
Item no.	Title	Description	Wife	Husband	Agreed/ Determined	Value
1	J	Suburb L property	$2,350,000.00	$2,350,000.00	Agreed	$2,350,000.00
2	J	Suburb I apartment	$1,600,000.00	$1,600,000.00	Agreed	$1,600,000.00
3	W	O Pty Ltd units	$0.00	$0.00	Agreed	$0.00
4	H	Q Trust	$129,000.00	$129,000.00	Agreed	$129,000.00
5	H	CommSec share portfolio (x 1,000)	$0.00	$0.00	Agreed	$0.00
6	J	Holden	$6,900.00	$6,900.00	Agreed	$6,900.00
7	H	2003 Mercedes	$26,500.00	$26,500.00	Agreed	$26,500.00
8	W	2011 Mercedes	$52,250.00	$52,250.00	Agreed	$52,250.00
9	W	Jewellery	$18,050.00	$18,050.00	Agreed	$18,050.00
10	H	Jewellery	$2,280.00	$2,280.00	Agreed	$2,280.00
11	W	Fine arts	$28,500.00	$28,500.00	Agreed	$28,500.00
12	H	Fine arts	$1,945.00	$1,945.00	Agreed	$1,945.00
13	H	Gold Ingot (1 ounce)	$1,603.00	$1,603.00	Agreed	$1,603.00
14	J	Suburb L contents	$92,019.00	$92,019.00	Agreed	$92,019.00
15	H	Suburb J contents (plus items from wife)	$9,505.00	$9,505.00	Agreed	$9,505.00
16	W	Estate of the late Mr T	$600,995.00	$600,995.00	Agreed	$600,995.00
17	W	Bank accounts	$31,535.00	$31,535.00	Agreed	$31,535.00
18	H	Bank accounts (CBA …55/CBA ...18)	$63,323.00	$63,323.00	Agreed	$63,323.00
19	H	Wine (including Grange)	$480.00	$480.00	Agreed	$480.00
20	W	Wine at Suburb L	$500.00	$500.00	Agreed	$500.00
21	H	N Pty Ltd (R Trust funds)	$48,100.00	$48,100.00	Agreed	$48,100.00
22	W	Estate of the late Ms T	$728,072.00	$849,116.00	Determined	$728,072.00
23	W	Estate of the late Ms T	$0.00	$0.00	Agreed	$0.00
24	W	Debt due by M	$0.00	$0.00	Agreed	$0.00
25	H	Swaab trust account	$9,500.00	$9,500.00	Agreed	$9,500.00
26	W	Debt due from Estate Ms T	$4,060.00	$4,060.00	Agreed	$4,060.00
27	H	CBA withdrawal to fund new furniture	$75,847.00	$0.00	Determined	$5,847.00
28	H	Removed from #...55 account on 6/9/10	$5,000.00	$0.00	Determined	$0.00
29	H	Q Trust capital returns	$84,000.00	$0.00	Determined	$45,000.00
30	H	Increase in mortgage debt	$75,700.00	$0.00	Determined	$45,000.00
31	H	Sale of CommSec shares	$53,050.00	$0.00	Determined	$0.00
32	W	Wife's paid legal fees	$78,497.00	$78,497.00	Agreed	$78,497.00
33	H	Husband's paid legal fees	$75,546.00	$75,546.00	Agreed	$75,546.00
34	H	W Sport Venue memberships x 2	$12,500	$195	Determined	$4,654.00
Total assets						$6,059,661.00
Liabilities
Item no.	Title	Description	Wife	Husband	Agreed/ Determined	Value
35	J	NAB Mortgage	$275,700.00	$275,700.00	Agreed	$275,700.00
36	H	CBA credit card	$0.00	$0.00	Agreed	$0.00
37	H	AMEX credit card	$0.00	$0.00	Agreed	$0.00
38	W	Ms T debt	$0.00	$0.00	Agreed	$0.00
39	W	Ms T car debt	$70,000.00	$70,000.00	Agreed	$70,000.00
40	W	Mastercard	$3,786.96	$0.00	Determined	$0.00
41	J	C Super expenses due to ATO, annual returns, audit. Paid by husband	$0.00	$0.00	Agreed	$0.00
42	J	N Pty Ltd expenses to council, water, body corporate (levies). Paid by husband	$0.00	$0.00	Agreed	$0.00
43	H	Anticipated tax (Newman Family Trust)	$0.00	$7,520.00	Determined	$7,520.00
Total liabilities						$353,220.00
Total net assets						$5,706,441.00
Pool 2
Assets
Item no.	Title	Description	Wife	Husband	Agreed/ Determined	Value
44	H	C Superannuation Fund	$1,079,007.00	$1,079,007.00	Agreed	$1,079,007.00
45	W	C Superannuation Fund	$22,615.00	$22,615.00	Agreed	$22,615.00
46	H	Company G	$78,660.00	$78,660.00	Agreed	$78,660.00
47	W	U Superannuation Fund	$8,180.00	$8,180.00	Agreed	$8,180.00
Total assets						$1,188,462.00
Total net assets over all pools						$6,894,903.00

Item 22 – Estate late Ms T

1. The wife received a substantial inheritance from her mother’s estate. She is a one half beneficiary of that estate. The difference between the amount asserted by the husband ($849,116) and the amount asserted by the wife ($728,072) is one half of the amount of a loan said to be owed by O Pty Ltd to the estate ($242,088). The disputed amount turns around the question as to whether or not a liability which is said to be owed to the estate is real or illusory. That liability appears in the evidence of the wife’s brother. Annexed and marked “C” to the affidavit of Mr K sworn 30 August 2012 is a balance sheet for the estate of the late Ms T as at 25 May 2012. That document shows as an asset a loan owed to the estate by O Pty Ltd in the sum of $242,088.88. The question is whether or not that loan owed by O Pty Ltd is an asset that can be collected by the estate and whether the practical effect of the Will is to forgive that debt.

2. It seems to be agreed that the estate owns all the shares in and controls O Pty Limited. O Pty Limited only has one significant asset and that is real estate which as per O Pty Limited’s balance sheet as 3 June 2009 (exhibit 16), was said to be worth $230,276. There is no dispute that that piece of real estate is the subject of a bequest in the last Will & Testament of Ms T. Clauses 4 and 5 of the late Ms T’s Will are in the following terms:

   4.I DIRECT my Trustee:

   (a) to hold my shares in the company [O Pty Ltd] so that it continues to provide a residence for my son [Mr V] during his life. The Trustee may wind-up the company if it so decides and any net distribution shall be applied to provide a residence for my son [Mr V] during his life. Where the Trustee provides such a property then:

   (i)the Trustee shall pay the rates, taxes and other outgoings and keep the property insured and repaired to the satisfaction of the Trustee and in respect of which my son [Mr V] shall pay rent at a market value or such lower amount determined by the Trustee that is necessary to meet the abovementioned outgoings and any expenses incurred by the Trustee (or entity under its control) in providing the residence; or

   (ii)to sell that property and out of the proceeds of sale to purchase another property or interest therein, either leasehold or freehold, to be held upon the same trusts as far as applicable as are herein declared; or

   (iii)to invest the proceeds of sale of the property referred to in Clause 4(a)(i) or 4(b)(ii) and to pay the net annual income to meet any nursing home, residential care or hospital fees of [Mr V] not covered by subsidy allowance, pension or other public funding provided by a Territory, State or Federal Body; and

   (b) to divide the remainder of my estate into two equal shares to be dealt with as follows:

   (i)to hold one such share for my son [Mr K] absolutely; and

   (ii)to hold one such share for my daughter [Ms Newman] absolutely.

   5.I DIRECT that upon the death of [Mr V] that:

   (a) if the company [O Pty Ltd] has been providing a residence for [Mr V], then it be wound or [sic] ; or

   (b) if there is a property referred to in Clause 4(a)(i) or 4(b)(ii) then it be sold;

   and

   the distribution under clause 5(a) or the proceeds under clause 5(b), or the capital and accumulated income referred to in Clause 4(a)(iii) be used to pay or provide for payment of funeral expenses of my son [Mr V] and the remainder shall be gifted to his daughter [Ms V]. If she has not attained the age of thirty five years, then that remainder share shall be held in trust until she attains the age of thirty five years.  [emphasis added]

3. The argument turns around whether or not the words “and the remainder shall be gifted to his daughter [Ms V]” creates an instruction which is to be complied with prior to the company fulfilling its obligation to repay money to the estate and whether the words in the Will contain an implicit instruction that the debt that the company owed the estate has been forgiven.

4. Counsel for the husband argued that if that was the intention of the testator, then there would have been a specific provision in the Will to forgive the debt. I am unable to accept that argument. The testator’s clear intention was for Ms V to receive the remainder of the proceeds of any sale of any property that her father Mr V was living in after the payment of his funeral expenses. There was no indication that that bequest is conditional upon the estate being paid back from those monies the debt that was owed by the company.

5. Once the trustee has made the payment as directed by clause 5 in the Will, the company has no remaining assets and no further money to pay any debt which the company’s balance sheet may show owing to the estate.

6. Further, Mr V has a life interest in the property. Senior counsel for the wife agreed that there is no evidence as to Mr V’s life expectancy, but given that the whole of that property is going to go to his daughter it is irrelevant. That property will not be, and has not been, included by the wife’s brother when he has assessed the value of the estate. The whole of the value of this property will flow to Mr V and Ms V and the wife will receive no benefit from this property by way of a distribution from the estate.

7. Accordingly I find that the value for item 22 is $728,072 as asserted by the wife.

Item 27 – CBA withdrawal to fund new furniture

1. The evidence supports the proposition that the husband spent $75,847 to purchase new furniture when he reaccommodated upon separation having left the matrimonial home. His evidence was he had done that “cheaply”. The husband denied that any of the furniture he purchased was a result of any impulse buying. The wife wants the whole $75,847 added back.

2. The first point to make is that that would be double counting to the extent of the value recorded, by consent, on the balance sheet at item 15.

3. The furniture that was acquired for $70,000 of this $75,847 is now the subject of a valuation by Mr A. He has valued that part of the furniture at $9,505 (which is reflected in item 15 on the balance sheet). It was suggested that I should add back $5,847 ($1,798 + $198 + $1,994 + $1,857) being the furniture that was not covered by Mr A’s valuation and I will do that.

4. It is difficult for me to make any assessment at all as to how to treat this asserted addback. New furniture depreciates quickly as is evident given that purchases the husband made for $70,000 are now worth $9,505. Whilst that seems to be a significant depreciation of the value of the acquisition of furniture, I am not in a position to judge whether or not the husband was involved in some wasteful or reckless conduct when he bought the furniture. I am not of a mind to allow this item as an addback.

5. The result will be that item 27 will be added back against the husband in the sum of $5,847.

Items 28 – 31 - Addbacks of cash

1. Each of these items is claimed by the wife by way of addback and they have a common basis. Items 28 to 31 as claimed by the wife total $217,750 ($5,000 + $84,000 + $75,700 + $3,250 + $49,800). 

2. In relation to item 28, the husband accepts that he removed from #...55 account on or about 6 September 2010 the sum of $30,000 but then redeposited the sum of $25,000 and he had the advantage of a net amount of $5,000.

3. In relation to item 29, the husband says that he invested $300,000 in a project called the Q Trust between 2002 and 2005. He says his contributions were from “[his] salary, bonus and proceeds of share sales.” He says “there were no capital returns paid by the trust prior to separation.”

4. The husband says there have been three capital returns on the Q Trust. The first was on 26 May 2011 of $30,000; the second was on 9 September 2011 of $30,000 and the third was on 30 December 2011 of $24,000.

5. Consequently, there is no dispute that the husband had the use of $84,000.

6. In relation to item 30, the husband does not dispute that at the date of separation the mortgage on the Suburb L property was nil. The mortgage is currently $275,700. Both parties have received $100,000 out of that borrowing. The difference is $75,700 which the husband sought to explain in various ways. Some or all of it has been expended by the husband to maintain his lifestyle at a level commensurate with that enjoyed prior to him ceasing to be employed on a full time basis.

7. In relation to item 31, in paragraphs 227 and 228 of the husband’s affidavit, the husband says as follows:

   227.Two fully franked dividend payments were made totalling $3,250 which I applied towards my living costs.

   228.I have since sold the CBA shares for $49,800. The proceeds were deposited into my CBA account no. …55.

8. Item 18 on the balance sheet are the husband’s bank accounts which, inter alia, include CBA #...55. The balance in those bank accounts is $63,323.

Conclusion in relation to adding back items 28 – 31

1. The first thing to avoid is double counting. The husband received $100,000 by way of partial distribution (as did the wife) and neither of those amounts were added back onto the balance sheet (by agreement). Since separation it can be seen that the husband had the use of capital of $317,750 ($217,750 + $100,000). Looking at the current assets that might have been sourced by those funds, they are:

   Item 18 bank account - $63,323

   Item 33 Husband’s legal fees - $75,546

2. The amount that might be appropriately notionally added back against the husband in terms of the funds that he had available from capital post separation are therefore in the sum of $178,881 ($317,750 - $63,323 - $75,546).

3. The argument however (based on the authorities such as Chorn & Hopkins (2004) FLC 93–204) is how much of that capital could have reasonably been expended by the husband in relation to his living expenses. That question is intermingled with the other issue as to whether or not the husband, since separation, has taken reasonable steps to obtain some level of remuneration.

4. In relation to that question, there is an issue between the parties as to what conclusions should be drawn from Mr E’s report. Mr E is the single remuneration expert. Counsel for the husband rightly categorised Mr E’s report as a thorough and comprehensive one. It clearly indicates that the husband does not have an earning capacity at his former level. In 2008 the husband was on a remuneration package of $450,000. Mr E indicates that the husband, in a depressed market, is unlikely to regain a position at that level.

5. On page 5 of his report, Mr E says:

   Making a career change to gain any form of employment

   It is possible an employer may be prepared to give [the husband] a start in a position which is a complete departure from his experience background. Whatever that position may be I can see no reason why such an employer would offer more than a figure comparable to average weekly earnings, currently $68,630 p.a.

6. Counsel for the husband argues that Mr E was floating only a possibility and not a probability. I however on the balance of probabilities, find that it is possible that the husband has an earning capacity of average weekly earnings.

7. The husband himself admitted that he had not, at this point, countenanced the idea of damaging his “brand” in the market place by seeking employment at a remuneration level of average weekly earnings.

8. Exhibit 13 is part of the text of an email the husband sent to the wife and is in the following terms:

   Actually, the real truth is I don’t want to work again. I am retired (and tired). I had hoped to do some so with some grace given we had heaps of money to live very well for the rest of our lives.

9. The husband has maintained his lifestyle since the separation. He has spent about $6000-7,000 per annum dining out; he has spent about $6000-7,000 per annum purchasing wine; he pays a regular amount of a couple of hundred dollars per month involving himself in his golfing activities (2 to 3 times a week) and he has spent $12,000 on a trip to Mexico with his daughters. In addition, the husband has expended $3,000 on cosmetic dental work and $6,000 on a partial hair transplant.

10. Counsel for the husband refers to expenditure by the wife (which the husband has not attempted to claim by way of an addback) with the aim of pointing to high lifestyle spending by the wife. Counsel for the husband started by taking me to the wife’s financial statement of 23 June 2012 which indicated that the balance in the wife’s bank account was $94,965. The balance dropped to $31,351 by 7 September 2012 (see exhibit 8 – the wife’s bank statement); the difference being $63,714. The wife explained that she had spent $13,000 on legal fees and had paid a $12,100 deposit towards getting the house painted. That means the wife spent about $38,000 in a bit over a couple of months. Counsel for the husband made the submission that that is indicative of the wife’s lifestyle and the husband should not be criticised for his.

11. However, the bank statement shows transfers to other accounts controlled by the wife. I am far from satisfied that the cross examination in relation to exhibit 8 led me to a position where I could form a conclusion that the wife was living her own lavish lifestyle.

12. I take into account that the husband has had to live since separation. In his affidavit, the husband says that he resided at the Suburb I property from separation until 22 July 2011, but that that property was “too small to accommodate [P] and [H].” P and H moved into the husband’s residence at Suburb J on 31 July 2011. They remain living with him. The husband gave evidence that he has been paying his daughters’ HECS debts and has been providing them with an allowance of $100 per month.

13. Notwithstanding the fact that the husband has expended money on ordinary living expenses and expenses in relation to the children, I find that he has since separation, indulged himself to some degree from capital that otherwise would have been available for distribution between the parties.

14. My conclusion following the considerations set out above is that an amount should be added back against the husband in relation to capital that has been expended by him since separation. I have resisted the invitation in the alternative to deal with it as a s 75(2)(o) FLA matter. To do so would lack transparency. Reaching a quantum to be added back onto the balance sheet is in many ways an arbitrary exercise and having regard to all the matters discussed above, I think it is appropriate to add back one half of the amount that the husband has had available to him from capital, being the approximate sum of $90,000. I will divide that amount for the purposes of the balance sheet as to $45,000 in respect of item 29 and $45,000 in respect of item 30.

Item 34 – W Sport Venue membership

1. At the conclusion of submissions, senior counsel for the wife indicated that it was his position that this interest, which during the trial had been treated as a financial resource, was actually an asset. Senior counsel based that submission on exhibit 15 which was information about what “[AA] seats” cost to purchase. The evidence shows that the cost of an annual subscription in 2013 was $2,327.

2. In his affidavit, the husband says that the Sport Venue Management Board gifted him “2 non transferrable “[AA]” seats entitling [him] to attend sporting events.” The membership lapses on 31 December 2013. The husband in his oral evidence made it clear that he had received the benefit of these tickets as a result of appreciation for personal exertion in a finance industry role that he had completed for W Sport Venue. Exhibit 15 makes it clear that these tickets are transferable. The husband conceded as much in oral evidence but said that he thought morally he should not sell them.

3. Ignoring the value to the husband of the benefit of these tickets for what was left for the 2012 season (which at the date of hearing included, inter alia, two major sporting events), a full season next year at cost is in the sum of $4,654 ($2,327 x 2) and I am prepared to accept that that is the value to the husband of those tickets.

Item 40 – Wife’s Mastercard

1. The wife claims a Mastercard debt of $3,786.96. The wife in cross examination said that shortly prior to the hearing she had paid her Mastercard off. She said however that that was for the previous month and that there had been subsequent transactions in relation to her current Mastercard. It is not appropriate for the purposes of the balance sheet to count the wife’s current Mastercard and it will be assessed at nil.

Item 43 – Husband’s anticipated tax on the rent received for the Suburb I property

1. The rent received for the Suburb I property has been deposited into an account with R Trust and appears as item 21 on the balance sheet in the sum of $48,100. Exhibit 17 is the husband’s calculations in relation to his estimate as to the tax the company will have to pay in relation to that rent. I am prepared to accept that tax has to be paid on income derived from rent. I am prepared to accept the figures on the husband’s calculation as being an appropriate allowance for tax. The amount of $7,520 should be added back as a liability for which the husband shall be responsible.

Possible addback proposed by the wife based upon her assertion the husband has failed to properly exercise his earning capacity

1. In final submissions senior counsel for the wife proposed a possible addback against the husband of $90,000 to take into account the earnings that the husband could have made had he been prepared to set his sights lower. The calculation which was invited was to take average weekly earnings (the figure that Mr E suggested was around $68,000) and multiply that annual income by one and a half years (the length of time from March 2011 until the date of the hearing) less an allowance for tax. The husband ceased working 12 months before separation – his affidavit says he finished August 2009. The submission is that it would have been reasonable to expect the husband to return to the work force by about March 2011.

2. In relation to the $90,000 addback, senior counsel for the wife conceded that this exercise was not a precise calculation and the alternative would be to take it into account as a s 75(2) FLA matter. I do not consider that to date the husband has inappropriately failed to exercise his earning capacity. I will deal with this issue further when considering s 75(2) FLA matters.

A more general matter raised by the husband in relation to addbacks

1. The husband raised a general matter which he said mitigated against having amounts added back against him. The parties agree that the value of N Pty Ltd (item 21 on the balance sheet) is $48,100. This figure represents rental income received for the Suburb I property. Counsel for the husband submits that the rental income would have been higher than that had the wife not stood in the way of leasing the Suburb I unit. The husband does not assert a particular figure to addback; counsel for the husband said this argument was a “shield rather than a sword”, and submitted that the wife is in “no position to criticise” the husband.

2. Exhibit 9 is a bundle of correspondence between the parties’ solicitors, as well as a letter from the wife’s solicitors to the real estate agent the husband had instructed to locate a tenant for the Suburb I property. On 2 July 2011, a prospective tenant offered to lease the Suburb I property for 12 months. In cross examination, the wife said that she had no knowledge about that prospective tenant. On 4 July 2011, the wife’s solicitors asked the real estate agents to “take no further steps in relation to the leasing of the property until [they were] provided with the parties’ joint instructions.”

3. The parties subsequently agreed to instruct those real estate agents to locate a tenant and the husband’s solicitors wrote to the wife’s solicitors on 28 September 2011 confirming their understanding of the terms of leasing the Suburb I property. Those terms included the priority of expenditure for the rental proceeds, but did not specify an account in which incoming rental proceeds would be held.

1. A tenant was located and negotiated a 12 month lease commencing 29 October 2011. On 17 October 2011, the wife’s solicitors wrote to the husband’s solicitors insisting the rental income for the Suburb I property be placed into a company bank account with both parties as joint signatories.

2. I do not find the wife acted in an unreasonable manner. Both parties were the directors and shareholders of the company that is the registered proprietor of the Suburb I property.

3. I note at the end of the hearing the wife agreed to sign a notice of termination in respect of the lease on Suburb I to enable the husband to be reaccommodated in that property.

CONTRIBUTIONS

Pool 1 - Contributions to non superannuation assets

1. The wife submits that contributions to non superannuation assets should be found to be 65/35 percent in her favour. The position of the husband to contributions on non superannuation assets is not greatly different. The husband seeks to quarantine the wife’s inheritance and to give her full credit for contributions to it. The wife’s inheritance represents 23.36 percent of the non superannuation assets ($1,333,127/$5,706,441, where $1,333,127 is the sum of items 16, 22 and 26). The remainder of the non superannuation asset pool is $4,373,314, which the husband asserts the parties contributed to equally. That would lead to a division of non superannuation assets based on contributions of 61.68 percent to the wife (($1,333,127 + $2,186,657)/$5,706,441) and 38.32 percent to the husband. It can be seen that the parties are 3.32 percent apart. The wife submits that the adjustment of 65/35 in her favour is appropriate based upon contributions made on her behalf during the marriage by her family. The husband says that those additional contributions by the wife are offset by “special contributions” that he made as a result of his high income earning, bringing the 65 percent sought by the wife back to 61.68 percent.

Initial Contributions

1. At the date of cohabitation the wife had approximately $2,500 in savings and a Renault motor vehicle which she had purchased two years before which the husband asserts was worth approximately $5000.

2. At the date of cohabitation, the husband deposes he had a Leyland motor vehicle, some furniture and contents, savings of $1803 and $8500 cash from a property settlement with his former wife.

3. The husband agrees that he had some credit card liabilities at the date of cohabitation. He estimates these were approximately $1000.

Financial Contributions

1. The husband was the primary breadwinner.

2. The wife worked from the date of cohabitation in 1982, until the birth of the parties’ first child in 1987. The wife re-entered the workforce in April 2010, shortly before separation.

3. The parties agree that the wife’s parents gifted the parties $20,000 towards the purchase of the Suburb F property.

4. The wife’s parents also gave the parties $91,000 towards the renovation of the Suburb F property. In addition, the wife’s uncle provided physical labour. The wife asserted this was to a value of approximately $16,000. I am unable to assess the value of this work. The husband conceded the wife’s uncle had provided custom carpentry, charging merely for the cost of the materials and not for his labour.

5. The husband concedes in his affidavit that the wife’s parents advanced to the parties $220,000 between 1983 and August 2004. 

Non-Financial Contributions

1. The wife was the primary homemaker and parent during the marriage. She took the children to and from school, and delivered the children to an extensive number of extra curricular activities. She undertook most of the cooking, shopping, and participating in school activities.

2. Between 1984 and 1990, the parties undertook renovations on the Suburb F property and the Suburb L property. The wife asserts she attended to the management of the project because the husband was working on a full time basis. The husband asserts that both parties were heavily involved in these renovations. I am prepared to accept the wife, who was at home, played a greater role.

Post Separation Contributions

1. The wife asserts the husband withdrew $30,000 on 26 May 2011 and 6 September 2011. The husband says he withdrew $30,000 on 6 September 2010, “for safekeeping”. However on 19 April 2011, the husband says he returned $25,000 to the account. This amount has already been taken into account in the adjustments made to items 28 to 31 on the balance sheet.

2. In February 2012, the parties agreed to each withdraw $100,000 from their NAB Line of Credit.

3. The wife has had the benefit of residing in the former matrimonial home since separation.

4. The husband asserts since separation he has paid for P and H’s HECS liabilities, textbooks and material, internet, motor vehicle insurance and registration. The wife denies the husband has paid these expenses since separation; she asserts she paid those expenses for P and H when they lived with her from separation until August 2011.

Wife’s inherited assets

1. As I have already indicated, on 16 February 2012, the wife’s mother, Ms T, passed away. The wife inherited part of her mother’s estate, and she received the property from her father’s estate that had been subject to a life interest in favour of her mother.

2. Given that the parties separated in August 2010, the husband makes no claim of having made any direct contribution to the acquisition of the inherited assets by the wife.

3. In his written outline of submissions, the husband concedes the wife has received legacies from her estates of her late parents in March 2010 from her father in the sum of $600,995 and in February 2012 from her mother in the sum of $849,116 (combined value of $1,450,111). Those amounts are now represented at items 16, 22 and 26 on the balance sheet (their total being $1,333,127) and as set out above, represent 23.36 percent of the non superannuation assets ($1,333,127/$5,706,441).

Assertion by the husband that he made a special contribution

1. The husband in his written submissions said the following: 

   11.    The husband says that the funds advanced from her parents are counter balanced by the following special contributions he made. Examples include:

Date(s)	Description	Ref
Total income earned 1982-2010	11,591,970	Annexure A [to the husband’s affidavit]
1991-1998	Home loan of $287,500 paid in full	H #28-31
2002	Invested $300,000 over 3 years in [Q Trust] via income and bonuses	H #51,52
2011-July 2008	[Suburb I] property acquired by the [Newman] Family Trust for $1.62m, with $750,000 sourced from husband’s savings, bonuses and vested share options and $800,000 financed. The $800,000 was paid out by July 2008 from using bonuses from husband’s then employer and rent.	H #54-60
1984-2000	Shares received as a result of employment with [X Company], sold for $2.7m.	H #16; H #61,62

12.The husband’s income and bonuses were performance-based. The husband’s case is that the indirect contribution of the wife as homemaker and parent did not equal nor fully offset his direct financial contribution having regard to the extent of his special contributions arising out of his skill and talent. He says that “extra” contributions from the funds advanced to the wife by her parents were at least offset by his special contributions during the marriage.

13.Further it was over the last few years of the marriage that the maximum performance-based income was being earned. The husband earned in excess of $2.9m in total between 2005 and 2010 alone. As the children were aged in their mid to late teens they required much less supervision from the wife than in their pre-teen years. (footnote omitted)

14.Indeed even in 2005 the children were aged 18, 16 and 13 and by 2010 were aged 23, 21 and 18 respectively.

15.The bulk of the income and bonuses earned, particularly in the final years of the marriage, were applied to acquire significant assets which are existence [sic] today.

16.The husband also managed the investments of the parties and was successful in ensuring that they produced substantial income and grew in value.

17.The husband’s case is that his efforts and skill are a special factor attaching to the performance of his particular role taking it [sic] taking his contributions outside the “normal range”. (footnote omitted)

18.Examples in previous cases are not prescriptive and a finding of a  special contributions [sic] is not necessarily dependant [sic] upon the size of the asset pool.

1. As senior counsel for the wife pointed out, the table at page 9 of the husband’s written submissions contains some double counting.

2. Annexure A to the husband’s affidavit sets out what the husband says his sources of income were over a 28 year period from all sources. It is accurate to say that that schedule indicates the husband earned $11,591,970 between 1982 and 2010 (from all sources). Averaged out over the period of 28 years, it is an annual income of a bit over $400,000 a year. When the parties commenced cohabitation in 1982, the husband was on $35,000 a year and that income dropped to $27,500 the following year. True it is the husband’s level of income rose progressively to a stellar year in 2002. The husband during the marriage developed skills to be an executive in the finance industry.

3. A number of cases have dealt with the concept of “special contributions” (see for example JEL and DDF (2001) FLC 93-075; Figgins & Figgins (2002) FLC 93-122; SL & EHL [2005] FamCA 132; Smith & Fields [2012] FamCA 510).

4. Insofar as there is a special contribution case, this is not one of them. It is true that the husband earned a level of income that was significantly more than average weekly earnings but he did so using skills which he had developed during the marriage, working in an industry which remunerated its experienced employees at levels far in excess of average weekly earnings. I infer the husband was able to develop these skills having been substantially freed by the wife from the primary role of homemaker and parent. Although it goes without saying, I repeat that in the context of this long marriage with children, the role of homemaker and parent “should be recognised not in a token way but in a substantial way” (Mallet v Mallet (1984) 156 CLR 605; Ferraro & Ferraro (1993) FLC 92-335).

Conclusion in relation to contributions to non superannuation assets

1. As earlier noted, the parties are 3.32 percent apart on the issue of contribution to non superannuation assets (3.32 percent represents about $190,000 in monetary value). The wife points to the significant contribution made very early in their marriage by her parents when the Suburb F property was purchased. That contribution represented about one sixth of the purchase price. The Suburb F property was subsequently sold and the current matrimonial home (item 1) purchased. The parties have made a myriad of other contributions during the 28 years of their cohabitation, including substantial earnings by the husband. Some acknowledgment should be given to the contributions made on behalf of the wife from outside the marriage.

2. I conclude that looking at all the contributions to non superannuation assets, that an assessment should be made that the wife has made 62.5 percent contribution and the husband 37.5 percent contribution.

3. In dollars, 62.5 percent of the non superannuation assets amounts to $3,566,526 ($5,706,441 x 62.5%) and 37.5 percent is $2,139,915.

Pool 2 – Contributions to superannuation assets

1. As earlier indicated, it seems that the parties have agreed that the contributions to superannuation assets should be treated as equal. The superannuation assets total $1,188,462 and therefore each party should be taken to have contributed $594,231.

Contributions overall

1. It can be seen that based on contributions, the wife would receive $4,160,757 ($3,566,526 + $594,231) or 60.35 percent and the husband would receive $2,734,146 ($2,139,915 + $594,231) or 39.65 percent.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

1. The husband seeks 30 percent of the inherited assets. That is the equivalent of $399,938 ($1,333,127 x 30%), which in turn is 5.8 percent of the overall net assets ($399,938/$6,894,903). The wife seeks that there be no adjustment for s 79(4)(d)-(g) matters.

2. The parties are of similar ages; the wife is 54 and the husband is 57. Neither party raised health issues that would warrant an adjustment.

3. The wife does not have a significant earning capacity “given [her] lack of formal qualifications, [her] work experience and [her] age.” I find that the wife has maximised her earning capacity. She is currently receiving about $52,000 gross a year.

4. The husband has, in the past, had a significant earning capacity. In the wife’s affidavit, she lists the husband’s taxable income for the last five years:

   For the year ended 30 June, 2007: - $334,534.00

   For the year ended 30 June, 2008: - $787,447.00

   For the year ended 30 June, 2009: - $814,815.00

   For the year ended 30 June, 2010: - $112,096.00

   For the year ended 30 June, 2011: - $16,267.00

5. The husband was paid bonuses in the 2007 and 2008 financial years. He says in those financial years he received $489,680 and $943,795 respectively.

6. As I have said above, the remuneration expert has given evidence that it is unlikely (less than 30% probability) the husband will gain a position where he is earning his previous remuneration level ($450,000). Mr E opined that if the husband were to gain a middle management position in the Finance sector, or the broader Commercial sector he would be able to command approximately $150,000 per annum, although his age and unemployment status would place him at a competitive disadvantage for these positions. If the husband were to commence employment in a completely new field, Mr E opined that he would be paid at average weekly earnings. I accept the husband has been earnest in his endeavours to attempt to obtain employment at his former level and that he has been hopeful for a managerial position. That hope has led him to refrain from seeking work at a lower level. Senior counsel for the wife accuses the husband’s pride of standing in the way of him now attempting to obtain work at a lower level.

7. I am unable to find that the husband’s current future earning capacity is higher than average weekly earnings ($68,630 per annum).

8. Given the statement made by the husband to the wife and statements made by the husband on a number of occasions that the wife had blocked his access to a transition to retirement pension from his interest in the self managed superannuation fund, on balance it is likely that the husband will not in fact ever seek employment at a lower level. There is some prospect that the types of activities the husband described involving consultation on a major project may provide him from time to time with remunerative consultancy work. I accept that to some extent this litigation has been a disincentive for the husband to concentrate on fulfilling the potential that he has and the end of it will make him freer to do so.

9. I find that the husband’s future earning capacity is slightly higher than that of the wife.

10. The husband’s argument for an adjustment on s 79(4)(d)-(g) matters relates to the disparity of assets between the two parties.

11. In relation to s 79(4)(d)-(g) matters, senior counsel for the wife suggested that the wife’s inheritance was more a break on any claim that she might have for an adjustment in her favour rather than creating a circumstance which would allow an adjustment in the husband’s favour.

12. Senior counsel for the wife submits that it is appropriate to look at the source of funds of which that disparity arises, saying that if an adjustment for s 79(4)(d)-(g) matters as urged by the husband is made, basically from the wife’s late inheritance, I would in fact be rewriting the deceased’s Will. I put little weight on that submission.

13. As I have said, items 16, 22 and 26 represent monies the wife has received from inheritances. The wife anticipates receiving $728,072 (see item 22) from her mother’s estate once that has been administered. I note at this point however, that figure is subject to a claim that has been made by Mr V. Notice has been served that Mr V intends to make a claim under the Family Provisions Act 1969 (ACT) and in addition, Mr V is considering “commencing proceedings alleging that the late [Ms T’s] Will was prepared in suspicious circumstances because a person involved in the preparation of the Will received a significant bequest in the Will”. The claim that has been made by Mr V happened shortly prior to the commencement of the hearing and all that exists at the moment is a bare claim. It is impossible for me to make any assessment as to what effect it might have on the asset which is at item 22 in the balance sheet. The fact that Mr V has a life interest in the property owned by O Pty Ltd and the whole of that property will eventually flow to his daughter might mitigate against the success of any such claim or at least its quantum.

Conclusion in relation to s 79(4)(d)-(g) adjustment

1. Having considered the matters discussed; given that the husband will receive $2,734,146 (nearly 40 percent) in assets and superannuation and given that he has a continuing earning capacity sufficient to support himself, I find that it is not appropriate to consider any further adjustment in his favour from the assets that the wife will have after a division of the assets based on the contributions findings.

JUST AND EQUITABLE

1. The result of the conclusions that I have come to in relation to contributions and s 79(4)(d)-(g) FLA adjustment would lead to an overall division of assets as to 60.35 per cent to the wife and 39.65 per cent to the husband.

2. The overall percentage division could be achieved by a distribution of the assets and liabilities in accordance with the following table.

Husband gets 39.65%
Assets
Item No.	Description	Percentage	Value
2	Suburb I apartment	100%	$1,600,000
4	Q Trust	100%	$129,000
5	CommSec share portfolio (x 1,000)	100%	$0
6	Holden	100%	$6,900
7	2003 Mercedes	100%	$26,500
10	Jewellery	100%	$2,280
13	Gold Ingot (1 ounce)	100%	$1,603
15	Suburb J contents (plus items from wife)	100%	$9,505
18	Bank accounts (CBA …55/CBA …18)	100%	$63,323
19	Wine (including Grange)	100%	$480
21	N Pty Ltd (R Trust funds)	100%	$48,100
25	Swaab trust account	100%	$9,500
27	CBA withdrawal to fund new furniture	100%	$5,847
28	Removed from #...55 account on 6/9/10	100%	$0
29	Q Trust capital returns	100%	$45,000
30	Increase in mortgage debt	100%	$45,000
31	Sale of CommSec shares	100%	$0
33	Husband's paid legal fees	100%	$75,546
34	W Sport Venue memberships x 2	100%	$4,654
46	ANZ	100%	$78,660
12	Fine arts	100%	$1,945
44	C Superannuation Fund	54.5%	$587,823
Liabilities
Item No.	Description	Percentage	Value
36	CBA credit card	100%	$0
37	AMEX credit card	100%	$0
43	Anticipated tax (Newman Family Trust)	100%	$7,520
Net Assets to Husband			$2,734,146
Wife gets 60.35%
Assets
Item No.	Description	Percentage	Value
1	Suburb L property	100%	$2,350,000
3	O Pty Ltd units	100%	$0
8	2011 Mercedes	100%	$52,250
9	Jewellery	100%	$18,050
11	Fine arts	100%	$28,500
14	Suburb L contents	100%	$92,019
16	Estate of the late Mr T	100%	$600,995
17	Bank accounts	100%	$31,535
20	Wine at Suburb L	100%	$500
22	Estate of the late Ms T	100%	$728,072
23	Estate of the late Ms T	100%	$0
24	Debt due by M	100%	$0
26	Debt due from Estate Ms T	100%	$4,060
32	Wife's paid legal fees	100%	$78,497
45	C Superannuation Fund	100%	$22,615
47	U Superannuation Fund	100%	$8,180
44	C Superannuation Fund	45.5%	$491,184
Liabilities
Item No.	Description	Percentage	Value
35	NAB Mortgage	100%	$275,700
38	Ms T debt	100%	$0
39	Ms T car debt	100%	$70,000
40	Mastercard	100%	$0
Net Assets to Wife			$4,160,757

1. Counsel for the husband submitted that the husband would be unable to make a cash payment to the wife without selling the Suburb I property. In order to achieve a 60.35/39.65 percentage adjustment, I find it appropriate to alter the husband’s superannuation interests in such a way that does not require a cash payment to be made by him. As can be seen from the above table, there needs to be a splitting order made in respect of the husband’s interest in the C Superannuation Fund so that the wife receives a base amount in the sum of $491,184. The order sought for a binding death benefit nomination will have a percentage of 45.5 percent, being $491,184/$1,079,007.

2. Standing back I conclude that this division of assets achieves a just and equitable outcome for the parties.

3. I will also make some uncontroversial orders that the wife remove herself from the offices she holds in N Pty Ltd and D Pty Ltd, and transfer her interests to the husband or his nominee.

I certify that the preceding one hundred & forty two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 January 2013.

Associate:   

Date:  30.1.2013