Owen and Smith and Ors

FAMILY COURT OF AUSTRALIA

OWEN & SMITH AND ORS

[2017] FamCA 113

FAMILY LAW – PROPERTY DIVISION – FINAL – Review of a Judicial Registrar’s decision – Just and equitable – Contribution considerations – Whether a sum of money advanced by the husband’s parents was a gift or a loan – Whether some of the post-separation expenditure by the wife should be ‘added back’ and considered as part of the ‘pool’ – Where an adjustment is made pursuant to s 75(2) – Where a superannuation splitting order is made

Family Law Act 1975 (Cth)

Stanford v Stanford (2012) 293 ALR 70
Farnell & Farnell [1995] FamCA 140
DJM & JLM [1998] FamCA 97
Chorn v Hopkins 920040 FLC 93-204
Omacini & Omacini (2005) FLC 93-218
Coghlan & Coghlan (2004) 33 Fam LR 414

APPLICANT:

Ms Owen

RESPONDENT:

Mr Smith

INTERVENERS:

Mr A Smith and Ms B Smith

FILE NUMBER:

SYC

6078

2008

DATE DELIVERED:

3 March 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Forrest J

HEARING DATE:

12, 13, 14 & 15 March 2012 and 8 & 9 February 2016

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Tockar

SOLICITOR FOR THE RESPONDENT:

Uther Webster & Evans

COUNSEL FOR THE INTERVENERS:

Ms Knox

(on 12, 13, 14 & 15 March 2012)

COUNSEL FOR THE INTERVENERS:

Ms Messner

(on 8 & 9 February 2016)

SOLICITOR FOR THE RESPONDENT:

Roderick B Harris & Co

Solicitors

Orders

It is declared that the husband is indebted to the Intervenors in the sum of $263,247 in respect of monies advanced to him during his marriage to the wife and in 2009 for his payment of additional tax assessed as owing by him to the ATO.
It is ordered that the Intervenors repay the sum of $12,886.72 to the Macquarie Bank Controlled Monies Account in the name of Uther Webster & Evans, Solicitors, in Trust for Mr Smith and Ms Owen, Account No. …65 (“the Controlled Monies Account”).
It is declared that upon repayment of the said sum of $12,886.72 as required by paragraph (2) hereof the husband will no longer be indebted to the Intervenors as declared in (1) hereof.
That upon repayment by the Intervenors of the sum of $12,886.72 to the said Controlled Monies Account, the parties shall do all acts and things and sign all documents necessary to direct and authorise Macquarie Bank Limited to distribute the balance of the funds in the said Controlled Monies Account as to the sum of $234,963.28 to the husband or at his direction and any balance of the funds left after such disbursement as to 52.5 % to the wife or at her direction and as to 47.5 % to the husband or at his direction.
That in accordance with s 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the Husband in the C Superannuation Fund (“the Fund”), the Wife will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $253,462 (two hundred and fifty three thousand, four hundred and sixty two dollars) and that there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
That Order (5) binds the Trustee of the Fund and that Order takes effect from the operative time being the fourth business day after the date of service of a sealed copy of these Orders upon the Trustee of the Fund.
That each party and the Trustee of the Fund has liberty to apply on not less than three (3) business days’ notice, in respect to the implementation of the super splitting orders.
That unless otherwise specified in Orders, the husband retain and be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:
(a)       The real property situated at D Street, Suburb E;
(b)All cash at bank in accounts in his name or held in his name jointly with any other person;
(c)       All shares registered in his name;
(d)       His 4WD motor vehicle NSW registration number …;
(e)All of his superannuation entitlements, save for those subjected to a splitting order in favour of the wife in paragraph (5) hereof;
(f)All other personal and real property in his possession, custody or control as at the date of this Order.
That unless otherwise specified in these Orders, the Wife retain and be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:
(a)      all cash at bank and other monies invested or held by her in her name;
(b)      all shares registered in her name;
(c)      all personal effects in her possession;
(d)      any motor vehicle in her possession;
(e)her superannuation entitlements, including those deriving from the operation of these orders;
(f)all other personal and real property in her possession, custody or control as at the date of these Orders.
That in the event that the Husband or Wife refuses or neglects to comply with any of the provisions of these Orders within seven (7) days of a document being forwarded to either of them for their completion, a Deputy Registrar or a Registrar or any other Officer of the Family Court of Australia at Sydney be appointed pursuant to s 106A(1) of the Act, to execute all such deeds and documents in the name of the defaulting party and to do all acts and things necessary to give validity to the said Orders.
The Registrar or a Deputy Registrar of this Court at Sydney are authorised to execute any such necessary instruments upon being satisfied by Affidavit that refusal, neglect or default, as the case may be, has occurred.
That save as otherwise provided in these Orders, the husband indemnifies the wife and shall hold her indemnified in respect of any debt he has in his sole name including any debt to his parents, the ATO, and any debt to any other third party relating to the finance of his motor car or secured by mortgage over real property registered in his name or in respect of credit cards as well as all costs and liabilities arising from the proceedings in the NSW Civil and Administrative Tribunal, file numbers HB … and HB ...
That save as otherwise provided in these Orders, the wife indemnifies the husband and shall hold him indemnified in respect of any debt she has in her sole name including any debt to her parents, her brother, any of her friends, the ATO, the Commonwealth Government pursuant to the HECS-HELP scheme and any debts to any other third parties in respect of credit cards or legal fees.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 6078 of 2008

Ms Owen

Applicant

And

Mr Smith

Respondent

And

Mr A Smith and Ms B Smith

Interveners

REASONS FOR JUDGMENT

This judgment finalises property adjustment proceedings between the husband and the wife that were commenced by the husband in the Sydney Registry of this Court in 2008. The husband’s parents are also parties to the proceedings. They intervened, seeking repayment of money said to be owed to them by the husband and the wife.
The matter first went to trial before Judicial Registrar Loughnan (as his Honour then was) in early June 2010. His Honour delivered his judgment in a timely fashion on 6 July 2010. Shortly thereafter, the wife filed an application seeking to review that decision, as was her right. As reviews of decisions of Judicial Registrars were heard by Judges as hearings de novo, the matter was ultimately listed before me for another trial in Sydney over four days in March 2012. The sheer number of matters awaiting trial in Sydney at any time explains the length of time from the filing of the review to the new trial.
At that trial, the husband was represented by solicitor and counsel; the intervenors were represented by solicitor and counsel; and the wife appeared on her own without legal representation.
Unbeknown to the Court at the time, during the course of that four day trial, proceedings were commenced against the husband and the wife in the New South Wales Consumer, Trader and Tenancy Tribunal (the predecessor of the New South Wales Civil and Administrative Tribunal (“NCAT”)) by the purchaser of one of the duplex properties the husband and wife had developed and sold during their marriage and after their separation. That person was seeking redress for work alleged to be defective along the boundary between the two duplexes developed by the husband and the wife. The purchaser of the second duplex property also joined in those Tribunal proceedings in August of 2012.
As a consequence of the commencement of the Tribunal proceedings against the husband and the wife, later in 2012, whilst my judgment remained reserved, the husband applied to the Court to reopen the hearing. Because of the potential for there to be significant liability to those third parties consequent upon those Tribunal proceedings, I ordered the reopening and further adjournment of the husband’s case in this Court pending the determination of those Tribunal proceedings.
Those proceedings were ultimately concluded in the second half of 2015. The conduct of those proceedings was completely out of the control of this Court. When this Court was informed that the Tribunal proceedings had been finalised the matter was listed again before me for a further two days of hearing so as to conclude the matter. That was in early February, last year, thus concluding the trial after a four year interlude. Whilst the husband and his parents were again legally represented on those days, the wife yet again appeared without the benefit of legal representation.
It is just over a year now that my judgment has been reserved. I attribute that delay to the responsibility of having to hear and determine many other matters in this busy Court, particularly many complex and difficult parenting disputes involving allegations of sexual and physical abuse of children. In addition, I was on leave for a lengthy period in the middle of last year. I am not unaware of the emotional and psychological difficulties that the wife has been struggling with since the breakdown of her marriage with the husband and particularly since the commencement of litigation in this Court and other Courts as well as the Tribunal. The delay in delivering final judgment in this matter is regrettable, particularly having regard to the wife’s psychological issues, and it is sincerely hoped that the finalisation of the matter that this judgment now brings will assist the wife and the husband to move on with their lives with greater certainty.

The Issues

There are many issues in this matter. In summary though, there is disagreement between the husband and the wife about the following relevant matters:
a)The extent and value of their respective property interests at the commencement of their cohabitation;
b)The nature and form of their respective contributions across all spheres of the marriage;
c)Whether or not some of the money advanced by the husband’s parents and utilised by the husband and the wife during their marriage was a gift or a loan required to be repaid and, if a loan, the amount actually owed;
d)Whether some of the post-separation expenditure of the former couple’s capital by the wife should be treated as partial property settlement to be considered as part of a ‘pool’ of property to be adjusted between the former couple and considered as some of her entitlement already received;
e)Whether the amount of money paid out by the husband towards the rectification of works done at their former properties and the costs of the third parties in the Tribunal proceedings in finalisation of their claims made in the Tribunal should be treated as a joint liability of the parties to be considered in determining the pool of property to be adjusted between the former couple or rather a liability to be borne solely by the husband;
f)The wife’s current earning capacity.

Some Relevant Historical Background

The husband and wife met and began dating sometime in the early to mid-1990s. They do not agree on the precise timing of that. The wife says it was in 1992 and the husband says it was in 1994. The husband had been married before but had no children. Sometime in 1992, it seems the husband and his first wife and his parents, Mr A and Ms B Smith, purchased a property in F Street, Suburb G. They bought it for $300,000, with the husband contributing $150,000 and his parents paying the balance of the purchase price. The husband operated a business from that site. Within the following year, the husband’s father purchased the adjoining F Street property for $135,000 and that land was also used for the husband’s business.
The wife’s parents lived across the road from the Suburb G properties where the husband’s business was conducted. Apparently, they introduced their daughter to the husband at some point in time after the husband commenced operating the business from the Suburb G property.
Though, in my judgment, not very much really turns on the point of when the husband and wife first started dating, I am more inclined to consider they did not start dating in 1992 as the wife asserts because the evidence suggests the husband and his first wife were still together when the first Suburb G property was purchased. Given that the husband’s first wife apparently transferred her interest in that property to the husband in June 1994, I expect that was closer to the date that the husband and the wife actually started their relationship.
The wife had also been married before. She has a daughter, Ms H, by that marriage, who was born in 1985. She and her former husband had separated in early 1986, when Ms H was only three months old and the wife had parented Ms H almost solely since that time. When the husband and wife commenced their relationship, Ms H was attending private school in the northern suburbs of Sydney. The wife never received child support or financial assistance from Ms H’s father, though she maintained an amicable relationship with him and his extended family of origin. He is a Country I man the wife had met and married whilst on an extended stay in Country I in her young adulthood. She had various forms of employment whilst living and working in Country I. According to the wife, she became reasonably fluent in the spoken I language during her extended stay in that country. She has maintained a direct interest in Country I ever since.
When the husband and the wife began their relationship, the wife was employed as a professional and was earning about $65,000 per annum. She also had an ownership interest in a small business (Business L) in partnership with her parents. There was quite conflicting evidence adduced at the trial about the form of the ownership of the business and the assets it possessed from time to time, as well as the income it generated over the years. I will return to this subject later.
The husband’s parents assisted him in running his business at Suburb G from the time of its purchase until just before it was sold in 2000. They apparently gave most of their time voluntarily out of love and affection for their son and though paid sometimes, were not paid very much at all for many, many hours of work over those years.
In 1994, the wife enrolled in a university degree and diploma course with the intent of gaining professional qualifications. She withdrew from that course in 1994 due to the pressures of work and sole parenting.
A few years after commencing their relationship, the husband and the wife began living together and they married in 1997. Ms H was then 12 years old. The husband was 30 years old and the wife was 40 years old.
Again, they disagree as to the date that they actually began living together. The husband says it was in late 1996. Although the wife does not accept that, her evidence was more uncertain. In affidavit evidence, she said it was just before they married in 1997. In her oral evidence, she said it was “mid to late” 1997. I was satisfied that the wife’s account of the commencement of their cohabitation was fixed by her forming a view that the later the date that cohabitation is found to have commenced in 1997, the more favourable to her, rather than by reference to her actual memory. This I attribute to the disputed issues about her property interests at the time, including their value and the equity she held in them. The wife’s evidence led me to that conclusion. I considered that she was at great pains to relate the commencement of cohabitation to a date as close to their wedding date as possible. In her oral evidence at the trial, she maintained that a reference to “mid-year” by her is a reference to August, not June or July. She related that to the fact that she took her annual snowboarding holiday each August and she always considered that to be “mid-year”. She also pointed to mail addressed to her at her Suburb J address in November 1997 and mail addressed to her husband at his Suburb G business address in the same month and submitted that was evidence that they were not living together in her Suburb J property at that time as the husband asserted. She said he lived in a cottage at the Suburb G business, and that is why his mail was addressed to him there. However, I consider it unsurprising that there would be mail addressed to the husband at his business address in November 1997 and I do not regard that as determinative of his place of residence. The wife also maintained that her daughter’s attendance at an exclusive religious private school at the time made her conscious of the need to maintain the outward appearance of morality by not being seen to be living together with her partner before marriage. She submitted that further supported her case that she and the husband did not start living together until just before they married.
Though I cannot be precise in my determination of this factual matter, I was not persuaded by the mother’s evidence on this point notwithstanding the efforts she went to in trying to persuade me. I consider that it is more likely that the parties were living together at the wife’s Suburb J property at least by the end of June in 1997, if not earlier than that, as the husband asserts.
Generally, though not necessarily on every matter, I considered the husband’s evidence to be far more reliable than the wife’s evidence. There were a number of matters in particular on which the wife’s credibility overall was seriously damaged. I will return to those later in these reasons.

The Wife’s property interests at the commencement of cohabitation

The wife owned a property in the Sydney suburb of Suburb K until 1995. She sold it and then used the proceeds of sale to purchase the property at Suburb J that was registered in her sole name in or around May that same year. The Suburb J property was purchased for $257,500. The wife says that she borrowed $30,000 from her parents to have sufficient funds to complete the purchase. Though the wife had originally asserted in evidence she gave in the proceedings that she owned all of the equity in the Suburb J house at the commencement of cohabitation, evidence adduced at the trial showed that she had borrowed $108,000 secured by mortgage over the property at or around the time of purchasing it and that later in March 1996, she had refinanced and discharged the existing mortgage debt, increasing her borrowings to $141,000. The wife gave seemingly confusing evidence about this, which I essentially understood to be an assertion that she had put in place a line of credit secured by mortgage that she drew down on from time to time to fund renovations and improvements to the Suburb J property. I understood her to use this asserted fact as support for arguing for a finding that she owned more equity in that property at the commencement of cohabitation than the husband was willing to concede.

However, the evidence confirmed that at least when she borrowed the amount of $141,000 in March 1996, she began paying principal and interest monthly payments of $1,160 on a regular basis. That fact persuaded me to the view that she had borrowed and used the entire sum of $141,000, rather than simply having an undrawn line of credit to that amount at her disposal at the time. The wife’s evidence that she had not used that money, confusingly maintained in the face of the clear documentary evidence, also did her credibility no service.
There was historical valuation opinion from a jointly retained expert adduced into evidence. That expert expressed the opinion that the wife’s Suburb J property was retrospectively valued at $325,000 at 1 December 1996 and at $425,000 at 1 December 1997. As I have indicated, the wife argued that she brought a $425,000 property into the marriage. For the husband, it was ultimately submitted, based on an apparent acceptance that the Court would at least be satisfied that cohabitation had commenced by “mid-1997”, that the wife’s Suburb J property should be considered to have been worth an amount fixed midway between the two retrospective valuations, with her equity in that property at that time being equal to that value less $141,000 in mortgage debt.
In my judgment, that is a reasonable submission, though it does not allow for the fact that monthly principal and interest payments of $1,160 from March 1996 until mid-1997 would have reduced the principal debt by some amount, albeit likely to have been fairly small. Accordingly, I am prepared to consider that the wife had equity in the Suburb J property of about $240,000 - $250,000 around mid-1997, by which time, I am satisfied, cohabitation had commenced.
The wife also said that she had owned a motor car, some cash kept in her home, and her own personal possessions. She said she also owed her parents $30,000 that she had borrowed when she bought the Suburb J property. She also asserted that her interest in her business was worth $98,000 at the time she began living with the husband. I do not accept that evidence about the value of the business.

Business L

As I have already alluded to, the evidence that the wife adduced about Business L was varied and inconsistent. In an affidavit filed in August 2009, she said:
I owned the business with my parents from about 1980 to 2003 and it provided a regular net income of about $30,000 per annum, which I applied towards general living expenses and payment of private school fees whilst [Ms H] attended [Suburb J] College.
The wife did not assert a value for the business in that affidavit.
In her affidavit filed January 2012, the wife asserted that she had equipment at the commencement of cohabitation worth a total of $98,000 and attributed that to an independent valuation. What the wife put into evidence to support that were documents from the insurance company noting insurance cover on 2 pieces of equipment. It was not a valuation.
In her oral evidence the wife conceded that she had just taken the amount that one piece of equipment was insured for and multiplied it by the number of in total she said the business had in stock at the relevant time to arrive at $98,000. She then said, when asked about her previous evidence that she and her parents owned Business L together, that her father had actually retired in 1997 and had given her the equipment. She then strangely said “I owned the [equipment] but my father burdened the tax.” Then a moment later, she said “we all burdened the tax actually.” Moments later again, the wife said that her father actually had transferred the business to her in 1994. She then confirmed that meant her father was not taking any income from the business from 1994. Then, however, she asserted that her parents still ran the business after that, her mother doing the books and her father doing maintenance and delivery. She said that “people came to my parents’ place, paid the cash or money orders”. When asked who then received the income, she said that she and her parents received it and that her father “shared” the tax burden. Then, a moment later, she said that she received the income from the business from 1994. She also then said that her parents had sold her their interest in the business in 1994 for $8,000, but said that was restricted to the “goodwill” not the stock, which she then said her father had sold off. Then she acknowledged that she had been shown a document at the trial in 2010 that evidenced a sale of the business including stock to her in 1994 for $8,000, yet she continued to deny that her father had sold her any stock. She then asserted that the written agreement evidencing her buying her parents’ share of the business was done so that stamp duty could be paid, yet incredibly, in virtually the same sentence, she said that the figure of $8,000 did not truly represent what the stock was worth. She then went on to say that she had closed down the business in 2004 and her father had given her $20,000 for the remaining stock and sold it off himself. She claimed she did not charge her father “top price” for the stock.
The wife also gave evidence that her father bought stock and sold it as equipment aged over the years the business was run.
The wife was then asked about her affidavit evidence that the business provided her with income of $30,000 per year between 1998 and 2002. She told the Court that her father would collect the money and then pay it to her “as a gift” still maintaining that he shared the “tax burden”. The wife then said that sometimes she declared the income on her “tax bill”, but again said that she and her father shared the income the business brought in.
The wife’s father swore an affidavit that was filed by the wife in November 2009. In that affidavit, he said that all of the income was paid to him and his wife and they then “bore the burden of all income tax” before then paying the wife’s “share of the earnings” to her. He said he bought equipment for the business in about 1999 for about $1,800 to $2,000 each. He also said that the equipment the business owned was purchased around 1980. He said that he also recalled the wife owning equipment at the time she married the husband and he asserted it was sold a short time after the husband and wife were married for $8,000. He said the business’s inventory was ultimately sold off for about $2,000 to $2,500 each. In his oral evidence, the wife’s father actually confirmed that from 1998, when he started receiving a pension, he did not pay any tax, including any for income generated by the business. In his oral evidence, the wife’s father said that the stock he had previously thought he had bought in 1999, he actually bought in 2001.
The husband had also said in his affidavit evidence that his business had bought equipment after he married the wife. He said it was hired out in Business L and the hiring had earned about $500 per week – the equivalent of $26,000 gross per year. The wife and her father each denied that the husband’s business had bought the equipment. That was an interesting disputed fact that I found difficult to decide, ultimately leaning towards a view that the husband had not bought the equipment and was probably wrong about that assertion. The evidence of the wife’s tax returns principally persuaded me to that view.
Counsel for the husband showed the wife her completed and lodged tax returns for the years 1997 to 2001. Those returns evidenced the wife’s income from the business for each of those years at $4,408, $1,923, $2,409, $3,150 and $6,503.
One thing is clear from all that evidence and that is complete uncertainty. The wife’s evidence and her father’s evidence were inconsistent and the wife’s evidence was internally inconsistent from one moment to the next. I was satisfied that she was just saying whatever she thought would help her establish the best case she could present as the thought came into her head. She was desperately trying to establish that the equipment was worth a lot of money at the commencement of cohabitation and that it produced a good income for her that she contributed to the marriage from 1997 to 2003.
In the end, I accept most of the wife’s father’s evidence and I consider the husband’s evidence that he bought equipment to probably be mistaken. I reject all of the wife’s evidence that is not consistent with her own father’s evidence. As I have said, the wife’s evidence was inconsistent and confusing. Accordingly, I am satisfied that the wife probably owned stock in the business at the time her cohabitation with the husband commenced. I accept it was probably worth around $20,000 in total at that time and I accept she had another item of stock, worth around $8,000. That is a total of $28,000. I do not accept that the wife obtained income of $30,000 per year from the business between mid-1997 and 2003. She declared a total of $18,393 in income from the business during those years. That is what I accept is the income the business generated for her after her marriage to the husband. I consider the husband’s evidence that the equipment was generating about $500 per week in income to also be mistaken.
Accordingly, I find that the wife had equity in her Suburb J property of about $240,000 to $250,000, a motor car, her personal possessions, around $28,000 worth of income from the business and a debt to her parents of $30,000 at the time she and the husband commenced cohabitation by mid-2007.

The Husband’s property interests at the commencement of cohabitation

The husband and his parents regarded the two properties in F Street, Suburb G as being owned by all three of them as to a third each. With the assistance of expert opinion as to historic valuations the husband and wife agreed that the husband’s interest in the Suburb G properties at the commencement of cohabitation was worth $190,000. It was also agreed that his interest in his business, owned through a corporate entity, was worth $125,000 at that same time.
The husband also owned a car, some personal possessions and a very small amount of superannuation.
Therefore, the husband had property interests with a total value of around $315,000 and the wife had property interests with a total value of around $238,000 to $248,000 when they started living together.

Some more relevant history

The husband and wife caused renovations to be done to the Suburb J property. Money was borrowed from the husband’s parents and the wife’s parents to pay for these, in addition to money the husband and wife contributed themselves from their own income. Family friends of the wife’s family helped by doing some of the work at rates cheaper than market rates and the husband and wife undertook some of the work themselves. Their own family members also helped do some of the work. Staff of the husband’s business also undertook some of the work.
The wife started working from time to time in the husband’s business and her parents, who lived across the road from that business premises, also did some work in the business for which, I am satisfied, they, like the husband’s parents, were not properly remunerated.
In about 1999, the husband started studying for an MBA. The tuition fees totalling $36,000 were paid from the earnings of his business and claimed as business expenses.
The husband and his parents, with the wife’s assistance and encouragement, worked on and pushed through the Suburb G City Council approval process a development application for the construction of town houses on the F Street properties. They did encounter some difficulties along the way and, at the trial, the wife claimed principal responsibility for the success of this application. The husband and his parents did not agree with that. I am satisfied that the wife was involved and contributed to it, but not that she was principally responsible for it.
The husband and his parents were then able to sell the Suburb G properties with the development approval in place for a total of $900,000. They split the proceeds of sale equally between the three of them with the husband receiving $300,000.
The husband had also commenced an internet based business and the parties ran that through another corporate entity, M Pty Ltd, that was established in or around 2000. The wife worked in this business as well as continuing to do some freelance work, which she did in her own right and also through the husband’s company. She also trained in the use of an accounting software package through a TAFE course.
In 2001, after the Suburb G properties were sold, the husband also sold the business that he had owned through a corporate entity. He sold it for $250,000, having steadily built it up in value in the four years since he and the wife commenced cohabitation. Many years later he apparently realised that tax should have been paid on the proceeds of sale of that business. After separation, he caused his accountant to submit an amended tax return for the relevant year and he was assessed at owing an additional amount of tax of around $50,000.
Soon after the husband sold his business, the husband and wife purchased a residential property in Suburb N with a view to undertaking a development on it. It was registered in the husband’s sole name when purchased. It was bought for $672,000. Stamp duty and other costs of acquisition took the total cost to around $700,000. The husband put $500,000 into the purchase, being money he had received from the sale of the Suburb G property and his business. His parents also advanced him $200,000 to put towards the cost of purchasing that property. That fact is not in dispute. The husband and his parents say that it was loaned to him, to be repaid on when the development was complete and the properties sold.
The wife says that it was not a loan required to be repaid. In support of her case, she says the husband told her that his parents had “given” it to him. She says that, similarly, they gave money to the husband’s sister at around the same time. She says she knows this as a cheque for $100,000 to the husband’s sister was mailed to the husband and wife mistakenly by the husband’s parents. I shall return to this disputed issue later.
In October 2001, the wife again refinanced the mortgage liability in respect of the Suburb J property, this time borrowing $163,000 to discharge the existing debt and to have some more funds available to pay for some more renovations. She also oversaw the bulk of the renovations that were carried out on the Suburb J property.
In 2002, the husband obtained part-time employment at a TAFE college where he worked until 2004. He also then began studying towards a doctorate. The fees for that course were in the order of $45,000. Again, those were paid for by the husband.
The husband and the wife then worked on obtaining approval to subdivide and develop two new houses on the Suburb N property.
In March 2003, the Suburb J property was sold for $905,000. Loans from the wife’s parents and the husband’s parents of around $30,000 from each set of parents were repaid from the sale proceeds. The wife invested all of the net proceeds of sale with the Macquarie Bank and after some small improvements to the existing old dwelling on the Suburb N property the husband and the wife and the wife’s daughter moved into the existing dwelling where they lived for a while. They then moved into a rental property whilst the development of the property was under way.
The wife bought a car for her daughter around this time for around $20,000.
The Suburb N property was then developed through the construction of two new dwellings on the two separate blocks. The work was done with the husband being registered as the owner-builder. The development cost in excess of $1.2 million and the necessary money was obtained from the proceeds of sale of the wife’s Suburb J property, borrowings secured by mortgages over the two properties and more money loaned by the husband’s family and the wife’s parents as it was needed. Indeed, the husband’s mother mortgaged an apartment to obtain $130,000 to loan to the husband and the wife. The wife did not disagree that this money advanced to them was a loan.
The title of the two properties was also transferred into the joint names of the husband and the wife.
Between 2004 and 2007, the wife’s daughter, Ms H, continued to live with the parties whilst attending university. She was financially and practically supported by her mother and the husband. Her then boyfriend also resided in the Suburb N property rent free during 2006 and 2007.
In 2005, the wife, who was running the couple’s internet business that was not generating much income, began studying part time towards obtaining qualifications and in 2006 the husband started working at the O University. The wife’s daughter’s boyfriend took over managing the online business during the time he lived at the Suburb N property with the family.
Construction of the duplex development in Suburb N was completed in 2007 and one of the two properties was then sold for $1,577,700. The family lived in the house on the remaining property. The sale of the first property settled in December that year and the wife, who generally managed the finances in the family, caused the proceeds of sale to be used to discharge the mortgage liability, some smaller liabilities and also to repay $141,000 to the husband’s parents. That was repayment of the money the husband’s parents had borrowed against the security of an apartment they owned, plus some extra money to repay them for the interest they incurred on those borrowings. The wife invested the remaining balance in various bank accounts.
In January 2008, the husband obtained a full-time position at the O University. Shortly thereafter, the family went on a holiday to Country I, something they had been doing regularly, on almost an annual basis throughout their marriage.
The evidence of the husband and the husband’s mother is that around this time, after the sale of the first of the two Suburb N properties, the husband’s mother made a number of requests for repayment of all the money that they said was owed to the husband’s parents. Indeed, there are copies of emails in evidence from the husband’s mother to the husband from around that time that reflect requests for repayment. Even whilst the husband and wife were on holidays in Country I in February 2008, the husband’s mother emailed the husband requesting that she and her husband be repaid all that they were owed.
The wife acknowledges the emails and the requests but says that this was action being undertaken by the husband’s mother pursuant to an arrangement between her and the husband to create the illusion that the money advanced back in August 2001, was a loan rather than a gift. The wife argues that this was set up by the husband and his mother at a time when the husband was engaged in an extra-marital relationship with a work colleague and he was conscious of the likelihood of the marriage ending in the near future. In support of that position, the wife said that their time in Country I together was not very enjoyable and that her husband was distant and quiet.
On their return from Country I, the wife signed a cheque for $40,000 payable to the husband’s brother to repay him the money he had loaned the husband and wife during the development of the property. However, she posted that cheque to the husband’s mother, perhaps by mistake.
Sometime over the next few days after that, the wife says, the husband told her that they still owed his parents a further $300,000 and that they needed to repay it. She says she asked him to find out more detail about that amount said to be owed.
On Sunday, 2 March 2008, the husband and wife were at the husband’s office at the university. The wife says that she was given access to the husband’s emails by the husband for some reason and that she saw an email that made her believe he might be involved in an extra-marital relationship. She did not say anything to him about it right at that time.

Later the same day, at the husband’s request, the wife wrote out a cheque payable to the husband’s parents for the precise sum of $202,083 and signed it. That is the amount the husband told her had been agreed between him and his parents as the amount that he and the wife still owed his parents. After the husband and the wife left the husband’s office, they drove to the husband’s parents’ home and he took the cheque inside and gave it to his parents. It is agreed that the wife stayed in the car outside the home. There is dispute between the husband and the wife about the precise details and timing of the conversations that day, but it is not in dispute that at some time that day, the wife asked the husband whether he was having an “affair” and he conceded to her that he was. I am satisfied that was asked either not long before arrival at the husband’s parents’ home or after they had visited there and were either on their way home or at their home already. It is accepted though by both the husband and the wife that after the husband admitted to the wife that he was having an “affair” the wife immediately asked him to leave the family home.
Although the fact that the wife remained in the car outside the husband’s parents’ place when they took the cheque there to pay them certainly suggests the wife was so angry and upset that she did not wish to go inside, I am inclined to the view that it is probable that the wife did not actually ask the husband whether he was having an affair until they were driving home or had arrived at home after being at his parents’ place. I suspect she might have left him and driven off whilst he was inside at his parents’ home had they already had the conversation in which he made the admission to her before then. The actual timing of the conversation and the admission does not matter much though, in my judgment.
A couple of hours after they had been home on the evening of Sunday 2 March 2008, the husband complied with the wife’s request to leave their home and returned to stay at his parents’ home. That was the date of their separation. Accordingly, I am satisfied that they lived together as a couple for a few months short of eleven years.
The next day, Monday 3 March 2008, the wife contacted the bank which held the account on which the cheques had been drawn and cancelled the cheque that had been given to the husband’s parents the evening before. The wife then unilaterally withdrew $346,311 from the couple’s joint bank account and deposited it into accounts in her own name that the husband could not access. She also withdrew another $3,400 from an account in the husband’s sole name that she had internet password access to. The wife did not cancel the cheque that had been sent to the husband’s brother for $40,000, but by withdrawing all the funds from the joint bank account she was ensuring that there were insufficient funds in that account to meet that cheque on presentation.
A few days later, on request, the wife drew another cheque for $40,000 for the husband’s brother but she refused the husband’s mother’s request to draw another cheque payable to her and her husband for the amount of $202,083.
The breakdown of the marriage clearly distressed the wife considerably. She became quite hostile to the husband, although over a period of time after the separation, she did invite the husband to come back and stay in the home with a view to attempt reconciliation, which he declined.
A few weeks after their separation, the husband and wife met and agreed that the wife needed $1,500 per fortnight for her financial support. The husband paid the wife equal to eight weeks’ payments of that amount before he told her to simply draw the money out of the large amount of joint capital she had retained. The wife disagreed with the husband’s assertion that he had paid her this much but during cross-examination of the wife during the first part of the trial in 2012, counsel for the husband showed the wife a copy of her bank statement from March/April 2008 that showed the deposits of that much money into her account sourced from the husband. I am satisfied he paid the sum of $6,100 to her at that time from his income.
The wife discontinued her studies as a result of her distress in the aftermath of the separation. Nevertheless, at the same time, she set about causing some more relatively minor improvements to be made to the Suburb N property and, apparently on the husband’s insistence, started trying to sell it.
The wife withdrew more funds from a bank account of the company that had owned the husband’s business, through which she had charged for the freelance work she had been doing pre-separation. It was $30,589.89. Approximately $8,000 was also withdrawn from that account and used to buy a vehicle for the wife’s daughter’s boyfriend who was running the online business at the time. Furthermore, sometime around separation, at the wife’s request, the husband agreed to simply let Ms H’s former boyfriend take it over as his own business.
In April 2008, the wife repaid her parents $44,520, being the money the husband and wife had borrowed from them pre-separation.
In or around June/July of 2008, the husband’s parents sent the wife a letter of demand, asserting that she and the husband actually owed them a total of $253,769.27, an amount that was substantially more than the amount they had agreed to accept in March that year.
Apparently unhappy with the progress he and the wife were making to finalise their financial affairs, the husband commenced proceedings in this Court later in that same year and in December 2008 the wife filed a Financial Statement in which she said there was only $66,000 left of the $346,000 she had withdrawn from their joint account in March that year.
In March 2009, the wife recommenced her university studies on a full-time basis.
In June 2009, more than a year after separation, the wife accessed a bank account of the husband through internet banking and transferred $3,962.76 to one of her own accounts without the husband’s knowledge or consent. She also gained access to his Qantas Frequent Flyers site and unilaterally transferred many of the points standing to his credit to her own account without his knowledge or consent. It is not disputed that she falsely represented herself to Qantas to be his de facto marital partner at the time in order to achieve that.
In late 2009, the husband lodged his amended tax return for the 2001 financial year and as a consequence, as I have already observed, was assessed as owing a further $50,000 in tax. Fortunately, his accountant was able to persuade the ATO not to levy interest or penalties. However, the husband did not have the money to pay the amount assessed as owing by the ATO and had to borrow the amount from his parents. His mother advanced him a further $52,634 at that time to meet that liability and associated costs.
The second Suburb N property was finally sold in late 2009 for the amount of $1,515,000 and all of the net sale proceeds were preserved by agreement between the husband and the wife pending the resolution of the property adjustment proceedings. The wife had lived in the property from separation in March 2008 until the settlement of the sale in late 2009. In December that year, the hearing of the proceedings was adjourned as all the parties agreed the trial would take longer than initially anticipated. At that time, the husband and the wife agreed that each would receive the sum of $200,000 from the preserved funds and for those payments to be treated as partial property settlement received by each of them. The balance of $1,078,591 was deposited into a controlled deposit pending finalisation of the proceedings.
In January 2010, the wife was able to complete all of the requirements of her university course and was able to graduate with a degree.. She then enrolled in a diploma course at another university in Sydney. Also in January 2010, the husband and wife obtained dissolution of their marriage.
In April 2010, the wife began working for two days each week earning $400 per week.
After JR Loughnan’s judgment had been delivered and the wife’s application to review it had been filed, the husband, the wife and the husband’s parents (who had by then intervened) all agreed to a stay of the orders and for further distributions of funds from the controlled account. It was agreed that the husband’s parents would be paid $276,622. It was agreed that the wife would be paid $276,622 and that the husband would be paid $331,745.67. It was agreed that the remaining $200,000 be kept in the controlled account pending further order.
There was a great deal of difficulty and hostility between the husband and the wife during the years leading up to the trial before JR Loughnan and afterwards. The wife made complaints to the husband’s employers about him and wrote some inappropriate emails to his former work colleagues. In the aftermath of the separation, the wife also hired private investigators to follow and monitor the husband, trying to locate where he was living, she said.
The husband brought proceedings against the wife in the Local Court seeking an Apprehended Violence Order against her. He obtained interim orders but ultimately withdrew the application before final orders were made.
In 2011 the husband was elected to public office and remains in this position.
In the middle of 2011, the husband used some of the money he had obtained from the parties’ capital pursuant to their agreements in 2010 to purchase a home. He has been living there ever since.
In October 2012, by agreement, the wife was paid a further sum of $8,160 from the controlled account to be treated as partial property settlement already received by her.

The Tribunal Proceedings against the Husband and the Wife

At around that same time, the Tribunal proceedings brought against the husband and the wife began. A total of around $400,000 damages was claimed against them. The wife made a request to be removed from the proceedings because she was not the registered owner-builder of the development. The husband was. The husband did not oppose that as he clearly wanted to be able to solely direct the defence of those proceedings in circumstances where he expected no co-operation from the wife. Ultimately, the wife was released from those proceedings. She brought an application for costs against the purchasers who had commenced the proceedings but that was dismissed as frivolous and vexatious.
The evidence establishes that the purchasers’ claims against the husband related to concerns they had about the stability of two block retaining walls constructed on the boundary between the two properties, just behind the garage and abutting the drive way of the lower of the two properties. There are two large sandstone boulders that form part of that boundary. One retaining wall was constructed just below the boulders and the other, a higher one, was constructed on top of the boulders. A post supporting a deck attached to the house on the higher of the two properties is supported on the upper retaining wall.
The purchasers became concerned when they noticed obvious cracking in the retaining walls and water seepage across the lower property’s driveway. They obtained expert reports, as did the husband. Indeed, after inspection, the Suburb P Municipal Council issued a notice requiring the retaining wall to be demolished. It became clear that the upper retaining wall, that retained the filled back yard of the upper property, and supported the post that supported the deck, had not been constructed entirely according to the plans that had been submitted to the council and approved beforehand.
It was the fact that the retaining wall had been constructed by the husband, or at least with the husband’s oversight, and not constructed entirely in accordance with the council approved plans that the wife relied upon in support of her submission to this Court that the husband should be solely responsible for all of the costs of rectification and all of the claimant purchasers’ legal costs. She submitted that it was the husband’s negligence or recklessness that caused the loss and that, consequently, he should bear that loss entirely himself.
I was not persuaded that would be the principled outcome on that issue in this case.
The evidence satisfied me that a conclave of expert engineers – one retained by the husband, one retained by the Suburb P Council and one retained by one of the claimant purchasers – agreed that it was the free-floating nature of the boulders that actually caused the problem. The boulders were not anchored properly when the walls were built and they had subsequently moved, causing the walls to crack. The experts apparently agreed that it was not the actual construction of the walls that was causing the problem that had emerged.
The evidence satisfied me that the husband had obtained engineering advice in respect of the boulders prior to building the walls and that he had followed the advice of the engineers and contracted the boulder pinning work prescribed by those engineers to another firm to be done in accordance with the engineers’ advice. It was that pinning work that was not done to the standard necessary to actually properly anchor and secure the boulders. Although not done entirely in accordance with the approved plans, the evidence established that the block retaining walls had been built soundly and that the block building work had been approved by the certified inspector after it was completed. As I have already observed, that the walls were not constructed exactly in accordance with the plans that had been approved by council was not the cause of the problem.
The conclave of experts had agreed that the block retaining walls did not need to be demolished to fix the problem. They agreed on a scope of works that required further pinning of the free-floating boulders by a number of steel rods inserted in holes drilled in the rocks, which would then be plated and bolted. The tribunal’s orders provided for the dispute to be finalised by the husband paying for the cost of the agreed rectification work. That was an amount of $79,035. The husband paid that. The rectification work was completed and the block retaining walls that had been built in the first place remained in place.
The husband’s evidence, which I accept, was that he caused the original engineers to be written to by solicitors who attributed responsibility for the problem to those engineers and demanded compensation. The engineers wrote back denying responsibility and refusing to provide compensation. The husband’s evidence was that after he was advised that he would have to bring proceedings against those engineers in the Supreme Court if he wished to pursue further redress from them, he considered the risks and costs of such litigation and he made a commercial decision not to take such action. I accept that evidence.
The husband’s evidence was that he also negotiated a settlement with one of the claimants, on commercial grounds, to pay her $18,000 on account of her costs of the Tribunal proceedings. The evidence is that the other claimant pressed an application for the husband to pay her costs of the Tribunal proceedings and sought payment of $92,244.79 in costs. That was opposed by the husband and in February 2015 the Tribunal determined that the husband pay that claimant’s costs from 26 May 2013 up to and including the 13^th September 2013 as agreed or assessed. The husband then received a letter from that claimant’s solicitors claiming $18,891.80 for her costs pursuant to the Tribunal’s orders. His evidence was that he caused his solicitors to send a further letter questioning the basis for some of those costs and that at the time of swearing his affidavit for the final hearing of this matter that issue remained outstanding as he had not heard back from the claimant.
In any event, it appears that at its worst for the husband, those costs would have been $18,891.80.
The husband gave detailed, itemised evidence that the total amount of money paid out (or to be paid once the $18,891.80 is included) by him for the rectification work, his own legal costs and the legal costs of the claimants as a result of the Tribunal proceedings brought against him by the two purchasers is $237,135.28. The wife did not challenge this at all, other than to maintain her argument that this is a loss the husband should have to bear himself. Accordingly, I accept the amount paid or payable by the husband to be that sum as particularised by him, $237,135.28.

Further Borrowings from the Husband’s Parents

The husband gave evidence that his parents paid the sum of $47,000 to the solicitors acting for him in the proceedings in this Court, after the first part of the trial in 2012. He said that was pursuant to an agreement between him and them that he would repay them after the matter was determined.
He gave further evidence that between August 2012 and February 2013 he paid a total of $17,030.64 in legal costs and outlays in the tribunal proceedings and that he sourced that money from the redraw facility he had secured with a mortgage over his new home.
He also gave evidence that in early 2013 he then borrowed a further $25,000 from his parents to help him meet the legal costs and outlays he had incurred in the tribunal proceedings. Then in December 2013, he borrowed a further sum of $100,000 from his parents to meet the costs of the rectification work determined by the Tribunal to be required and used that for that purpose. In December 2014, he borrowed another $200,000 from his parents to assist in completing his involvement in the Tribunal proceedings and to pay for his legal costs and outlays in the proceedings in this Court. I accept that evidence.

The Husband’s Financial Circumstances

The husband deposed (in October 2015) to receiving a gross annual salary of $166,355. He said that his superannuation interest with C Super had been worth $111,832 at the time of his separation from the wife in March 2008 but that it was worth $462,389 in October 2015. He deposed to having salary sacrificed to that superannuation fund after separation prior to his election to public office. He also said that he was a member of the X Super Fund since his election and he adduced evidence of his interest in that fund being worth $71,215.59 at 30 June 2015.

The Wife’s Financial Circumstances

In her September 2015 affidavit, the wife said that she was working on a casual basis and was unable to secure a full-time position. She deposed to earning $235 per week from that work and also being in receipt of a small amount of Commonwealth Government income support. She deposed to living in rental accommodation with her daughter in the eastern suburbs of Sydney.
The wife deposed in her February 2016 Financial Statement to having credit card debts of $11,684 and $15,343, a debt to her brother of $112,660 and a debt to her parents of $17,486. She said she also owed a friend $70,000. She attributed these debts to money they had loaned her to help meet her ongoing rental expenses and her “ongoing” legal fees. The wife said she still owed lawyers who represented her in the proceedings in this Court $28,159 as well. She also owed $21,897 in HECS debt.

The Determination of Property Adjustment Proceedings

The property interests of parties to a marriage may be altered by the Court making such order as it considers appropriate.[1] The Court cannot make such an order though, unless it is satisfied, in all of the circumstances, that it is just and equitable to make the order.[2] The consideration of whether it is just and equitable to make a property settlement order must begin by identifying, “according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.[3] Legal principle is to be followed and applied when exercising the discretion conferred by s 79,[4] and care must be taken not to conflate the s 79(2) question of whether it is just and equitable to make property settlement orders at all with the separate s 79(4) question as to the particular orders to be made if any are to be made.[5]
[1] Family Law Act 1975 (Cth) s 79(1)
[2] Ibid s 79(2)
[3] Stanford v Stanford (2012) 293 ALR 70 at [37]
[4] Ibid at [38]-[39]
[5] Ibid at [40]

However, in this case, both parties ask for property adjustment orders, albeit different ones. In such circumstances, in my view, the Court can generally accept without further enquiry that it is just and equitable for some property adjustment orders to be made.
The often used four step approach to determining the property adjustment orders to make involves firstly, making findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing; secondly, identifying and assessing the contributions of the parties within the meaning of subsections (a), (b) and (c) of s 79(4) and determining the contributions based entitlements of the parties expressed as a percentage of the net value of the property of the parties; thirdly, identifying and assessing the relevant matters referred to in subsections (d), (e), (f) and (g) of s 79(4) - including, because of s 79(4)(e), the matters that are relevant pursuant to s 75(2) - and determining the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step 2; and fourthly, considering the effect of those findings and determinations and resolving what order is just and equitable in all the circumstances.
In exercising its property adjustment powers the Court may, amongst many things, order payment by one party to the other of a lump sum of money, order that payment of any sum ordered to be paid be wholly or partly secured, make a permanent order or an order pending the disposal of proceedings, impose terms and conditions, make orders by consent or make any other order which it thinks it is necessary to make to do justice.[6] The Court may also make superannuation splitting orders.[7]
[6] Family Law Act 1975 (Cth) s 80(1)
[7] Family Law Act 1975 (Cth) s 90MS and s 90MT

What is the Property to be adjusted in this Case?

At the time the trial concluded last year, the husband had equity in the real property that he had purchased post-separation of about $735,143 after taking into account the property’s value and mortgage debt secured over it. He had another liability of $44,158 in respect to the financing of the acquisition of his car. He had approximately $10,000 in the bank, a very small parcel of shares in a listed company worth $241, a motor car worth $34,000, household contents worth $5,000, his two superannuation interests that had been given values of $462,389 and $71,215. He also had an interest in the $200,000 that had remained invested in the controlled monies account in 2010, in addition to the interest that had accumulated on that. At the time of the conclusion of the trial in 2016 that was about $17,000 of interest. He was also indebted to his parents for $372,000.
At that same time, the wife only had household contents worth $5,000 and superannuation valued at $8,278. She owed the Australian Government $21,897 for her HECS debt. She also had credit card liabilities totalling around $27,000, outstanding legal fees of $28,159 and said she owed members of her family and another friend a total of about $200,000 that had been borrowed from them in the years since separation. She also had an interest in the $217,000 that was in the controlled monies account.

Can money already spent be considered as part of the property to be adjusted?

There is no dispute that the parties have each already received lump sums of money that they agreed to characterise as “partial property adjustment” in the final determination of this matter. The husband has already received payments of $331,745 and $200,000 that were, by consent order, characterised as such. The wife already received payments of $200,000, $276,622 and $8,160 that were also characterised that way pursuant to consent orders.
As events have transpired since then, each of the husband and the wife has already spent all of that money they received, some on legal fees, some on the purchase of new property, some on an election campaign, and some on getting on with life.
Although it has been authoritatively determined that notionally adding amounts of money to a “pool” of property that is being considered in the overall process of determining property adjustment orders that are appropriate as well as just and equitable is to be the exception rather than the rule, I am satisfied that it is nevertheless just and equitable and entirely consistent with principle to notionally include these sums of money the husband and wife previously received pursuant to orders that were made with their consent in a “pool” of property interests being considered, even though the money has already been spent.[8]
[8]See Farnell & Farnell [1995] FamCA 140; DJM & JLM [1998] FamCA 97; Chorn v Hopkins 920040 FLC 93-204; Omacini & Omacini (2005) FLC 93-218;
Furthermore, at the first part of the trial before me in 2012, the wife conceded and agreed that $11,744 being interest that had been earned on the money she withdrew from the husband and wife’s joint funds on 3 March 2008 and retained by her should also be considered as part of her entitlement to property already received. As I understood her, she also conceded and agreed that the $3,963 she had withdrawn from the husband’s personal bank account in 2009 without his consent should be considered the same way.
Although unrepresented at the time she made those concessions, I am satisfied that the wife knew the import and effect of such concessions. In any event, those concessions were entirely reasonable in the circumstances, given that the husband agreed that a large amount of the money the wife withdrew from their joint funds at separation and retained for her own purposes could be treated as “spousal maintenance” or money spent by her on her own reasonable needs. That was an amount of in excess of $60,000.
These amounts that were agreed to be treated as partial property adjustment entitlement already received, summarised in tabular form are as follows:

Husband

Wife

$331,745

$200,000

$200,000

$276,622

$8,160

$11,744

$3,963

$531,745

$500,489

TOTAL $1,032,234

Counsel for the husband also argued at both parts of the trial that a large amount of the $346,242 withdrawn from the joint funds of the husband and wife by the wife on separation and spent by her over the following months should also be considered as property adjustment entitlement already received by her and notionally included with these other amounts in the “pool” of property interests. However, he conceded that notional amount should not include the $40,000 that the wife repaid to the husband’s brother from that money. He also conceded that should not include $44,520 that the wife repaid to her parents from that money. He also conceded that should not include $6,000 that she used to pay credit card liabilities incurred by the parties before their separation. He also conceded that it should not include $13,500 that the wife spent on further landscaping costs in respect of the developed property after separation. Those were proper concessions, in my judgment.
As I have already observed, counsel for the husband also conceded that it would be reasonable to allow a sum of $61,400 in consideration of the agreement the husband and wife reached shortly after separation that the wife would need $1,500 per fortnight for her own personal expenditure requirements. That conceded amount covered the period from separation to the end of 2009, allowing for the money the husband did transfer to the wife from his own earnings just after separation.
Counsel for the husband also conceded that it would be appropriate not to include an amount of $21,490 that the wife spent on purchasing a car for herself in that post-separation period, particularly if the car was going to be taken into account in the determination of the property adjustment. At the time of the first part of the trial in 2012, the wife’s car was said to be worth $18,000. That left an amount of $159,332 of the funds that the wife had spent by the time the matter went to trial that counsel for the husband submitted should be treated as partial property adjustment already received by her because the expenditure of that amount went beyond what could be considered as reasonable.
The wife argued that there should be no amount notionally included in or added back to the “pool” in respect of her expenditure of that money.
In my judgment, determining this issue requires a consideration of the nature of the expenditure and a determination as to whether or not that expenditure can be regarded as reasonable in the circumstances such that justice and equity does not require its notional inclusion.
In evidence on the issue was a schedule (attachment F to the wife’s affidavit filed 28 August 2009), a table set out in paragraph 6 of an affidavit of the wife filed 8 December 2009 and the attached documents and the transcript of her cross-examination on the matters included in that schedule undertaken by counsel for the husband in the trial conducted by Loughnan JR in 2010 (exhibit 2 in the trial before me).
The wife asserted $4,500 had been paid to a mechanic in cash prior to separation for work done to equipment owned by the online business. The document provided by her in support of assertion was an invoice issued in late May 2008 for an amount of $4,621 for work done to a 4WD. I do not accept the wife was telling the truth when she asserted that it was money paid before separation. I am satisfied it was paid in May 2008, after separation and after the business had been given to the young man who was the wife’s daughter’s boyfriend and for whom the wife had previously also bought the vehicle using funds from a company bank account. I do not consider it is was reasonable for the wife just to unilaterally gift that much expenditure from the parties’ joint funds to her daughter’s boyfriend and expect the husband to have to share in the burden of that. I will notionally add $4,621 for this expenditure.
The wife said she spent $7,916 on garden maintenance and improvement from March to November 2008. I accept that and consider it as part of the $13,500 conceded by the husband in respect of that expenditure.
The wife claimed $13,000 was spent on trips to Country I, including the family holiday in February 2008 prior to separation (credit card paid after separation), another trip in July 2008 and another trip in January 2009. The husband conceded that $6,000 of this was for the expenses related to the trip prior to separation. I do not consider it reasonable for the wife to expect the husband to share in the cost of two other trips to Country I within the year after separation. I accept that at least $7,000 was spent by the wife on those trips. I will notionally add $7,000 for this expenditure.
The wife claims $13,500 was paid to a web page design business for work on the website. An invoice for only $13,000 is adduced into evidence and it is dated 18 May 2008, after the business was given away to the wife’s daughter’s boyfriend. I do not consider it reasonable for the wife to expect the husband to share in that cost without any evidence of ever getting his approval for that expenditure when the business had already been given away. I will notionally add $13,000 for this expenditure.
The wife claims to have spent $1,200 on a new laptop computer in March 2009 and $2,450 on the purchase of a new desktop computer and printer in May 2008. This was money spent after separation without evidence of approval by the husband. However, as these items were retained by the wife and included in the value of personal possessions that will go into the pool, I will not include these as notional ‘add backs’.
The wife claimed she spent $2,780 on electrical installation and internet cable installation in the house, $1,075 on some improvements to the house and $5,900 for the purchase of soft furnishings. I accept that and will not notionally include any of these amounts as the improvements were to the property subsequently sold.
The wife claimed she spent $6,593 on white goods and she claimed that they were sold with the house. She did not produce any receipts. Her evidence about how she knew the precise amount she had paid was confusing and inconsistent. I do not accept it as truthful and will notionally include this amount of $6,593 as not reasonably explained.
The wife claimed she spent $4,835 on the installation of cupboards in the house. She did not have receipts but did adduce photographs of the cupboards in the house. I accept that and will not notionally include any of these amounts as the improvements were to the property that was subsequently sold.
The wife claimed to have paid $5,000 to the builders who had built the house. She asserted it was paid in cash and had been withheld until after separation until some repairs to defective work had been carried out. She asserted that the builder would not give her a receipt when she asked for one. I do not accept her honesty on this one. I will notionally include this amount of $5,000 as not reasonably explained.
The wife claimed $3,500 spent on landscaping. I will consider that as a further amount of the $13,500 conceded by the husband as being spent on the improvement of the property for sale.
The wife claimed $7,900 spent on some more construction work around the rear deck. It is supported by a receipt from March 2008. I consider that a reasonable expense to be paid from joint funds.
The wife claimed $597 as fees paid to solicitors in respect of the sale of the property. She also claimed $100 spent on obtaining a certificate from the Council. I consider those reasonable expenses to be paid from joint funds.
The wife claimed she spent $12,000 on legal fees in connection with the proceedings in this Court. I consider it appropriate to notionally include those in the “pool”.
The wife claimed she loaned $2,000 to the daughter’s boyfriend in May 2008. I do not consider that a reasonable expense to try to have the husband share. I will notionally add it back into the “pool”.
The wife claimed $3,300 was spent on accounting services in June 2008. She was not questioned about that, so I will regard it as a reasonable expense for her to have met from joint funds. The same can be said for the amount of $2,774 she claimed was spent on advertising the house for sale.
The wife claimed $2,000 was spent on travelling to Brisbane for some training at a volunteer, not-for-profit organisation. Apart from there being a lack of evidence supporting that full amount claimed, I do not consider it reasonable to have paid for such expenses from joint funds post-separation without any evidence that the husband agreed to it. I will notionally include $2,000 in the “pool” for this expenditure.
The wife claimed that she spent $4,000 for her daughter to go to Q Town in the summer of 2008/2009 to do an academic subject. I do not consider it reasonable for the wife to expect the husband to share in this cost nearly a year after separation. I will notionally include $4,000 in the “pool” for this expenditure.
The wife claimed $10,500 for money spent on supporting her daughter during her university studies post-separation. I do not consider it reasonable for the wife to expect the husband to share in this cost. I will notionally include $10,500 in the “pool” for this expenditure.
The wife claimed $4,000 spent on paintings for display in the home whilst being sold. She exhibited a receipt for $3,950. I accept this and as she would have retained the painting, I will not include it as a notional add back as it will be included in the value of household contents she retained.
The wife claimed $6,000 was spent on a bed. She has exhibited receipts showing $4,624 was paid for a bed but that was in February 2008, prior to separation. I will notionally add $6,000 in to the “pool” as unexplained expenditure.
The wife claimed $3,000 was spent on furniture and manchester for another one of the bedrooms at the house. No receipts are exhibited but photographs of the bed and other furniture are. I accept the purchases and the expenditure and will not notionally add it back.
The wife claimed $5,000 was spent on new clothes after separation. Given that over $60,000 has been allowed for her maintenance needs for 2008 and 2009, I do not consider it reasonable to expect the husband to have to share in the cost of extra clothing purchased outside what might have been able to be purchased with that $60,000. I will notionally add back the amount of $5,000.
The wife claimed $5,000 was spent on a party at Christmas time 2008 for her belated 50^th birthday celebration and her daughter’s 21^st birthday. I do not consider it reasonable to expect that to be paid for from joint funds. I will notionally add back the amount of $5,000 said to have been spent.
The wife claimed $5,000 was spent on a round-the-world trip she took with a friend of hers in the summer of 2008/2009. I do not consider it reasonable to expect that to be paid for from joint funds. I will notionally add back the amount of $5,000 spent.
The wife claimed $1,000 was spent on gym membership. I do not consider it reasonable to expect that to be paid from joint funds when there has been an allowance for $750 per week for reasonable needs. I will notionally add back the $1,000 spent.
The wife claimed a further $2,500 was spent on fencing to enclose the parties’ dogs in April 2008. She also claimed a further $1,260 was spent on garden maintenance and improvement from November 2008 until August 2009. I accept these expenditure items as reasonably paid from the joint expenses. Those total $3,760 and this takes the amount almost $1,760 beyond the $13,500 conceded by the husband. Nevertheless, I will allow the wife to reasonably claim it as joint expenditure.
The wife also claims the amount of $20,000 as money spent on credit cards over two years post-separation. I do not consider this to be reasonably spent from joint funds. Again, I refer to the $750 per week that has been allowed for the wife’s reasonable needs when she was living without having to pay rent in the house. Also, I note her evidence that she would often pay for the costs of meals out with friends on credit cards and take and retain cash paid by her friends for their meals. I will notionally add back the amount of $20,000 claimed.
Accordingly, I will notionally add the amount of $93,214 to the “pool” of property and treat it has having been received by the wife already as part of her property entitlement although she has already spent it. In my judgment, this is a just and equitable way of dealing with this. This also means that an amount of in excess of $60,000 that was spent by the wife is not added back because it was legitimately spent out of joint funds or otherwise also treated as reasonable expenditure by the wife simply getting on with her life.
I am also satisfied on the evidence that after separation the wife also withdrew a total of $38,915 from the accounts of the company that the parties used to run the online business before separation. As I have already observed, the wife paid $8,500 for her daughter’s boyfriend to buy a motor vehicle that he could use in running the business that was gifted to him when the parties separated. What was done with the balance is unexplained, however, the husband does concede that $20,000 was paid into that account for work the wife did. Accordingly, counsel for the husband submitted that only a further amount of $18,915 should be notionally added back to the “pool” as partial property entitlement already received by the wife. In the circumstances, I do also consider that a reasonable submission and will notionally add only that amount back in. Its expenditure has not been reasonably explained.
I will also include in the pool two amounts of $5,000. Each of the husband and the wife asserted the household contents they respectively owned at the time of the second part of the trial last year were worth $5,000. I bear in mind that the wife said she owned $10,000 worth of household contents at the time of the first part of the trial in 2012 and that most of those items would have been retained by her from joint property owned at separation or were purchased by her after separation from the parties’ joint funds. On the other hand, the husband said he had $2,000 worth in 2012 and that was not challenged at all by the wife. Accordingly, it is likely he purchased more things with post-separation earnings.

The Balance of the “Pool”

Although the property of the parties in a property adjustment case is generally regarded to be that in which the parties have an interest at the time of the trial, which is when what is sometimes referred to as the relevant “snap shot” in time is taken, such a general approach must be able to be departed from if such departure is necessary in order to arrive at orders that are just and equitable in all the circumstances.
In this case, I do not consider it just and equitable to include the equity the husband has in the property he purchased over three years after separation with the funds that he obtained from the partial property adjustment that are already being included in the “pool”. The wife had no part in his decision to use that partial property distribution to purchase a house. In that sense, it could not reasonably be said that she has directly or indirectly contributed to its acquisition. I will not include it in the pool.
For similar reasons, I will not include the husband’s car or the cash in the bank that he had at the time of the conclusion of the trial. I will not include the small parcel of shares. I will not take off the liabilities that he had in respect of the financing of his car or the liability he has to his parents for all of the money advanced to him by them in connection with the Tribunal proceedings and the payment of his legal costs in these proceedings.
I will consider the superannuation interests of the parties as at the time of the conclusion of the trial, but, in accordance with authority,[9] I will consider them and the contributions that relate to them on a fund by fund basis and not by putting them into the same “pool” as the other “property” including that “property” that is in the form of the amounts notionally added in.
[9]Coghlan and Coghlan (2004) 33 Fam LR 414
In February 2016, the evidence was that the husband’s interest in his C Super fund was worth $462,389. It had been valued at $111,832 at separation and $226,333 at the time of the first part of the trial in 2012 after he had made salary sacrifice contributions to it before he was elected. At the time of the 2016 trial, the husband’s superannuation interest was valued at $71,215, all accumulated after his election, well after separation.
At the time of the 2016 trial, the wife no longer had her R Super interest but had an interest in S Super valued at $8,278, all accumulated post-separation.
Save for the HECS debt of $21,897 (at the time of the 2016 trial) of the wife, I will not be including any other liabilities of the wife in the calculation of the “pool” as I am satisfied that all of them have been incurred post-separation and are not ones that justice and equity require should be borne by both the husband and the wife. As it is, a large portion of the HECS fees owed by the wife are attributable to post-separation study. I will take that into account when assessing contributions of the parties.
Taking the HECS debt off $1,147,276 leaves a net amount of $1,125,379.44 to consider for adjustment.

Contributions Consideration

The husband brought property of higher value than the wife into the marriage. As I have found, his was worth $315,000 and the wife’s was worth between $238,000 and $248,000.
The former couple lived together for just under eleven years. With one exception that I will come to shortly, I accept that their contributions across all facets of the marriage during that time were equal. They each contributed to the best of their capacities. Of that, I have no doubt. Neither of them really made out a cogent case to the contrary.
Additionally, the husband contributed to the support of the wife’s daughter of her first marriage when, at law, he had no duty to do so. The wife received no financial support from the child’s father during their marriage and the child was educated at relatively expensive private schools and was financially and practically supported by both the wife and the husband during the eleven years of cohabitation. The wife did, I accept, get some additional assistance from her parents in this respect but I reject her assertions that it was to the significant extent that she maintained. The husband’s contributions in this respect must be given weight in the assessment process that is not matched by the wife’s contributions to the support of her own child.
I do also acknowledge that the husband’s parents did contribute significant amounts of time to the online business whilst the husband operated it, without being reasonably remunerated in return. I also acknowledge that they advanced the husband large amounts of money during the marriage that were repayable but without interest (save for the $130,000 on which the husband and wife paid the interest that the husband’s mother had incurred herself on borrowing most of that from a bank). These are contributions all made on the husband’s behalf.
I acknowledge that the wife’s parents did some unremunerated work in the husband’s business, though not as much as the husband’s parents. They also advanced funds to the husband and wife that were used to pay for renovations to the Suburb J property and in connection with the Suburb N development. Those loans also were repaid without interest. They were much smaller than the amounts advanced by the husband’s parents and they were repaid sooner than all the money owed to the husband’s parents was repaid. The wife’s parents and her family friends also did work on renovating the Suburb J property, some without payment, and others at reduced rates of payment. These are contributions all made on the wife’s behalf. Overall, I do not assess them to be as great as the totality of the contributions made on the husband’s behalf by the husband’s parents.
Post-separation, the wife was able to live in the Suburb N property for nearly two years without paying mortgage repayments or rent. At the same time she did ensure the place was maintained, improved as necessary and presented for sale. The husband had to find alternative accommodation and he contributed to the wife’s support by paying her $6,100 from his salary in the early weeks after their separation and through her use of in excess of $61,000 of their joint capital in the few years immediately following the separation. There was also other money that the wife used from their joint capital that she unilaterally withdrew that I have not added back in to the ‘pool’ for various reasons. I also consider that to be a matter to take into account as additional contribution by the husband. In addition, the wife also had the benefit of over $20,000 in superannuation that she had at the time of separation, the proceeds of sale of a motor car that had been valued at $18,000 at the 2012 trial, and inclusion of the HECS debt of $21,897 in the calculation of the net pool. These are all further contributions on the part of the husband towards the wife’s wellbeing in the post-separation period.
I am well satisfied that the husband’s contributions relative to the ‘pool’ of property being considered, exceeded the wife’s during the post-separation period.
Overall, I would consider these disparate contributions between the husband and the wife at the commencement of their relationship, during their cohabitation and after their separation to be appropriately reflected on a percentage basis as to 62.5 per cent to the husband and as to 37.5 per cent to the wife.

The consideration of the matters to be considered pursuant to s 79(4)(e) of the Family Law Act, including the matters set out in s 75(2)

As already noted, the husband has an income of $166,355 per annum and a significant equity in a real property purchased post-separation. He is in a new relationship of cohabitation which must produce some financial benefit to him such as comes with the sharing of certain expenses with a live-in partner. He has a residual earning capacity beyond his political career developed through his career established before his election to public office. The wife contributed to the development by him of that earning capacity by supporting him through his further studies and indirectly contributing to the payment of the tuition fees that he paid at that time.
The husband has substantial debts to his parents of nearly $400,000.
In contrast, whilst the wife has qualifications completed post-separation, in addition to her earlier qualifications and experience that she brought into the marriage with the husband, the reality is that her emotional and psychological state since the separation from the husband has impacted heavily on her working and earning capacity. At the time of the 2016 concluding part of the trial, she was only earning a few hundred dollars per week. I do consider that her circumstances will continue to improve though, particularly once these Court proceedings are concluded and are finally behind her. Her treating psychiatrist, Dr T, supported this view.
At the time of the 2016 trial, the wife was also sharing rental accommodation with her adult daughter and getting some financial benefit that comes with the sharing of expenses in such circumstances. Of course though, it is unlikely that will last for long into the future.
The wife also has substantial debts to her parents, brother and a friend and she has no property.
I consider it appropriate not to take into account the parties’ respective superannuation interests at this point as I will be considering those separately and distinctly to the “pool” that I am currently relating these considerations to.
On the net “pool” of $1,125,379, I consider an adjustment of 15 per cent in favour of the wife to be just and equitable having regard to these matters that I have just discussed. In dollar terms, that equals almost $169,000. Having regard to that, I still consider 15 per cent an appropriate adjustment.
Such an adjustment from the 62.5/37.5 notional division arrived at after the consideration of the parties’ contributions results in a 47.5/52.5 division as between the husband and the wife. Applied to the net figure of $1,125,379, that division results in the wife being entitled to $590,824 and the husband being entitled to $534,555.
Having regard to the fact that the husband bears the debt of $237,153.28, he must be credited with having net property of only $299,591.72. That would see him entitled to receive a further $234,963.28.
Once the Intervenors repay the amount that I will order them to repay to the controlled monies account that account will hold a total of $230,066.72 plus any interest that has accrued on the money that has been in that account since the trial concluded in February, last year. It is, I consider, appropriate therefore for all of that money plus $4,896.56 of the interest to be paid to the husband and for the balance of the interest to be divided as between the wife and the husband as to 52.5 per cent to the wife and as to 47.5 per cent to the husband.

The Parties’ Superannuation interests

As I have already set out, in February 2016, the evidence was that the husband’s interest in his C Super fund was worth $462,389. It had been valued at $111,832 at separation and $226,333 at the time of the first part of the trial in 2012 after he had been contributing by salary sacrifice to it before he was elected to public office. At the time of the 2016 trial, the husband’s superannuation interest was valued at $71,215, all accumulated after his election, well after separation.
At the time of the 2016 trial, the wife no longer had her R Super interest but had an interest in S Super valued at $8,278, all accumulated post-separation.
Turning firstly to the wife’s interest in the S Super fund, having all been accumulated post-separation by the wife, I consider that the husband contributions to it are so minimal that there is no reason to consider it for adjustment at all and the wife shall retain it all.
As to the husband’s C Super and X Superannuation interests I will consider them jointly in one pool. I consider that the wife’s contributions during the former couple’s marriage would be reflected in a notional equal division of the value of the husband’s interest in the C Super fund at separation. After separation though, the husband’s interest grew in value not just through investment growth of the amount that was there at separation but also through further compulsory contributions by his employer and additional salary sacrificing on his part. Since his election to public office in early 2011, his interest in the C Super fund has grown through the investment earnings in the fund. However, that much of his interest that the wife indirectly contributed to also continued to grow through its investment earnings.
Between 2011 and 2016, the husband’s interest in the X Super fund held as a consequence election to public office generated superannuation valued at $71,215. The wife’s indirect contribution to that was far less significant than her contribution to his C Super interest but I am satisfied that her indirect contributions made through the support she gave him whilst he studied during their marriage and acquired his academic qualifications, along with her support of his business endeavours, have contributed to his electoral appeal and thus have contributed to a minor degree to this superannuation interest he has also accumulated.
The total value of his two superannuation interests at the time of the 2016 concluding part of the trial was $533,604.
Doing the best I can, I would assess the contributions of the husband and the wife as against that value of the husband’s two superannuation interests at 67.5/32.5 in favour of the husband. I would then adjust that after having regard to all those matters set out in s 79(4), including the matters set out in s 75(2) of the Family Law Act, by 15 per cent to the wife, the principal factors justifying that being the relativities of their income, assets and ongoing earning capacity and the fact that the husband will, I am satisfied, continue to accumulate greater superannuation than the wife in the future.
In addition, that contributions assessment and the adjustment is being made by me as against the exact figure provided in the values given to the Court at the time of the trial last year, whilst the husband’s interests would probably have grown by investment earnings in the meantime. That is a factor within my consideration that has led me to this determination. I fix the split in favour of the wife that I assess as appropriate and just and equitable at the figure that represents 47.5 per cent of that total value of $533,604 ($253,462) rather than at 47.5 per cent of the current value, whatever that might be, and for simplicity and convenience, I will order that amount of superannuation be split from the husband’s interest in the C Super fund alone.

A little more on Credibility

I conclude these reasons with reference to some further matters of evidence that I have not yet discussed that also impacted quite heavily on the credibility of the wife, and added considerable weight to the course of determining that the wife’s evidence, where it was different to the husband’s, was generally not to be preferred.
During the first part of the trial in 2012, counsel for the husband asked the wife in cross-examination if she would “doctor” or change the content of documents to try to support her case. The wife answered that with an emphatic “no”. Counsel then referred to the document attached as exhibit A5 to an affidavit of the wife filed on 1 February 2012. It is a page of email correspondence and, as I understand it, is an email from the wife’s daughter’s boyfriend to the wife at 11.21 pm on Wednesday, 7 July 2010, forwarding a copy of an email that was sent at 4:07 pm that day by the husband’s mother to the husband via the email address that the business used.
The wife was at particular pains to assert that the document had been brought over to her in a hard copy print out form rather than actually emailed to her as the document itself evidences that it was. Yet, at the same time she was saying to counsel that she had no idea what he was talking about. As I was hearing this exchange, I considered, though not knowing what was coming, that the wife well and truly knew exactly what counsel was talking about.
Counsel took the wife’s attention to the third paragraph in the email that was from the husband’s mother to him. In the document adduced by the wife, it said:
You know [Mr Smith], if you had split the house 55:45 per cent after separation you would have got about $855,000 after you paid maintenance. So really all you have lost is the leal (sic) fees.
Counsel then produced and showed the wife another document that was later tendered as an exhibit through the husband’s mother. It became exhibit 3 in the trial before me. It was identified by the husband’s mother as a copy of the email that the husband’s mother actually sent to the husband at 4:07 pm on 7 July 2010. Relevantly, the third paragraph said:
You know [Mr Smith], if you both had paid us, paid your tax and split the house 55:45 per cent after separation you would have got about $555,000 after you paid maintenance. So really all you have lost is the leal (sic) fees. (My highlighting of the additional and different parts)
Significantly, the parts deleted from the document adduced by the wife relate to the disputed debt asserted by the husband’s mother to be owed by the husband to her and her husband and the additional tax that she loaned the husband money to pay. The figure in the document adduced by the wife was also adjusted to reflect an amount that was different by about the amount asserted by the husband’s mother to have been owed to her and her husband.
Although the wife denied having received the email from her daughter’s boyfriend electronically (such that she could then have opened it and edited it on her computer before printing it out) and she also denied changing the content of the email, I simply did not believe her. Her responses were, in my judgement, astonishing and transparently dishonest. I consider that she had in fact tampered with the document to delete content that was adverse to her own case before putting it in and seeking to use it to somehow discredit the husband’s mother.
Counsel for the husband also questioned the wife about an email that his instructing solicitor had sent to an associate of the Case Management Judge in the Sydney Registry of the Court. I was satisfied that the husband’s solicitor had copied it to the wife’s then solicitor, Mr U. Indeed a copy of the email with Mr U’s email address on it was seen by me, though not tendered into evidence. The wife agreed that she had sent a copy of it to the Court complaining about the husband’s solicitor and demanding that she be told to stop sending emails directly to the wife. Indeed, the copy the wife had sent to the Court had Mr U’s email address deleted and had the wife’s email address inserted. Counsel for the husband suggested to the wife that she had changed the email addresses to make it look as if the solicitor had copied it directly to the wife rather than to her solicitor and to falsely support a complaint about the husband’s solicitor. The wife denied doing so and, again, was at pains to tell some elaborate story about email servers that confused the issue and did not clarify it at all.
Again, I simply did not believe the wife’s denial and am satisfied that once more she had changed documents to suit her purposes only to falsely deny it when confronted with the evidence.
Counsel for the husband also tendered into evidence (exhibit 4 in the trial before me) an email exchange between the wife and the husband’s mother on the night of 20 September 2007. The email from the wife to the husband’s mother suggested that the husband’s mother join the wife and the husband in another property development to which the husband’s mother replied emphatically that she was not interested in anything other than the husband and the wife getting their financial affairs in order first.

Under cross-examination, the wife denied having sent the email to the husband’s mother, effectively asserting that it had been falsely concocted to be used against her. However, she did not suggest to the husband or his mother in cross-examination that the email was a fabrication by one of them. Again, I simply did not believe the wife’s denials.
All of these matters, coming as they did, early in counsel’s cross-examination of the wife, significantly damaged her credibility and reinforced my general dissatisfaction with the reliability of the wife as a witness of credit.
I make the orders set out at the commencement of these written reasons, satisfied that they are appropriate and just and equitable in all the circumstances of this case.

I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 March 2017.

Associate:

Date: 3 March 2017

[2017] FamCA 113

3 March 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Commercial Law

Legal Concepts

Remedies

Constructive Trust

Fiduciary Duty

Costs

Jurisdiction

Husband	Wife
$331,745	$200,000
$200,000	$276,622
$8,160
$11,744
$3,963
$531,745	$500,489
TOTAL $1,032,234