PARDO & SILVE

FAMILY COURT OF AUSTRALIA

PARDO & SILVE

[2011] FamCA 140

FAMILY LAW - PROPERTY - global approach in a single pool - assessment of contributions and s 79(4)(d) - (g) - whether superannuation should be split - alleged financial non disclosure

FAMILY LAW - CHILD SUPPORT - departure from administrative assessment - lump sum fund for school fees

Family Law Act 1975 (Cth)

Sections 79(4)(d) – (g) ; s 75(2)
Child Support (Assessment) Act 1989 (Cth)

Section 117

Kowaliw v Kowaliw (1981) FLC 91-092.
Coghlan & Coghlan (2005) 33 Fam LR 414; FLC 93-220
Hickey & Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143
Kennon and Kennon (1997) FLC 92-757; 22 Fam LR 1
Mallet v Mallet (1984) FLC 91-507
Polonius & York [2010] FamCAFC 228
Chang v Su (2002) FLC 93-117
Gould & Gould [2007] FLC 93-333
Gyselman (1992) FLC 92-279

APPLICANT:

Mr Pardo

RESPONDENT:

Ms Silve

FILE NUMBER:

SYC

973

2010

DATE DELIVERED:

2 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

8 - 9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Gayle Meredith & Associates

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

Pursuant to s 79 Family Law Act 1975 an order be made in the terms of paragraphs 2 to 11 below.
Within seven days the husband and wife do all acts and execute all documents necessary to cause the monies held by Gayle Meredith & Associates on behalf of the husband and the wife in National Australia Bank account number … to be disbursed as follows:
2.1.$428,481 to the husband and $150,527 to the wife;
2.2.any balance, 60% to the husband and 40% to the wife.
Contemporaneously with the husband receiving the sum referred to in paragraph 2.1, the husband pay the balance owed with respect to the following credit card facilities:
3.1.Citibank Platinum Card account number …;
3.2.ANZ Low Rate MasterCard account number …;
3.3.ANZ Frequent Flyer Card account number …;
Within 14 days the wife do all necessary to transfer to the husband all shares owned by her in M Pty Ltd ACN … and that thereafter the husband do all acts necessary to cause M Pty Ltd and M Discretionary Trust to be liquidated and/or wound up and in the event there are funds available for distribution thereafter that those funds be distributed as to 60% to the husband and 40% to the wife. The husband is to indemnify the wife in respect of any liability arising from any activity conducted by M Pty Ltd.
Pursuant to s 90MT(4) of the Family Law Act 1975 a base amount of $24,500 of the husband’s superannuation benefits to the wife out of the husband’s interest in MLC Super Plan in the name of L Pty Ltd for Mr Pardo, member number …, customer number … (“the L Super Plan”).
In accordance with Section 90MT(1)(a) of the Family Law Act 1975 that whenever a splittable payment becomes payable the trustees of the L Super Plan:
6.1.create an entitlement for the wife or her administrators, executors, beneficiaries, heirs or assigns to the extent permitted by law to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
6.2.make a corresponding reduction in the entitlement the husband would have had in the L Super Plan but for this order.
The trustee of the L Super Plan (“the trustee”) do all such acts and things and sign all documents as may be necessary to:
7.1.calculate in accordance with the requirements of the Family Law Act1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by Orders 6.1 and 6.2 of these Orders; and
7.2.pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the L Super Plan.
The trustee do all acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law Act1975 and Family Law (Superannuation) Regulations 2001 the trustee can calculate the entitlement of and make payment to the wife in accordance with paragraphs 7.1 and 7.2 of these Orders.
Paragraphs 5 to 9 have effect from the operative time being four days after service of the Order upon the trustee.
Paragraphs 5 to 9 bind the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

Child Support Departure and lump sum fund for school fees

Pursuant to Part 4, Division 5 of the Child Support (Assessment) Act 1989, there be a departure from the assessment of the Child Support Agency reference number … dated 15 June 2010, so that the wife’s child support liability be increased to the sum of $1,500 per calendar month and payment of one half the child’s private school fees and associated expenses for the child for the child support period from the date of these Orders to the date the child reaches the age of 18 years of age or completes her secondary schooling at J whichever last occurs.
Contemporaneously with the receipt by the parties of the monies referred to in paragraph 2 above, and pursuant to s 123 Child Support (Assessment) Act, the husband pay the sum of $60,000 and the wife pay the sum of $40,000 into a cash management fund to be used to pay G Pardo’s (“G’s”) private school fees and associated expenses (as invoiced by G’s school) until completion of her secondary education and, at the conclusion of her secondary schooling, if there are any funds remaining in the account that the account be closed and the proceeds divided between the husband and the wife as to 40% to the wife and 60% to the husband and that the husband be otherwise responsible for any costs associated with G’s education during the period of time that monies remain in the cash management fund.

IT IS NOTED that publication of this judgment under the pseudonym Pardo & Silve is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 973 of 2010

Mr Pardo

Applicant

And

Ms Silve

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings are primarily about how the interests in the property of Ms Silve (“the wife”) and Mr Pardo (“the husband”) should be altered and whether a superannuation splitting order should be made.
The husband also seeks orders regarding both periodic and non-periodic child support departure, including orders for the security for payment of non-periodic child support.

APPLICATIONS

The father’s Amended Application was filed on 24 January 2011. The mother’s Response was filed 16 March 2010.
Counsel for the husband has submitted a detailed Case Outline document. The husband seeks orders in accordance with the Minute of Orders annexed to that document in the following terms:
1.That within seven days that the husband and wife do all acts and execute all documents necessary to cause the monies held by Gayle Meredith & Associates on behalf of the husband and the wife in National Australia Bank account number […] to be disbursed as follows:
1.1.in payment of the balance owed with respect to the following credit card facilities:
1.1.1.Citibank Platinum Card account number […];
1.1.2.ANZ Low Rate MasterCard account number […];
1.1.3.ANZ Frequent Flyer Card account number […];
1.2.in payment of all arrears of school fees and associated expenses due and payable to [J] as at the date of the trial on account of the attendance at the school of the child [G];
1.3.$360,399 to the husband and $129,000 to the wife;
1.4.as to the balance, 60% to the husband and 40% to the wife.
2.That within 14 days the wife do all necessary to transfer to the husband all shares owned by her in [M Pty Ltd] ACN […] and that thereafter that the husband do all acts necessary to cause [M Pty Ltd] and the [M Discretionary Trust] to be liquidated and/or wound up and in the event there are funds available for distribution thereafter that those funds be distributed as to 60% to the husband and 40% to the wife.
3.That the Court allocate as required by Section 90MT(4) of the Family Law Act a base amount of $19,851 of the husband’s superannuation benefits to the wife out of the husband’s interest in [MLC Super Plan] in the name of [L Pty Ltd] for [the husband], member number […], customer number […] (“[the L Super Plan]”).
4.That in accordance with Section 90MT(1)(a) of the Family Law Act that whenever a splittable payment becomes payable the trustees of the [L Super Plan]:
4.1.create an entitlement for the wife or her administrators, executors, beneficiaries, heirs or assigns to the extent permitted by law to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
4.2.make a corresponding reduction in the entitlement the husband would have had in the [L Super Plan] but for this order.
5.That the trustee of the [L Super Plan] (“the trustee”) do all such acts and things and sign all documents as may be necessary to:
5.1.calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by Orders 4.1 and 4.2 of these Orders; and
5.2.pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the [L Super Plan].
6.That the trustee do all acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law Act1975 and Family Law (Superannuation) Regulations 2001 the trustee can calculate the entitlement of and make payment to the wife in accordance with Orders 5.1 and 5.2 of these Orders.
7.That Orders 3 – 6 have effect from the operative time being four days after service of the Order upon the trustee.
8.That having been accorded procedural fairness, Orders 3 – 7 bind the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
9.That the wife pay the husband’s costs.
Child Support Departure
10.That pursuant to Section 123 of the Child Support (Assessment) Act1989, there be a departure from the assessment of the Child Support Agency reference number […] dated 15 June 2010 annexed and marked “A”, so that the wife’s child support liability be increased to the sum of $1,500 per calendar month and payment of one half the child’s private school fees and associated expenses for the child for the child support period from the date of these Orders to the date the child reaches the age of 18 years of age or completes her secondary schooling at [J] whichever last occurs.
11.That on completion of the sale of the [property at K] each of the parties cause the sum of $60,000 to be paid from each of their share of the controlled monies account set out in Order 1 herein into a cash management fund to be used to meet each of their obligations to pay [G’s] private school fees and associated expenses and medical treatment until completion of her secondary education, and at the conclusion of her secondary schooling, if there are any funds remaining in the account that the account be closed and the proceeds divided between the husband and the wife as to 40% to the wife and 60% to the husband.
The wife has not submitted an updated Minute of Orders but has sought a 90/10 percent split of the net assets in her favour.

DOCUMENTS RELIED UPON

The parties have filed a number of affidavits in relation to the various proceedings before this Court and the Full Court of the Family Court. Only some of these are relevant to the current proceedings. It was clarified on the first day of the hearing which of these affidavits the parties wish to rely upon.

Applicant Husband

The husband relies upon the following affidavits:
7.1.Affidavit of the husband filed 17 December 2010.
7.2.Affidavit of Ms V (Clinical Psychologist) filed 16 July 2010.
7.3.Reports of Ms C (Psychologist), Annexure to the husband’s Affidavit filed 17 December 2010, and updated report of 24 January 2011.
7.4.Affidavit of Ms C sworn 7 February 2011 filed in Court on 8 February 2011.
7.5.Affidavit of Ms B, Family Consultant sworn 30 July 2010.
The husband also relies upon his financial statement filed 11 November 2010.
The husband also referred the court to the Judgment of the Full Court of the Family Court dated 1 February 2011 and the following Orders:
9.1.Orders of the Family Court made 5 November 2010.
9.2.Orders of the Full Court of the Family Court made 1 February 2011.

Respondent Wife

The wife relies upon the following affidavits:
10.1.Affidavit of the wife filed 1 Feb 2011.
10.2.Affidavit of the wife sworn 9 September 2011.
10.3.Affidavit of the wife sworn 1 June 2010.
10.4.Affidavit of the wife sworn 8 March 2010.
The wife also relies upon her financial statement filed 1 February 2011.

SHORT HISTORY

The wife was born on in 1960 and is 50 years of age.
The husband was born in 1961 and is 49 years of age.
The parties met in 1980 and commenced cohabitation in 1984. The parties married on 14 January 1989.
In 1997 G (“the child”) was born and is 14 years of age. G is the only child of the parties.
The parties separated on 18 October 2009.
The wife has not seen the child since 3 December 2009.

CREDIT

My impression was that both parties were giving evidence as best they could remember it.
There was one matter in particular, however, where the wife’s honesty was brought into question. The wife had set up a “Number 2” account with the Bank of Queensland. The wife conceded that she had withdrawn a bank cheque of $8,000 from a deposit of $18,000 that either her company or she had been paid as a result of her personal exertion. She said that she had done that and held the bank cheque deliberately in order to have that amount available as ‘insurance’. The wife denied that any part of her motivation was so that she did not need to disclose that amount on her financial statement which she swore in March 2010. She openly volunteered that she was mindful of having to pay GST on this amount, at the time.
Counsel for the husband submits that the wife’s conduct concerning the Bank of Queensland cheque of $8,000 was done “plainly with the object of secreting it from the proceedings”. There is an absence of any mention of the $8,000 in the wife’s financial statement dated 8 March 2010, in circumstances where the wife concedes that she was holding the cheque made out to herself. Whatever her motivation, I do not find that this incident changes my general impression that the wife was doing the best she could to accurately provide the court with information.
Little turns in this case on issues of credit and I will, if I am able, make findings about any controversial matters based on objective material that I otherwise have.

CHRONOLOGY

The husband is a professional employed by Business 1. For the period of time between 1987 and 2008, the husband was professionally engaged in business.
The wife is a consultant, although she is not currently employed in that capacity and is seeking suitable employment.
In October 1988 the husband obtained an overdraft facility with the Commonwealth Bank to assist in cash flow in his business. The husband conceded that, for the first two to three years of his business he was supported significantly by the wife. Although he could not provides dates or figures with any precision, the husband says that after approximately three years the parties’ incomes were about the same.
In January 1990 the husband purchased Business Premises A at a cost of $88,000.00. The acquisition cost was wholly borrowed from Suncorp Finance Limited.
In July 1990 the husband purchased Business Premises B for $260,000.00. This amount was also wholly borrowed from Suncorp Finance Limited.
In December 1990 the wife commenced her own consultancy business.
In December 1990 the husband’s mother died. The following year, the husband inherited $40,000.00 from her estate.
In September 1991 the wife incorporated N Pty Limited and thereafter conducted her consultancy using that entity.
In 1992 the parties incorporated O Pty Limited as a service entity for the husband’s professional business. The parties are the shareholders and directors of that entity.
In April 1992 the husband effected a sale of his Business Premises A for only $2,000.00. The husband refinanced the Suncorp facility outstanding on those premises with the Suncorp facility secured on Business Premises B.
In May 1992 the parties exchanged contracts to purchase, in the wife’s name, a property at P for $245,000.00. They borrowed $221,000.00 from the Advance Bank. The wife later conducted her business from the property at P.
In 2000 the parties caused Q Pty Limited to be incorporated as Trustee for the Q Unit Trust and the M Discretionary Trust. The husband effected a disposal of his interest in Business Premises B to the Q Unit Trust. The parties effected a refinance of the property at P and the husband became a registered proprietor of that property.
In April 2000 the parties purchased, in the wife’s name, a property at K in the sum of $850,000.00 plus acquisition costs. They obtained a loan in the wife’s name of $371,500.00 from the Commonwealth Bank, guaranteed by the husband. They otherwise consolidated other Commonwealth Bank facilities using the equity in the property at P and the husband’s interest in Business Premises B to meet the balance of the purchase price. The husband sold his interest in Business Premises B to the Q Unit Trust for $311,000.00. Those funds were used to pay out the Suncorp loan, at the time, of $148,733.00. The Q Unit Trust borrowed from the Commonwealth Bank to complete the transaction. Q Pty Limited thereafter, by way of the Trust, engaged in public share trading.
In 2003, the child commenced school at S. The child now attends school at J, having commenced in June 2007 by agreement between the parties. The child is scheduled to complete year 12 in 2016.
In August 2003 the parties jointly purchased a property at R in the husband’s name for the sum of $555,000.00. They borrowed the entire purchase price and stamp duty from the Commonwealth Bank secured on the property at R, the property at P and the property at K. The purchase was completed on 16 October 2003. The property was thereafter rented.
The husband thereafter re-purchased from the Q Unit Trust, Business Premises B. He obtained a loan from the Commonwealth Bank to refinance/replace the Q Unit Trust facility from that entity. This loan was also secured on the property at K and guaranteed by the wife.
In February 2004 the parties borrowed an additional $110,000.00 from the Commonwealth Bank secured upon the properties to assist with cash flow and financial planning. The $110,000.00 was raised by way of an increase in the husband’s Capital Equity facility with the Commonwealth Bank, guaranteed by the wife (see pages 44-59 of the annexures to the husband’s affidavit filed 17 December 2010).

In 2005 the Q Unit Trust ceased trading and was subsequently wound up.
On 17 January 2006 the husband received a lump sum payment from a long-standing business matter of $354,545.45 plus GST. He caused these monies to be paid to a Commonwealth Bank overdraft which was secured on the property at K. At that time he ceased work for six months. The parties did not engage in employment for a period of approximately six months, undertaking renovations to the property at K.
On 27 June 2006 the parties obtained a number of approvals from the Commonwealth Bank to refinance all the existing loan facilities and mortgages on the properties at K and P totalling $898,000.00. All loans were taken out in the name of the husband. The wife was the guarantor of the facilities. The total indebtedness of the parties to the Commonwealth Bank as at 27 June 2006 was $2,019,080.00.
At that time, the husband returned to work.
In June 2007 the Commonwealth Bank facilities went into default. The parties agreed to an orderly sale of the properties at P and R in order to rationalise debt.
The property at R was listed for sale in July 2007. On 19 December 2007 the property at R was sold for $636,500.00. All of the funds were used to discharge the Commonwealth Bank facilities.
After listing the property at P for auction in October 2007, the property was eventually sold on 16 September 2009 for $860,000.00. All of the monies were used to reduce the Commonwealth Bank debt. The sale of the property at P produced a capital gain which is taxable in the hands of each of the husband and the wife.
On 18 January 2008 the husband sold his interest in Business Premises 2 for $150,000.00, again for an amount which generated a capital loss. All the funds were used to reduce the Commonwealth Bank debt.
On 1 July 2008 the husband commenced to work with L Pty Ltd in a professional capacity.
In April 2009 the husband commenced casual employment in a professional capacity with Business 1. He initially worked for 24 hours a week and those hours vary up to 40 hours per week. The husband commenced to be employed solely by Business 1 in July 2010.
The wife queried the hours worked by the husband between April 2009 and July 2010. The husband said that there was a period of time in which he was working for both L Pty Ltd and the Business 1. The husband says that when he commenced with L Pty Ltd in 2008 he was initially working approximately 8 hours per week. This amount increased substantially over the proceeding months until he was working approximately 30-40 hours per week, which later reduced to approximately 24 hours per week. When the husband resigned from L Pty Ltd he was working approximately 20-40 hours per week there as well as hours at the Business 1. It follows the husband was working up to approximately 80 hours per week between the two jobs for a period of time.
The husband’s evidence is that the Commonwealth Bank had been pressing the parties in relation to their financial circumstances since 2007. The husband’s evidence is further that in August 2009 the husband commenced to enter into exchanges with the wife requesting the disposal of the property at K so as to avoid accumulating penalties, interest and other costs in circumstances where the loans secured upon the property were not being paid.
Both the husband and the wife argue, to some degree, that the other party’s actions or inactions in relation to the arrangements regarding the accommodations and finances of the parties resulted in ‘waste’ of those assets as that term is used in such authorities as Kowaliw v Kowaliw (1981) FLC 91-092. The Husband points in particular to the course of interim litigation in respect of the sale of the property at K. The wife says that, in departing the relationship, the husband left her with little money and large loan obligations. The wife says that the husband led her to believe that the parties’ finances were under control, but that he failed to get them under control. As an example, the wife says that the husband failed to provide various tax returns to the Commonwealth Bank of Australia in accordance with an undertaking given to the Bank as part of negotiating business loans. The wife asserts that the husband’s behaviour in this respect was reckless. The wife contends that the husband should have structured their finances and living arrangements differently both around the date of separation and post-separation.
The parties separated on 18 October 2009. On that date, the husband vacated the parties’ property at K. The child left with her father and has remained living with him since. The child has not spent time with the mother since 3 December 2009. The parties are not yet divorced.
On 1 November 2009 the husband forwarded an email to the wife advising her that he could no longer pay the interest instalments due in relation to the loans secured upon the property at K.
On 18 February 2010 the husband filed with this Court an application seeking orders on a final and urgent interim basis to sell the property at K.
On 16 March 2010 the wife filed a response to the husband’s application. As to final orders for property settlement the wife sought that she be declared solely entitled to the property at K and the husband be declared solely entitled to the M Discretionary Trust. On an interim basis, the wife sought that the husband remove a caveat from the title of the property at K and that by way of interim spousal maintenance the husband be ordered to pay and continue to pay as and when they fall due all instalments in respect of loans secured on the title of the property at K.
On 2 June 2010 orders were made on an interim basis by Judicial Registrar Johnston enabling the wife to refinance the Commonwealth Bank’s facilities secured upon the home and, in the event of default, orders for the sale of the property. The parenting proceedings were adjourned for a further interim hearing on 20 July 2010.
Following the wife’s application (on 20 July 2010) for orders that the parties and the child attend for family therapy (a course of action opposed by the husband and the Independent Children’s Lawyer), the parties attended upon the Family Consultant with the child for the purposes of the Child Responsive Program on 20 July 2010.
On 26 July 2010 the wife filed an application to review the 2 June 2010 orders of Judicial Registrar Johnston. On 8 July 2010 the wife filed an application for a stay of those orders. On 16 July 2010 the husband filed a response seeking orders for implementation of the primary orders for the sale of the property.
On 17 August 2010 the wife’s application for a stay of the orders relating to the sale of the home was refused by Justice Johnston. Orders were made pursuant to Section 106A to enforce and implement the orders for sale of the property.
On 10 September 2010 the wife’s application for review of Judicial Registrar Johnston’s Orders made 2 June 2010 for the sale of the home was dismissed by Justice Cohen. The husband’s costs were reserved.
On 10 September 2010 the wife filed an application for leave to appeal from the orders made by Justice Cohen 10 September 2010. Leave being granted, the wife filed her appeal on 7 October 2010. On 12 October 2010 the wife filed an application for a stay of the orders.
On 6 October 2010 the wife filed an application for interim spouse maintenance orders.
On 15 October 2010 the wife’s stay application was dismissed by Justice Cohen and further orders were made implementing and supplementing the orders for the sale of the property at K. The husband’s costs were reserved.
On 15 October 2010 contracts were exchanged for the sale of the property at K for the sum of $1,625,000.00. From the deposit paid by the Vendors, each of the parties received $22,199.00.
On 21 October 2010 the wife appealed from Justice Cohen’s refusal to grant a stay and sought leave to appeal against other ancillary Orders made on 15 October 2010.
On 29 October 2010 the wife’s application for expedition was listed before and granted by the Full Court.
On that same day, before Justice Johnston in relation to the parenting proceedings, the wife with leave, stood over her application for interim parenting orders and all interim parenting applications. It was noted that the Independent Children’s Lawyer (“ICL”) would prepare a Minute of Final Parenting Order and submit that initially to the mother and subsequently to the father with a view to orders being made by a Registrar in Chambers. The ICL thereafter prepared the Minute but the mother did not sign it.
On 4 November 2010 the Full Court heard the appeal in respect of the refusal to stay the appeal against ancillary Orders made 15 October 2010.
On 5 November 2010 the Full Court allowed the stay appeal in part and varied the ancillary Orders.
On 15 November 2010 I dismissed the wife’s application for interim spouse maintenance. Orders were made for interim property settlement, listing of the matter for trial with other directions and further orders to implement completion of the sale of the matrimonial home.
On 1 December 2010 the sale of the property at K settled. From the proceeds of sale:-
71.1.Watts McCray, Solicitors were paid, on behalf of the wife, $33,273.00;
71.2.each of the parties received thereafter $85,000.00, and
71.3.a sum of $574,740.07 was paid into a Controlled Monies Account with the husband’s solicitors on behalf of the parties.
Following these transactions, the amount required to discharge the securities in favour of the Commonwealth Bank on the property was $760,622.64. As at the date of separation, the amount required to discharge the Commonwealth Bank loan secured upon the matrimonial home was $648,814.75.
On 1 February 2011 the Reasons for Judgment were provided in relation to the stay appeal and the substantive appeal from the Orders of Justice Cohen made 10 September 2010.

APPROACH

In this matter my task is to:
74.1.Identify and value the property, assets, financial resources and liabilities of the parties;
74.2.Identify relevant contributions and assess them;
74.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;
74.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

The following balance sheet was submitted by counsel for the husband:

Assets
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
1	J	Amount in controlled monies account from sale of [property at K] @ 31.1.11	$579,008.00	$579,008.00	Agreed	$579,008.00
2	W	Release of part deposit [property at K] - partial property settlement	$22,199.00	$22,199.00	Agreed	$22,199.00
3	H	Release of part deposit [property at K] - partial property settlement	$22,199.00	$22,199.00	Agreed	$22,199.00
4	W	Payment Watts McCray on settlement - partial property settlement	$33,273.00	$33,273.00	Agreed	$33,273.00
5	W	Release of part of proceeds of sale of [property at K]	$85,000.00	$85,000.00	Agreed	$85,000.00
6	H	Release of part of proceeds of sale of [property at K]	$85,000.00	$85,000.00	Agreed	$85,000.00
7	W	2000 Mercedes Benz […]	$15,000.00	$4,000.00	Determined	$15,000.00
8	H	2007 BMW […]	$42,600.00	$42,600.00	Agreed	$42,600.00
9	H	308 IAG shares @21.1.11 (in the name of [M Discretionary Trust])	$1,146.00	$1,146.00	Agreed	$1,146.00
10	H	Commonwealth Bank accounts […] and […] @ 14.12.10	$8.00	NK	Determined	$8.00
11	J	2 shares in [M Pty Ltd] trustee only	$2.00	NK	Determined	$2.00
12	J	[M Discretionary Trust]	$0.00	NK	Determined	$0.00
13	W	[N Pty Ltd]	NK	$0.00	Determined	$0.00
14	W	Contents & Jewellery	$20,000.00	$4,000.00	Determined	$4,000.00
15	H	Contents	$1,500.00	NK	Determined	$1,500.00
16	W	Bank accounts	$0.00	NK	Determined	$0.00
17	H	Addbacks - 50% of $14,800	$0.00	$7,400.00	Determined	$7,400.00
18	W	Addbacks - increase of balance of mortgage on [property at K] between separation and sale	$111,808.00	$0.00	Determined	$0.00
19	H	OnePath - Integra Retirement Plan	$34,349.00	$34,349.00	Agreed	$34,349.00
20	H	[L Super Plan] (MLC Masterkey)	$33,217.00	$33,217.00	Agreed	$33,217.00
21	W	Care Super	$4,000.00	$4,000.00	Agreed	$4,000.00
Total assets			$969,901.00
Liabilities
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
22	H	Citibank Platinum	$49,861.00	$0.00	Determined	$49,861.00
23	H	ANZ low rate Mastercard […]	$17,436.00	$0.00	Determined	$17,436.00
24	H	ANZ Frequent Flyer	$5,683.00	$0.00	Determined	$5,683.00
25	H	Esanda Finance	$56,346.00	$0.00	Determined	$56,346.00
26	J	[J] fees	$22,686.00	$22,686.00	Agreed	$22,686.00
27	H	Other debts	$2,500.00	NK	Determined	$0.00
28	W	David Jones store card	$0.00	$5,680.00	Determined	$0.00
29	H	Legal fees unpaid	$94,762.00	NK	Determined	$0.00
Total liabilities			$152,012.00
Total net assets			$817,889.00

Items 2 - 6

Counsel for the husband contends (and the wife did not put this contention into issue) that it is “appropriate, proper and just” to notionally add back to the pool the monies distributed to and on behalf of each of the parties from the proceeds of sale of the home and I accept that this is so.

Item 7 – The wife’s car

There was a dispute in relation to the value of the wife’s 2000 Mercedes Benz motor vehicle. The wife asserted that the current value of that vehicle was $4,000, being the amount the wife says she was quoted for a trade-in of the car. The wife however produced no evidence from any expert indicating that that was the current value of her motor vehicle. The husband relies on two statements made by the wife, against her interest, in relation to the value of the motor vehicle. The first is contained in her sworn financial statement of March 2010 (exhibit 8) where the wife estimates a value of $15,000.00. The wife’s evidence is that the figure of $15,000 as estimated in that document was based on a Redbook valuation. The financial statement was prepared in consultation with her solicitor at the time. The second statement is contained in the wife’s preliminary loan application to the Bank of Queensland of May 2010 where she repeats the value of the motor vehicle as being in the sum of $15,000.
The husband is entitled to rely upon the wife’s statements. I conclude that the appropriate value to place on the wife’s motor vehicle is $15,000.

Items 10 - 13

I accept the values asserted in items 10 to 12 by the husband. The amounts involved are minimal and the wife made no submissions about them. In relation to item 12, the husband has sought that the company be liquidated. The parties agree the company has no value but in the event there are funds available for distribution, the husband has sought an order that those funds be distributed as to 60 percent to the husband and 40 percent to the wife. Given the findings I will make, that is an appropriate order. I adopt a similar approach to item 13. The wife asserts that her company is currently not of any value. The husband did not make any submission to the contrary. The wife’s assertion is consistent with the evidence I have and I accept the company currently has no value.

Item 14 – The wife’s contents and jewellery

The wife in her sworn evidence indicated that her contents and jewellery in her estimation had a value of $4,000. The husband seeks to rely upon a statement that the wife made in a preliminary application for finance provided by her to the Bank of Queensland.
The wife’s loan application with the Bank of Queensland dated 21 May 2010 discloses ‘Furniture and effects (insured value)’ at a value of $20,000.
The husband did not question the wife about the statement which she made in her loan application and given it contradicts the amount provided in her sworn evidence I find that $4,000.00 is the more appropriate figure to include, particularly as this is consistent with my approach to the next item.

Item 15 – The husband’s contents

The husband asserts in his sworn evidence that his contents are valued at $1,500. I have no other information about the husband’s contents. The wife did not challenge the husband when cross examining him in respect of this figure. I accept the husband’s figure.

Item 16 – Bank accounts

The wife was asked questions about what she did with certain monies in the “Number 2” Bank of Queensland account. There was however no submission that a specific amount should be added back to the balance sheet in relation to any assertion of financial non disclosure. Item 16 will therefore be nil.

Item 17 – Storage and removalist fees

In the wife’s affidavit of 31 January 2010, paragraph 18 she states, “Most recently, I have borne what I consider to be our joint expenses by way of cleaning the house for vacant possession - I have paid $4,500 to have rubbish removed from the shed”. In paragraph 22 the wife says, “Storage and removalist fees have totalled some $10,300”. The combination of those two amounts is $14,800 which is the amount referred to by the wife. This evidence was admitted without objection.
The wife asserted that the husband should be responsible for paying one half of what the wife alleged were expenses in relation to removalist fees and storage fees of items that were at the property at K. Counsel for the husband asserts, and the wife did not seem to disagree, that the wife only requested that this item be placed upon the balance sheet during the course of the hearing. The wife has not produced, during the hearing, invoices that would evidence her expenditure in the sum of $14,800.
The wife said that she paid for those amounts in cash on the day. The wife said that she had an invoice and receipt for the storage and removal component (asserted to have cost $10,300) but did not so indicate in relation to the rubbish removal (asserted to have cost $4,500).
Notwithstanding the fact that the wife did not bring documentary evidence to court to corroborate the payments, I accept her oral evidence that she made them. It is appropriate that this cost be shared equally and half these costs, paid by the wife, will be notionally included as an asset in the husband’s hands.

Item 18 – Increase in balance of mortgage

The husband complains that from the date of separation he was asking the wife to sell the property at K because he asserted the parties were unable to service the mortgage on the property at K to the CBA. At the date of separation the husband left the property at K with the child and the wife continued to reside there.
At the time of the separation, the CBA accounts secured by mortgage against the property at K were in the sum of $648,814. On completion of the sale, the payout for those accounts to the CBA was in the sum of $760,622. The husband claims consequently that the amount of $111,808 should be added back against the wife onto the balance sheet.
By way of an alternate submission, counsel for the husband says that this behaviour by the wife could be taken into account when assessing contributions or alternatively taken into account at the third stage under s 75(2)(o) FLA.
Notwithstanding some clear obstruction by the wife in relation to the sale of the property at K, I am unable to quantify in a mathematical way the loss sustained by the parties and count that loss against the wife in the way asserted by the husband. I do not think in the circumstance that any amount can be added to the balance sheet against the wife with any certainty. I find the more appropriate time to deal with this issue is when assessing the parties’ contributions.

Item 18 will be entered on the balance as nil.

Items 22 - 25 - Debts

It is the husband’s case that the debts referred to in these items existed at the date of separation. His evidence is that in respect of these credit cards, he has paid the minimal amount required by the providers of the credit cards on a monthly basis to maintain the cards. Given that the debts existed at the date of separation, the husband claims they should be properly added onto the balance sheet as a liability that he still has. The wife, towards the end of the hearing, conceded that her assertion that these cards fluctuated from time to time was not something that she could maintain and she accepted that firstly the debts existed at the date of separation and secondly, the only movements on the credit cards were the husband’s minimal payments from time to time.
Counsel for the husband offered to tender the credit cards (which were in yellow manila folders on the bar table) but given the wife’s concession, he did not do so. It follows that these amounts should be added back onto the balance sheet.

Item 26 - J school fees

The parties agreed that outstanding J school fees for the child will be paid and I made an interim order to that effect on the second day of the hearing. Given that the amount will be taken from the amount referred to in item 1, that debt should be properly recorded on the balance sheet.

Item 27

The husband claimed other debts of $2,500. Although that item was not the subject of submissions, I am unaware of any evidence of the husband which would support the inclusion of this item on the balance sheet.

Item 28 - David Jones store card

The wife has asked that her David Jones store card be placed on the balance sheet in the sum of $5,680. The wife swears in her financial statement of 1 February 2011 that that is the current balance in relation to the “DJ’s Account - Store Account”. The wife however does not otherwise produce any document verifying that amount, despite counsel for the husband calling for such documents. Counsel for the husband points out that in the wife’s May 2010 financial statement, there is no debt to David Jones shown (although there was a regular expense item in respect of minimal payment on the credit card). I can only conclude on the evidence I have that the current debt alleged by the wife has accumulated between May 2010 and the current time. Without further information I do not accept that it is appropriate to add this item back to the balance sheet.

Item 29

The husband has included on the draft balance sheet an item for unpaid legal fees that he owes his lawyers in the sum of $94,762.
Notwithstanding the husband’s professional standing, I accept that, given the emotional content that was clearly obvious between the parties during the trial, the husband’s choice to use legal representation was open to him.
It would not be usual to allow legal fees which are owed by a party to be added back onto the balance sheet and there was no submission made by counsel for the husband that would move me to do so in this case. I will note that item as nil.

GLOBAL OR ASSET BY ASSET APPROACH?

Throughout the course of the proceedings, counsel for the husband submitted that a two pool approach should be taken to the assessment of the contributions of the parties up to the date of the hearing. The foundation for this submission seemed to be that, having regard to the value of the superannuation relative to the remainder of the pool, the husband sought a superannuation splitting order. Counsel for the husband submitted that the total value of the property of the parties was “modest” and that superannuation interests accounted for approximately $71,000 or 10 per cent of the total assets available for distribution.
The wife submitted that a single pool approach would be appropriate.
In seeking an asset by asset approach the husband sought a 50/50 division of the assets based on contributions and in relation to the non superannuation assets, a 60/40 division in his favour. Counsel for the husband failed to explain during submissions why it would be appropriate to differentiate between those assets in that way.
The principles to be applied in relation to superannuation interests have been discussed in some detail by the Full Court in the cases of Coghlan & Coghlan (2005) 33 Fam LR 414; FLC 93-220 (‘Coghlan’) and Hickey & Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143 (‘Hickey’). In Coghlan, the majority (Bryant CJ, Finn and Coleman JJ) said (at paras 61-68):
Practical implications
61.Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.
62.The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis.....
63.However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise)......
64.Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed.....
65.In summary, then, the trial Judge has a discretion as to how superannuation interests will be treated in a particular case. If superannuation is not included in the list of property but rather made the subject of a separate pool, it will be necessary where a splitting order is sought, or extremely prudent where no such splitting order is sought (in order to ensure that justice and equity is achieved) to:
(a)value the superannuation interest (according to the Regulations if an order under Part VIIIB is sought or according to the Regulations or otherwise if no order is sought);
(b)consider and make findings about the types of contributions referred to in s 79(4)(a), (b) and (c) which have been made by the parties to the superannuation interests on either a global approach or an asset by asset approach depending on the circumstances;
(c)consider the other factors in s 79(4) being the matters in s 79(4)(d), (e), (f) and (g); and
(d)ensure that pursuant to s 79(2) the orders in relation to the parties’ property, and any order under Part VIIIB in relation to superannuation interests are just and equitable.
66.In the context of a consideration of the matters referred to in sub-paragraphs (b) and (c) of the last paragraph, the following matters may well be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.
67.If this approach is adopted, whereby superannuation interests are dealt with separately from property as defined in s 4(1), but are subject to the considerations in s 79(4), then not only will any contributions, both direct and indirect, by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account, both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.
68.When we refer to “the real nature” of the relevant superannuation interest, we are referring to the fact that notwithstanding that its value according to the Regulations may well be calculated to be a very significant amount, that superannuation interest may be no more than a present or future periodic sum, or perhaps a future lump sum, the value of which at date of receipt is unknown.
I accept the wife’s submission that superannuation be treated as part of one pool for the purposes of assessment of contribution. The parties’ have straight forward superannuation interests in accumulation funds. There is no reason in this case not to treat them as “indeed property”. Alternatively, if that approach is incorrect, I find there are features about the interest which lead me to conclude that there is no utility in separating out the parties’ superannuation interests and assessing contributions made to them separately from the other assets and liabilities. After a discussion of the appropriateness or otherwise of a two pool approach during the course of counsel for the husband’s submissions, counsel for the husband seemed to acknowledge that even if a single pool approach was adopted, a superannuation splitting order could still be made from that pool.

CONTRIBUTIONS

Counsel for the husband’s submissions as to overall contributions was in two parts. The Husband’s primary position is that, if the court accepts the husband’s waste argument in relation to the $111,808 increase in the value of the mortgage, and notionally adds that amount back against the wife to the pool available for distribution, then the contribution assessment for the husband should be around 52 to 53 per cent, based on the balance of the husband’s greater post-separation contributions. The husband pointed to the fact that he had been the parent solely responsible for looking after the child since the separation. It is the husband’s alternate position that if the loss resulting from the increase in the mortgage on the property at K is not going to be added back onto the balance sheet against the wife, then it should be considered when dealing with the parties’ contributions to the overall net asset pool. Counsel for the husband maintained that on that analysis there should be a 10 percent adjustment in the husband’s favour for post-separation considerations.
The wife’s primary contention in these proceedings is that the wife made the primary contributions to the assets of the parties. The wife says that there should be a 20 percent adjustment in her favour when contributions are looked at across the entire time of the marriage. As already discussed, both the husband and wife have raised, to varying degrees, arguments that the other party should be held responsible for ‘waste’ of the parties’ assets.
The wife’s case is that the husband should be held responsible for ‘waste’ caused by, as she asserts, his mismanagement of the parties’ finances in the period surrounding their separation and post-separation.
Whilst it remained a live issue during the trial, the husband during final submissions abandoned any claim that the husband might make either on the basis that the wife’s contributions in the role of homemaker and parent were diminished as a result of her consumption of alcohol during the marriage (Mallet v Mallet (1984) FLC 91-507 (per Wilson J at page 79,126)) or that the husband’s contributions during the marriage were made significantly more arduous as a result of the wife’s consumption of alcohol (Kennon and Kennon (1997) FLC 92-757; 22 Fam LR 1).

Cohabitation

At the commencement of cohabitation both parties had nominal property.
The husband’s physical efforts and labours were applied towards improving and conserving the real estate of the parties, as detailed in his affidavit dated 17 December 2010 (paras 61 to 67).
Counsel for the husband submits that during the early years of cohabitation, subsequent to the child’s birth, the parties shared the tasks required to meet the child’s needs on a day-to-day basis. I accept that both parties did this commensurate with the time that income earning activities allowed them.
The husband received the sum of $40,000 from his late mother’s estate. Counsel for the husband did not, in his final submissions, maintain that this should cause the husband’s contributions in the pre-separation period to be assessed as greater than those of the wife.
Putting the wife’s submissions at their highest, she would ask that I accept that, during the cohabitation, she was the person primarily responsible for looking after the family; at various points in time she was the major earner of income and that the husband should not be taken as having applied himself at all times diligently in relation to earning income. I am unable to make a finding that when viewed across the entire period of the cohabitation the wife’s contributions were superior to the husband’s.
Without evidence in the form of the wife’s tax assessments, it is difficult to make any findings in relation to the wife’s income over the relevant periods.
In relation to her assertion of income earned during the marriage, the wife relied heavily on annexure H to her affidavit of 9 September 2010. That annexure asserted that between July 1979 and 2011 the wife had earned $2,928,617. On the second day of the hearing the wife produced (apparently for the first time) the source documents for her calculations. It was clear during cross examination that the figure of approximately $3,000,000 in that period was gross earnings, not taxable income. In fact it seemed clear in relation to a number of years in recent times about which the wife was asked questions that the corporate entity under which she operated actually had trading losses. So much so that at the date of hearing, the wife’s company had accumulated trading losses in the amount of $74,397 (at the end of the June 2008 year). The wife had not produced at the trial her draft 2009 return which she said was in a box at home. Given the state of the evidence, I am unable to accept the wife’s assertion that, taken as a whole throughout the marriage, she was the major source of income into the marriage. The husband conceded in his evidence that during the period of time he was building up his professional business, the family relied upon the wife’s income more heavily than it did on the income he was earning at that time.
I find that throughout the period of cohabitation each party’s contributions were equal up to the date of separation.

Post-separation period

It has been over a year since the separation. In relation to the post-separation period, counsel for the husband submits that the husband’s contributions should be assessed as greater than those of the wife. The wife asserts the adjustment should be in the other direction. Both blame the other for the increase in the mortgage between separation and sale.
Counsel for the husband relies upon the asserted ‘waste’ on behalf of the wife in the sum of $111,807.89 in respect of the wife’s continued occupation of the matrimonial home in the context of her failing to meet the costs of the loan facilities secured upon that property or the rates and other outgoings in respect of the property.
Counsel for the husband’s put to the wife, that “with every facility available to you opposed the sale of the home?” The wife conceded in the following terms, “Yeh, I had no choice”.
The wife had entered a contract to sell the home on 15 October 2010. Counsel for the husband then pursued a line of questioning as to why the wife continued to pursue her actions against the Orders through this Court. The wife’s response was “I would have been in the street had I not lodged the appeal”. The wife conceded that the contract for the sale of the home “would have gone through” even if the outcome of her proceedings in this court had been successful.
When asked by counsel for the husband why she continued to pursue the appeal, the wife responded “with $30,000 (an amount the wife would receive by way of interim property settlement) and knowing what my relocation costs were, $30,000 would barely pay to clear the rubbish that was in the sheds”. Counsel for the husband pointed out to the wife that the husband “had been agreeable” to allowing the wife to receive $100,000 of the proceeds of the sale of the home which was in the form of “an open offer in court noted on the record”. The wife conceded that this was true.
Counsel for the husband suggested to the wife that “you continued with your appeal out of belligerence and malice” to which the wife objected “strongly”. To counsel for the husband’s suggestion that “your opposition in continuing by way of review and appeal to seek orders to prevent the home being sold was a folly” the wife responded “I disagree, do you think I wasn’t scared of not having a roof over my head?” I accept the wife’s explanation as to her motivation notwithstanding the palpable animosity that flowed both ways between the parties during the hearing (The wife added “....Do you think I hadn’t realised how vindictive [Mr Pardo] had become?”). The wife has elsewhere (in her affidavit sworn 9 September 2010) said that she was “not in a position to leave the home for various reasons, mainly because I will have nowhere to live and will lose my main source of current income”, indicating the income received from the boarders.
Counsel for the husband also focussed on the wife’s purported explanation that part of the reason she opposed the sale of the matrimonial home was that she had hoped to refinance the facilities and thereby avoid a sale of the property. The amount required was $648,000.00. It was put by counsel for the husband, in cross examination of the wife, that she never had the capacity to refinance the facilities. The wife disagreed, pointing to the fact that she had organised to have boarders in the home and had an expectation of earning an income through employment when she made the preliminary loan application to the Bank of Queensland on 21 May 2010. Indeed the loan applications documents list the wife’s income as $70,000 per annum and a further income of $540 per week referable to the boarders. The wife conceded that her ability to refinance the facilities “was commensurate with me hopefully gaining a full time position”. The wife explained that at the time she “had an undertaking that I was successful in a position that, with changes, unfortunately that fell through”. Counsel for the husband submits that the wife at no point had the ability to refinance the loan facilities in the following terms: “the highest the evidentiary foundation for the refinance gets is a conditional approval of a low doc loan, subject to completion of an application form.” I accept that the Wife was hoping rather than being realistic when she imagined she might have been able to refinance the property at K.
I find that towards the end of the conveyancing transaction the wife failed to provide instructions and answers to requisitions to the solicitor on the sale.
The correspondence shows that the wife was requested on a number of occasions to agree to a sale.
The wife’s position as to the husband’s role and culpability in relation to the increase in the amount of the mortgage and the associated “waste” of the parties’ assets was based on numerous assertions. The wife asserted that it was the husband who controlled the finances of the marriage. The wife says that she believed that he had their finances under control and was taken by surprise by the state of their finances as they became clear. The wife’s says that when the parties separated and the husband moved out of the matrimonial home with the child, the husband did not continue to pay their obligations on their loans. The wife says that she did not have any capacity to do so herself at that stage, having only $300 in her bank account at the time.

The wife further says that the husband led her to believe that their finances were under control: “he assured me as we sold [the property at P] that it was fine; we could keep [the property at K] [and] the banks happy”. The wife says that the husband had made numerous assurances to the bank that he would provide various documents as part of renegotiating the loans. The wife says that this was not done and asserts that in hindsight she believes the husband had no intention of so doing. The wife says that, had the husband renegotiated the loans he could have caused the interest rate to be reduced from almost 16 per cent to 8 per cent. The wife says that the husband did so “vexatiously”.
The wife’s submission is that “that was reckless”. When I questioned her what she believed should have been done differently, the wife said “we could have structured our whole finances differently”, explaining that she would have organised her accommodations and other matters differently.
The wife asserts that the husband should be responsible for the “waste” due to “the way he departed our relationship by not paying the bank loans, by not paying the bank fees” and by leading the wife “to believe that all was fine” and by failing to structure their finances differently in order to avoid the increase in the parties’ liabilities which is now asserted to be “waste”. The wife thus submits that the husband should be responsible for these losses around separation and post-separation.
Counsel for the husband questioned the wife in detail on her knowledge of the parties’ financial situation around the date of separation and subsequently. As far back as August 2009, prior to the parties’ separation, the husband informed the wife they could not afford their debts and needed to dispose of the property. In paragraphs 58 and 98-102 of the husband’s affidavit filed 17 December 2010 the husband sets out conversations between he and wife, the substance of which was that the husband agitated for a sale of the property whilst the wife said that she wanted to stay in the house for longer until she found employment. This evidence was not disputed by the wife.
The wife’s position is that she knew their finances needed to be addressed and that they had to sell the property at P, however she thought that the monies received from the sale of the property at P would go towards the loans secured by the property at K. As I discuss below, the wife knew by January 2010 what the level of debt was which was still secured upon the property at K.
The wife asserts that, prior to there being any indication that their finances were in trouble, she relied on her expectation that the husband had their finances under control, based largely on the fact that he had always taken care of such matters, and on representations asserted to have been made by the husband that he was addressing their finances, evidenced, the wife says, by emails from the husband to the bank to that effect.
The wife, throughout the proceedings, disputed that she had such knowledge of the amount sought to be recovered by the Commonwealth Bank. She stated that she did not receive the information from the bank when she requested it. She said that she tried to make enquiries about the state of the loans with the Commonwealth Bank, but that the bank refused to provide her with information about those loans because they were in the husband’s name, the wife being the guarantor of those loans. She mentioned numerous occasions on which she asserts she tried, without success, to find out about the state of their financial situation.
The wife has annexed to her affidavit sworn 1 June 2010 some correspondence between herself and representatives of the Commonwealth Bank.
On 2 November 2009, the wife emailed Ms U, a Business Client Manager with the Commonwealth Bank seeking “the settlement sheet from the sale of [property at P]” and “for the past 12 months, the breakdown/statements of all accounts that I am a signatory to and/or guarantor.”
The wife followed up this email, to which she says she did not receive a response, on 25 November 2009. In that email the wife requested the documents again. She also asked for “advice from the bank as to what payments etc have been made and whether [the husband] has provided you with the necessary financials as these are the key sources of information outstanding.”
The wife received a response to that email from Ms U on the same day, setting out the details in relation to the distribution of the settlement funds. Ms U directed the wife to seek the statements from a branch.
The wife says that she was not provided the authority to access these statements. In a letter dated 30 November 2009 to the wife’s then solicitor, the wife says that she attended the bank branch but was unable to gain copies of the statements, as the written authority of the husband was required and had not been provided by him.
Further correspondence to Ms U from the wife dated 24 December 2009 sets out numerous questions in relation to the parties’ finances. The focus of the wife’s concerns primarily related to how the bank had allocated the settlement monies from the property at P.
The wife does not appear to enclose with her documents, the Financial Ombudsman’s response to her complaint, which might indicate a resolution of these issues with the bank.
Various documents show that the wife did in fact have knowledge of the financial situation of the parties earlier than she asserts she did.
The letter to the wife dated 7 January 2010 from the Commonwealth Bank attaches copies of the letters of demand addressed to the husband. Those letters of demand set out the amounts which the bank says were owing by the husband on each of the accounts in default that are the subject of the letters of demand. The total outstanding debt was in the approximate sum of $648,000. There also appears to have been attached to that letter a copy of the wife’s guarantee. The attached guarantee sets out the “guaranteed agreement to which this guarantee initially applies” as “The credit contract resulting from the BORROWER’s acceptance of our offer dated ~~2 March 2009~~ 10 April 2000 for credit of $371500-” (changes initialled).
A further letter to the wife dated 18 January 2010 from the Commonwealth Bank sets out the following:
145.1.The details of the distribution of the sale proceeds from the sale of the property at P
145.2.The details of the remaining facilities guaranteed by the wife, including the outstanding amounts guaranteed
145.3.That the guarantee is supported by mortgage over the property at K
The wife asserted that she was given conflicting information from the bank, which was, in part, the subject of her complaint to the Financial Ombudsman. The wife’s evidence is she received information by letter from the Commonwealth Bank on 7 Jan 2010 and then 18 Jan 2010, each providing different information. However, it is unexceptional that the amounts were slightly different, given they show balances at different dates. Both letters show that in January 2010, the amount outstanding on one of the loans was in the sum of approximately $228,000 and on the other, in the approximate sum of $420,000 (total $648,000). This amount was guaranteed by the wife and that guarantee was supported by a mortgage over the property at K.
Counsel for the husband referred the Court to paragraphs of the wife’s affidavit sworn 4 May 2010 in which the wife says that she “had no details of any debts secured upon the home, that there had been no communications between she and the bank, that there were no loans that she had guaranteed, and there had been no claim by the bank against her”.
During counsel for the husband’s cross examination of her with regards to these statements, the wife agreed that she had sworn this statement but referred to her retraction of that statement in her affidavit sworn and filed 1 June 2010, where at paragraph 5 she says “Upon reviewing my records, I have found that the statement was not correct.” The wife goes on to refer to the letter dated 18 January 2010 that she had received from the bank.
The wife’s letter to the Financial Ombudsman shows that she asserted a range of reasons as to why she may have doubted the amount owing. However, although the wife lodged the dispute with the Financial Ombudsman on 31 May 2010, I have no evidence as to what the wife did in between receiving the conflicting information (in Jan) and making the complaint (end of May) in an attempt to sort out the situation.
The debt in the sum of $648,000 attracted 15.5 per cent per annum interest for over a year and eventually grew to $760,000, whilst the wife continued to occupy the home. I find the wife bears more responsibility for that than does the husband. In the circumstances of this case, it is most appropriate to take this matter into account at step two of the preferred approach (see Polonius & York [2010] FamCAFC 228 at paragraph 89). I will take the additional responsibility borne by the wife into account against her when making an adjustment based upon contributions.
The waste consideration relating to the increase in the mortgage aside, the husband can claim greater post-superannuation contributions arising out of the fact of his sole responsibility for the care of the child, including the sole responsibility for her financial maintenance.
I take into account the evidence that I have from the child’s treating psychologist, Ms C. Ms C has given evidence that the child has a post traumatic stress disorder and I accept her evidence. That evidence was not challenged by the mother when the mother had an opportunity to ask Ms C questions about that diagnosis. Ms C has seen the child on 21 occasions and the husband has been responsible for making payments in relation to those attendances.
Counsel for the husband submits that, post-separation, the husband has had the sole care of the child “without any meaningful contributions of a financial basis by the wife”. The child has lived with the husband since the date of the parties’ separation and has spent time with the wife on only limited occasions up to the end of 2009. The husband has paid $26,485.58 on account of the child’s school fees at J since the date of separation. The husband’s evidence is that he was unable to afford to pay all of the child’s school fees for the 2010 school year, resulting in an accrued debt to the school. The parties have, during the course of these proceedings, agreed to pay the overdue school fees relating to the child’s schooling at J in the sum of $22,686 from funds held in a controlled monies account on behalf of the parties. I have made an interim order for that to occur.
The wife has only paid $168 in child support since separation. The wife says that she made other contributions in addition to that amount of $168, such as purchasing clothes for the child. However, there is no evidence of any regular or substantial contributions.
There was some contest, in the course of the hearing, that the wife had applied to have her child support assessment decreased, as evidenced by a letter from the Child Support Agency to the father dated 15 June 2010. Whilst the wife does not dispute that this is in fact a letter from the Child Support Agency saying as much, her evidence in cross examination was that she did not request a reduction and this letter was due to an error. I accept that was so.
An amount of $18,000 was received by the wife subsequent to separation and deposited into the Bank of Queensland accounts. This amount was referable to work completed by her prior to separation.
I take into account that the wife has not recently been in paid employment and I also take into account that the wife has been particularly distracted by this ongoing litigation. The wife has relied substantially on income derived from boarders in her home in the sum of $540 per week.
The husband paid interest in respect of the credit card liabilities of the parties incurred during the period of cohabitation in the sum of $9,530.06. The wife has not contributed to the payment of these amounts due. Whilst the wife has made repayments on her David Jones store card, as mentioned previously, I cannot conclude that the amounts owing on this card are referable to the period of the parties’ cohabitation.

Conclusion based upon contributions

Taking the matters which I have discussed into account, I find that an adjustment should be made based upon contributions as to 55 per cent to the husband and 45 per cent to the wife.

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

The wife sought a further 20 percent adjustment in her favour (an overall adjustment of 90 percent/10 percent in her favour).
During the trial, the husband went to some trouble to place before the court evidence as to the wife’s use of alcohol, particularly during 2006. The wife accepted statements made in a report by a general practitioner, a Dr V, that in November 2006, results from a blood test indicated excessive alcohol ingestion and that at a second meeting with Dr V, the wife had admitted drinking two bottles of wine every night and using alcohol to help her sleep. The wife further conceded that her drinking behaviour was discussed with Dr V and Dr V advised her to cease alcohol completely in the short term. The wife also conceded that she had a discussion at that time (21.11.2006) with Dr V about obtaining help by way of counselling with a psychologist. The wife said she was unable to accept that advice at that time. The wife asserted in her sworn evidence that, although she was drinking two bottles of wine a day during that period, she would then sleep it off and she asserted that it did not affect her ability to function in her employment or as a parent. Ultimately, as I have already indicated, the husband did not seek to rely upon that evidence in respect of any issue in respect of contribution. The wife asserted in her evidence that she had not drunk alcohol (except for one occasion of celebration) since 26 April 2009. Counsel for the husband in final submissions sought to reply upon that assertion by the wife as evidence that the wife’s earning capacity was not in any way affected by any underlying difficulties that the wife clearly had in 2006.
I have had the opportunity to observe the wife over a period of two days of hearing during which I formed some apprehensions about the wife’s ability to function in a normal, organised and businesslike way. The wife’s presentation of her case however, at various times, was less than organised and her thought processes were less than clear. Having said that, the wife has experience as a consultant. I take into account the stress the wife was under in adopting the role as a self represented litigant and I conclude that when this case is behind her she will recover and produce a level of income sufficient to adequately support herself.
As I have already indicated, I have been unable to properly assess the history of the wife’s earning capacity. No personal tax returns were available in evidence during the hearing. The wife’s assertion about her gross earnings gives me little indication as to what her disposal income was as a result of her personal exertion or what it could be in the future
On the other hand, the husband’s future earning capacity is also less than certain. The husband had a time in a particular professional capacity but said he experienced difficulties that led him to conclude that he could no longer have such a career. He has the ongoing responsibility of looking after the child in the next four years or so. He writes for a publisher and appeared to be an intelligent man who had been significantly affected by the process which led to the breakdown of his marriage and the litigation that has subsequently followed.
Subject to what I say about the husband’s role in the child’s life, I am unable to conclude at the end of the day that either party has a superior earning capacity than the other.
I am mindful of the fact that the husband will receive 10 percent more of the net assets of the parties than will the wife, based upon my assessment of contributions.
I will deal with child support once I have finalised alteration of property, but suffice to say, whatever outcome that might bring, it would lead to a just and equitable adjustment between the parties in relation to their respective responsibilities for the financial support of the child in the future. Both parties are currently renting. I have no indication that either of them have difficulties with their health (apart from the possibility the wife is a recovering alcoholic).
The most important factor in weighing s 75(2) matters is the husband’s ongoing responsibility in relation to the child and the effect that might have on his ability to earn an income. The future difficulties the husband has in caring for the child are compounded by the fact that the child has post traumatic stress disorder. Her treating psychologist indicates that a minimal attendance for psychotherapy would be once a fortnight. I conclude that the child’s medical condition will add another layer of responsibility in the husband’s care for her.

Alleged financial non disclosure by the wife

The principles applicable in a situation of non-disclosure by one or more of the parties in the course of proceedings for property settlement are summarised by the Full Court in Chang v Su (2002) FLC 93-117 (see particularly paragraphs 67 - 73).
The husband did not suggest that any alleged non disclosure would lead to an adjustment by way of addback on the balance sheet. Consequently, if any adjustment is to be made for non disclosure by the wife, then it would be considered as a s 75(2)(o) FLA matter (see Gould & Gould [2007] FLC 93-333 at paragraphs 26 - 29).
Counsel for the husband submits that the wife has failed to comply with her obligations of disclosure, saying that the wife has failed to provide various documents that she was required to provide, including her personal taxation returns, financial reports of her consultancy business and other documents that would allow for the calculation of the parties’ capital gains tax liabilities. In his cross examination of her, counsel for the husband took the wife through various requests that have been made by the husband’s lawyers for disclosure of certain documents, including the following:
171.1.The solicitor for the husband’s letter dated 31 March 2010, enclosing the husband’s recent income tax returns and noting the wife’s non-disclosure of her own tax returns.
171.2.The solicitor for the husband’s letter dated 3 June 2010 requesting various financial documents and details of the wife’s financial position prior to the Conciliation Conference.
171.3.The solicitor for the husband’s letter dated 7 July 2010 noting the wife’s failure to make financial disclosure in accordance with the Rules and requesting the following documents said to be in the wife’s possession or control: the wife’s personal income tax returns and assessments and those relating to the wife’s consulting business; details regarding the boarders at [the property at K]; copies of the wife’s credit cards including the David Jones card; copies of all bank statements in the name of the wife and in the name of her company; documents relating to the loan application with Bank of Queensland; details of the wife’s income disclosed to be received in her loan application; and correspondence between the wife and the Commonwealth Bank within specified dates.
171.4.A Notice to Produce dated 14 July 2010 was included in these documents, requiring the wife to produce the stated documents (covered by the 7 July 2010 letter) at the Court on 20 July 2010.
171.5.The solicitor for the husband’s email dated 16 August 2010 noting that items that had not been produced on 20 July 2010 pursuant to the earlier Notice to Produce were required to be produced the following day, 17 August 2010, at Court.
171.6.The solicitor for the husband’s email dated 25 August 2010 enclosing further documents of the husband, noted the wife’s failure to disclose the requested documents pursuant to earlier correspondence and the Notice to Produce, and again requested those documents and others specifically mentioned in the email, including the wife’s interest in relation to any superannuation fund.
171.7.Directions made by Registrar Sanderson on 23 September 2010 directing the wife to produce by 5 October 2010 the documents requested by the husband’s solicitor in the husband’s Application in a Case filed 6 September 2010. The directions also set out specific documents to be produced.

Whilst the wife accepts that she has not provided all of the mentioned documents, she contests that she failed to provide certain of the documents that Counsel for the husband says she failed to provide. The wife says that she provided some of those documents by fax to the solicitor for the husband on 15 October 2010. There appeared to be disagreement as to the content of the documents faxed by the wife to the solicitor for the husband on 15 October 2010. The wife says that she faxed four bundles of documents. Counsel for the husband asserted that his solicitor received only one bundle. I have insufficient evidence to resolve that issue.
The wife also says in her affidavit filed 12 October 2010 that “[the husband] has most of my available financial material – about the only documents he doesn’t have are copies of my Bank of Queensland bank statements but these were subpoenaed by his lawyers and inspected by them. I think [the husband] has originals of my CBA statements because [the husband’s] lawyers have provided copies of some of these to my lawyers who were acting at the time and I don’t have the originals.”
In that affidavit, the wife also mentions that certain of the documents (the Bank of Queensland statements) that were provided to the Court by her, went missing from the Registry and that the wife provided these again to the Court. The cover letter to the documents from the bank indicates that this was the case. However, at most this could have caused minor delay in the wife providing those documents. It would not account for the extent of the absence of disclosure submitted by counsel for the husband to have occurred.
With the exception of the documents which the wife asserts she did provide on 15 October 2010, the wife concedes that she has not disclosed all of the requested documents as required. The wife’s evidence is that she tried to provide the requested information but that she “couldn’t keep up”. The wife’s evidence is that she did “not have the time given other requirements, including cleaning and clearing the house to be presentable for public openings”. The wife also gave evidence to the effect that she believed that the continual requests for documents were deliberately intended to make the proceedings difficult for her.
Counsel for the husband noted that the documents provided by the wife on 15 October 2010, namely the Bank of Queensland Number 2 account statements, were only provided in response to a subpoena.
At the end of the day the lack of financial disclosure by the wife, I find, is partly as a result of disorganisation that she has experienced arising from the emotions of the separation and this litigation and partly as a deliberate strategy that she has adopted in not making the litigation easy for the husband. Whatever the motivation, the effect has been that the husband has struggled to obtain information from the wife that she should have provided. I do not however conclude as a result of that history, that there are any significant assets in the wife’s hands that she has hidden. In that regard I should note that the $8,000 that she took out and held in a bank cheque for a period of time was eventually deposited back into an account that the wife controlled.

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

It seems, so far as can be predicted at this time, that the father will fulfil the role as sole parent to the child into the future. As I have said, when weighing all the matters under s 79(4)(d) - (g), that matter is the most significant. I find that the husband should receive a further adjustment of 5 percent in relation to s 79(4)(d) - (g) matters.

JUST AND EQUITABLE

The husband is in as much need of capital as the wife and consequentially a splitting order should be made in relation to his superannuation. I do reject the wife’s assertion that she should receive capital in lieu of superannuation.
Based on my findings in relation to contributions and s 79(4)(d) - (g) matters, the net assets of the parties would be divided as to 60 percent to the husband and 40 percent to the wife.
That division can be achieved in the following way:

Husband gets 60.0%

Assets

Item No. Description Percentage Value

1 Amount in controlled monies account from sale of [property at K] @ 31.1.11 $428,481

3 Release of part deposit [property at K] - partial property settlement 100% $22,199

6 Release of part of proceeds of sale of [property at K] 100% $85,000

8 2007 BMW […] 100% $42,600

9 308 IAG shares @21.1.11 (in the name of [M Discretionary Trust]) 100% $1,146

10 Commonwealth Bank accounts […] and […] @ 14.12.10 100% $8

11 2 shares in [M Pty Ltd] trustee only 100% $2

15 Contents 100% $1,500

19 OnePath - Integra Retirement Plan 100% $34,349

20 [L Super Plan] (MLC Masterkey) $8,717

17 Addbacks - 50% of $14,800 100% $7,400

Liabilities

Item No. Description Percentage Value

22 Citibank Platiinum 100% $49,861

23 ANZ low rate Mastercard […] 100% $17,436

24 ANZ Frequent Flyer 100% $5,683

25 Esanda Finance 100% $56,346

26 [J] school fees 50% $11,343

Husband receives $0

Net Assets to H $490,733

Wife gets 40.0%

Assets

Item No. Description Percentage Value

1 Amount in controlled monies account from sale of [property at K] @ 31.1.11 $150,527

2 Release of part deposit [property at K] - partial property settlement 100% $22,199

4 Payment Watts McCray on settlement - partial property settlement 100% $33,273

5 Release of part of proceeds of sale of [property at K] 100% $85,000

7 2000 Mercedes Benz […] 100% $15,000

13 [N Pty Ltd] 100% $0

14 Contents & Jewellery 100% $4,000

20 [L Super Plan] (MLC Masterkey) $24,500

21 Care Super 100% $4,000

Liabilities

Item No. Description Percentage Value

26 [J] school fees 50% $11,343

Net Assets to Wife $327,156

Standing back I find that that distribution of the assets, liabilities and superannuation produces a result that is just and equitable between the parties.

Child support

There are two claims in relation to child support. The first is for a variation to the current assessment of periodic child support. The husband asserts that the litigious nature and history between the parties since separation would point in the direction of there being some certainty created in the next four years as to the amount the wife was required to pay for the child’s support. The husband seeks that the wife pay an amount of $1,500 per month (without indexation) until the child is 18 years of age or has completed secondary education, whichever date is the later date.
The husband seeks that there be a departure from the administrative assessment. The general approach to be applied under s 117 Child Support (Assessment) Act is discussed in Gyselman (1992) FLC 92-279.
The ground for departure in this case, as asserted by the husband, is that in the special circumstances of the case, the current assessment results in an unjust and inequitable determination of the level of financial support to be provided for the child because of the earning capacity of the wife. I find that the current assessment is not commensurate with the wife’s earning capacity. Consequently, an appropriate ground exists pursuant to s 117(2)(c)(ib) Child Support (Assessment) Act.
I take into account all the matters referred to in s 117(4), but in particular the assets that the parties will receive as a result of orders made in respect of alteration of property interests; the nature of the duty of both parents to maintain the child and the hardship that would be caused to the child or the husband if the order was not made.
In respect of the child’s needs, the husband in his financial statement sets out a list of weekly expenses which totals $817 (page 11 of his financial statement filed 11 November 2010). In addition, the husband is paying rent in the sum of $700 per week and part of that expense must relate to the child’s upkeep. In final submissions, the wife made some comments about some of the expenses but not comments that would detract from the unchallenged evidence provided by the husband. I accept that the child’s needs are as stated by the husband and that he has established the need for a weekly payment from the mother less than one half of those expenses.
I have concluded that the earning capacities of the parties, looking into the future, must be considered to be equal. I am attracted strongly to the idea that the litigation between the parties should be limited so far as possible (in that regard I am mindful of the legal fees the husband has incurred.
I am satisfied that the wife has reduced the number of hours per week of her work below the number of hours that constitutes full time work for the occupation for which she is engaged; but this is not as a result of her caring responsibilities as a parent or her state of health; and that the wife has not demonstrated that it was not a major purpose of this decision not to work full time, to affect the administrative assessment of child support in relation to the child. Consequently I am satisfied that the order as sought by the husband is just and equitable as regards the child, the wife and the husband. The primary duty to maintain a child is imposed upon the parents and not on the community and I find that it is otherwise proper to make the order sought for periodic payments.
Consequentially, I find that the amount of the order as sought by the husband for periodic payments should be made. I also find, in the circumstances of this case, with the aim of preventing further litigation between the parties, that it is appropriate to make that order until the child reaches the age of 18 or completes secondary education.

J (school)

The wife agrees that, at least for the present time, it would be appropriate for the child to remain at J. I take into account the evidence of her treating psychologist that it would be in the child’s interest to remain at that school.
The wife’s case in that regard is that the parties simply cannot afford to continue that commitment but considering the earning capacity of both parties, I am unable to agree that that is so.
The wife additionally submits that she is more worried about the child’s tertiary education than her secondary education and wants monies to be available for the payment of university fees (I am unable to place any weight on that submission. I accept the submission by counsel for the husband that the more important priority is to ensure that the child is able to get through her secondary education before an eye is turned to tertiary education).
The husband wants some certainty that the wife will make a contribution to the child’s future school fees.
It is the husband’s case that if $120,000 was put aside in a controlled monies account then that would be sufficient to look after school fees until the child completes her secondary education.
The wife will receive $150,500 in cash from the controlled monies account. She has liabilities of about $5,700.
I find it would be just and equitable and otherwise proper to set aside $100,000 towards securing the child’s future education (which at the current time is at J) and for the parties to each contribute to that fund in the percentages in which I have divided the net assets between the parties (60 percent from the husband and 40 percent from the wife).
In doing so, I take into account:
198.1.The order I will make for periodic payments.
198.2.The financial circumstances of both the parents.
198.3.The mother’s earning capacity (see earlier discussion).
198.4.The nature of the duty of a parent to maintain a child.

I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 March 2011.

Associate:

Date: 2.3.2011

[2011] FamCA 140

2 March 2011

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Remedies

Jurisdiction

Statutory Construction

Costs

Husband gets 60.0%
Assets
Item No.	Description	Percentage	Value
1	Amount in controlled monies account from sale of [property at K] @ 31.1.11	$428,481
3	Release of part deposit [property at K] - partial property settlement	100%	$22,199
6	Release of part of proceeds of sale of [property at K]	100%	$85,000
8	2007 BMW […]	100%	$42,600
9	308 IAG shares @21.1.11 (in the name of [M Discretionary Trust])	100%	$1,146
10	Commonwealth Bank accounts […] and […] @ 14.12.10	100%	$8
11	2 shares in [M Pty Ltd] trustee only	100%	$2
15	Contents	100%	$1,500
19	OnePath - Integra Retirement Plan	100%	$34,349
20	[L Super Plan] (MLC Masterkey)	$8,717
17	Addbacks - 50% of $14,800	100%	$7,400
Liabilities
Item No.	Description	Percentage	Value
22	Citibank Platiinum	100%	$49,861
23	ANZ low rate Mastercard […]	100%	$17,436
24	ANZ Frequent Flyer	100%	$5,683
25	Esanda Finance	100%	$56,346
26	[J] school fees	50%	$11,343
Husband receives			$0
Net Assets to H			$490,733
Wife gets 40.0%
Assets
Item No.	Description	Percentage	Value
1	Amount in controlled monies account from sale of [property at K] @ 31.1.11	$150,527
2	Release of part deposit [property at K] - partial property settlement	100%	$22,199
4	Payment Watts McCray on settlement - partial property settlement	100%	$33,273
5	Release of part of proceeds of sale of [property at K]	100%	$85,000
7	2000 Mercedes Benz […]	100%	$15,000
13	[N Pty Ltd]	100%	$0
14	Contents & Jewellery	100%	$4,000
20	[L Super Plan] (MLC Masterkey)	$24,500
21	Care Super	100%	$4,000
Liabilities
Item No.	Description	Percentage	Value
26	[J] school fees	50%	$11,343
Net Assets to Wife			$327,156