Perez& Fouger - [2018] FamCA 444

FAMILY COURT OF AUSTRALIA

PEREZ& FOUGER

[2018] FamCA 444

FAMILY LAW – PROPERTY – De facto relationship – Where the husband seeks by way of a case guardian that he receive 70 per cent of the asset pool – Where the wife seeks that the asset pool be equally shard between the parties – Where the husband was involved in a serious motor vehicle accident prior to separation – Where the husband received a significant compensation payment for injuries sustained in that motor vehicle accident – Where the use of the compensation money prior to separation is in dispute – Where the husband purposefully dissipated the compensation money following separation – Where the wife has some entitlement to the compensation money – Where the parties contributions up until the husband’s accident were equal – Where the wife made a slightly greater contribution to the asset pool following the husband’s accident – Where the husband has failed to make full disclosure as to his financial position and employment – Where the husband’s evidence as to his employment and future capacity for work is less than satisfactory – Where the husband adduces limited medical evidence as to his health – Where the wife has had the benefit of the sole use of an interim property distribution – Where such distribution should be considered under s90SF(3) and not as an add back – Where a small adjustment in favour of the husband is warranted for s90SF(3) factors – Where the asset pool should be distributed equally between the parties – Where the husband to pay the wife to effect such distribution – Where the wife seeks to retain the former matrimonial home – Where the wife should be given the opportunity to buy the husband’s share of the former matrimonial home – Orders made accordingly.

Civil Liability Act 2002 (NSW) s 15
Family Law Act 1975 (Cth) ss 79(4), 75(2)90SF, 90SM
Family Law Rules 2004 (Cth) dictionary

AJO & GRO (2005) FLC 93-218; [2005] FamCA 195 Bevan & Bevan [2013] FamCAFC 116 Black & Kellner (1992) FLC 92-287 Fontana & Fontana [2017] FamCA 374 Fontana & Fontana [2018] FamCAFC 63 Griffiths v Kerkemeyer (1977) 139 CLR 161 Kowaliw & Kowaliw (1981) FLC 91-092 NHC & RCH (2004) FLC 93-204; 32 Fam LR 518; [2004] FamCA 633 SMB & MFB [2006] FamCA 46 Scott & Scott (1994)FLC 92-457 Stanford & Stanford (2012) 247 CLR 108 Thornton & Thornton and Anor [2016] FamCAFC 61 Toft & Royce [2013] FamCA 372 Watson & Ling [2013] FamCA 57 Williams & Williams [2007] FamCA 313
APPLICANT:	Mr Perez

RESPONDENT:

Ms Fouger

FILE NUMBER:

PAC

3450

2015

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

19, 20 & 21 September 2017, 24 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Longworth

SOLICITOR FOR THE APPLICANT:

Brydens Lawyers

COUNSEL FOR THE RESPONDENT:

Ms DeVere

SOLICITOR FOR THE RESPONDENT:

Taylor and Scott Lawyers

Orders

That within 56 days from the date of these Orders, the Husband shall transfer to the Wife all his right, title and interest in the jointly owned property known as and situate at B Street, Suburb C in the State of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier … (“the Suburb C Property”).
That simultaneously with the transfer by the Husband to the Wife in accordance with Order 1 herein, the Wife shall:
(a)       do all acts and things and sign all such documents necessary to discharge the mortgage to the D Bank Limited secured against the Suburb C Property (registered no. …) (“the D Bank Mortgage”); and
(b)       pay the Husband the sum of $268,277 (“the Capital Sum”); and
(c)       indemnify and keep indemnified the Husband in relation to any and all encumbrances, debts, taxes, imposts, outgoings and/or utilities secured against or in relation to the Suburb C Property.
That in the event the Wife fails to comply (or gives the Husband prior notice she cannot comply) with Order 2 herein, the Parties shall do all acts and things and sign all documents necessary to list for sale by public auction (after no more than a four-week marketing campaign at first instance) and thereafter sell the Suburb C Property as follows:
(a)       within seven days from the date of the Wife’s non-compliance or providing the Husband prior notice she cannot comply with Order (2) herein, the Husband shall nominate two listing agents and two conveyancers in writing to the Wife and provide her copies of those individuals’ cost agreements and/or other relevant documents relating to their possible retainment;
(b)       upon receipt of the documents from the Husband referred to in Order (3)(a) herein, within seven days thereafter the Wife shall nominate one of each those listing agents and conveyancers and sign all necessary documents to enable the listing of the Suburb C Property by public auction and a contract for the sale of land to be prepared and return copies of same to the Husband, which he must then also sign and provide evidence to the Wife he has submitted such documents to each of the nominated listing agent and conveyancer within seven days of receipt;
(c)       in the event the Husband fails, refuses or neglects to comply with Order (3)(b) herein the Wife shall have carriage of the sale of the Suburb C Property to the exclusion of the Husband and this order shall serve as an authority for the listing agent and conveyancer chosen by the Wife, to accept the instructions and signature of the Wife in place of that of the Husband;
(d)       the Parties shall set the auction reserve price at $770,000 unless otherwise agreed in writing; and
(e)       the Parties shall accept the highest offer made on the day of the auction within 5 per cent of the reserve price, unless otherwise agreed between them in writing.
That in the event the Suburb C Property is passed in at the first auction, the Parties shall subject it to successive auctions with a reserve price of 5 per cent lower than the immediate preceding auction until sold, with each auction being no more than six weeks apart, unless otherwise agreed in writing.
That notwithstanding the provisions for sale in Orders (3) and (4) herein, the Parties shall be at liberty, if agreed in writing, to sell the Suburb C Property at any time to any purchaser.
That pending settlement of the sale of the Suburb C Property in accordance with these Orders, the Husband shall be entitled to exclusive occupation of the said property and shall:
(a)       keep and maintain the property in good order;
(b)       follow the listing agent’s advice, as far as practicable, to ensure the property is tidied and cleaned to make it presentable for inspection and sale;
(c)       co-operate with the listing agent including providing a key to him/her when requested, allowing inspections at all reasonable times;
(d)       make all required mortgage repayments (principal and interest) on the D Bank Mortgage as and when same falls due and in the event the Husband fails, refuses or neglects to make such repayments, such equivalent amounts required to be paid by him shall be deducted from the Husband's share of the balance of the net sale proceeds prior to him receiving such share otherwise payable to him; and
(e)       Provide vacant possession of the property prior to or on the completion of the sale with such completion date to be not more than the standard six week period from exchange, unless otherwise agreed in writing.
That pending completion of the sale of the Suburb C Property, in accordance with these Orders:
(a)       the Parties be restrained from encumbering, further encumbering or in any way dealing with the said property, including increasing the indebtedness of any mortgage or loan secured against the title of same;
(b)       the Husband is to promptly pay or cause to be paid, and is hereby held exclusively liable to the exclusion of the Wife in respect of all outgoings, Council and Water rates, expenses and utilities (including arrears) charged or levied against, or in association with, the said property, as and when such debts fall due and payable; and
(c)       in the event the Husband fails, refuses or neglects to comply with Order (7)(b) herein, such amounts required to be paid by him shall be deducted from the Husband's share of the balance of the net sale proceeds prior to him receiving such share otherwise payable to him.
That from the date of these Orders, the Husband shall indemnify and keep indemnified the Wife in relation to any and all encumbrances, debts, taxes, imposts, outgoings and/or utilities secured against or in relation to the Suburb C Property.
That, if applicable, upon settlement of the sale of the Suburb C Property, the proceeds of sale shall be distributed in the following manner and priority:
(a)       firstly, in payment of the selling agent’s commission, auction expenses and all reasonable costs incurred in advertising the Suburb C Property;
(b)       secondly, in payment of the conveyancer/solicitor’s costs in respect of the sale;
(c)       thirdly, in payment to discharge the D Bank Mortgage;
(d)       fourthly, in payment or adjustment of all Council rates, water rates and utility expenses in respect of the Suburb C Property; and
(e)       fifthly, as to the remaining balance:
(i)50 per cent to the Husband less $28,000 and subject to Orders (6)(d) and (7)(c) herein; and
(ii)50 per cent to the Wife plus $28,000.
That except as specifically provided for by these Orders and to the contrary:
(a) the Husband is declared to be the sole owner and the Wife has no interest in any and all property and/or financial resources in the Husband's name, possession or control; and
(b) the Wife is declared to be the sole owner and the Husband has no interest in any and all property and/or financial resources in the Wife's name, possession or control.
That except as otherwise specifically provided for by these Orders and to the contrary:
(a) the Wife indemnify and keep indemnified, and releases and holds harmless, the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to any liabilities in the name of the Wife; and
(b) the Husband indemnify and keep indemnified, and releases and holds harmless, the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to any liabilities in the name of the Husband.
That in the event the Husband or the Wife fails, refuses or neglects to sign any documents necessary to give effect to these Orders then a Registrar of the Family Court of Australia at Parramatta is appointed, pursuant to Section 106A of the Family Law Act1975 (Cth) to sign any document necessary to give effect to these Orders instead of the party in default and the other party shall be at liberty to make an application for costs arising in respect of the default.
That each party has liberty to apply as to the implementation or enforcement of these Order upon giving seven days’ written notice to the other.
That any application for costs be made by way of written submissions filed directly with chambers within 14 days from this date with any submissions in response to be filed directly with chambers within a further 7 days with judgment to be reserved thereafter.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3450 of 2015

Mr Perez

Applicant

And

Ms Fouger

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the division of property following the breakdown of a 19 year de facto relationship between Ms Fouger (“the wife”) and Mr Perez (“the husband”).
The husband by way of his case guardian seeks orders that the wife transfer her interest in the former family home to him and he pay her a sum equivalent to 30 per cent of the parties’ net assets and liabilities.
The wife seeks orders that would see the parties’ property be equally shared between them though she contends for the inclusion of more assets for division than does the husband.
Both parties seek an order that the other pay their costs.
The question for me to determine is whether it is just and equitable to vary the property interests of the parties, and if that is to occur, the proportions in which that property should be divided.

Background

The husband who is 43 and his de facto wife who is 41 began living together in 1994 when the wife was in her final year at high school and pregnant with the parties’ first child.
When the relationship began the wife did not have any assets or liabilities of substance. The husband owned a property (“the husband’s property”) which was mortgaged. The value of the husband’s interest in that property when the parties began living together is unknown but the deposit for the property came from a compensation payout received by the husband in 1993 related to a motor vehicle accident he was involved in as a minor in 1979.
When the parties began living together the husband was employed full time. The wife was completing her final year of high school and late that year gave birth to the parties’ older son. The older son is now 23 years of age.
Initially the parties lived in the husband’s parents’ home and then rented premises. The husband’s property was leased and the rent was used to pay the mortgage on that property.
A second son was born to the parties in 1996 who was 21 at the time of the final hearing.
The family then lived at the husband’s property from around 1997.
In August 2001 the husband sold his property and the parties together purchased a property for $285,000 which became their family home (“the family home”). This property was subject to a mortgage in joint names.
The husband was employed as a tradesman in a business owned by his family throughout the parties’ relationship until September 2006. The husband also operated a side business.
The wife was responsible for the care of the children and remained at home full-time at least until the older son began school. During this time the wife also received a government benefit which she utilised for the payment of expenses for herself and the children. It is not clear that the wife was lawfully entitled to this benefit.
When the older child commenced school the wife began working part-time and maintained her shifts around the need to care for the children.
Until about October 2009 the parties maintained separate bank accounts. The husband’s income was paid into his account from which he made mortgage payments while the wife’s income was used to pay family and household expenses.
The husband was involved in a motor bike accident in 2006 in which he sustained a serious brain injury and was in hospital for a number of months. The wife’s mother moved into the family home to assist in relation to the care of the children.
The wife who had worked part-time until the husband’s accident resigned from work and attended upon the husband each day at the hospital and assisted in his care following discharge from hospital. Although there is a dispute between the parties as to the extent of the assistance provided by the wife to the husband, there is no dispute that she was primarily responsible for caring for the children and managing the household at all times during the relationship.
After some period of absence from work the husband returned to some form of employment though there is a dispute in relation to this issue also. Both matters are considered at greater length later in these Reasons.
The wife obtained professional accreditation in 2008, becoming commencing work shortly afterwards. All of the wife’s salary was used to pay expenses in relation to the household and family.
In 2008 the husband commenced proceedings in the District Court seeking compensation in relation to his accident.
In October 2009 the husband’s District Court proceedings were settled and he received a payment of just over $1 million (“the compensation payment”). The parties opened their first joint bank account at this time.
$185,000 from the compensation payment was applied to discharge the mortgage over the family home in 2009. The compensation payment also was used as a deposit on an investment property (“the investment property”) and to fund a deposit on an off-the-plan property which was later refunded as the parties did not proceed with that purchase.
In 2012 the parties also began a business though the funding for this is a matter in dispute to which I will return. The wife was involved in the conduct of the business with her sister-in-law from 2012.
The balance of the compensation payment ($646,750) was invested in an account with D Bank Life (“the D Bank Investment Account”) in the husband’s name.
Each party contends there were periods of separation throughout their relationship but do not agree on the dates and duration of these periods of separation. The parties separated on a final basis in August 2013.
At the time of separation there was a balance of $489,000 in the D Bank Investment Account.
Following separation the wife moved out of the family home where the husband remained living with the parties’ two sons (who were then aged 19 and almost 17). Each son’s partner (and some other family members of the younger son’s partner) also lived at the former family home at the time of separation.
A short time after separation the husband gave or lent $45,000 to the parents of the younger son’s partner and these people then moved out of the family home.
There is a significant dispute between the parties about the husband’s capacity for work and level of engagement in employment after separation, which is a matter considered later in these Reasons.
In December 2013 the parties sold the investment property. Proceeds of this sale amounting to $17,375 were paid into a controlled monies account held by the wife’s solicitors.
In February 2014 the husband loaned $100,000 to a friend.
In late 2014 the business was sold for $90,000.
In 2014 the husband had a brief relationship with a woman named Ms E. The husband gave or loaned $60,000 to Ms E and $50,000 to Ms E’s brother.
On 15 July 2015 the husband commenced these proceedings. At about this time the younger son moved out of the family home. The older son now aged 23 has continued to live at the family home with his partner and the husband.
By November 2015 the balance of the D Bank Investment Account had reduced to $108,784.
The husband spent $12,350 on renovations to the family home in February 2016.
On 18 July 2016 the husband’s brother, Mr F Perez, was appointed case guardian for the husband for the purpose of these proceedings with the consent of the wife. Further orders were made by consent on that date for the balance of the controlled monies account held on behalf of the parties ($67,515.93) to be paid to the wife by way of interim property settlement. The husband was also restrained by orders made on that date from loaning or gifting money to any person and dealing with his D Bank investment account. It was noted at the time the orders were made that the balance of the D Bank Investment Account was approximately $75,000.
In September 2017 the final hearing proceeded over three days. The parties were ordered to forward written submissions to chambers and the matter was listed for oral submissions on 12 October 2017.

Written submissions were received from both parties and after hearing submissions on 12 October 2017 judgment was reserved.
On 27 November 2017 the wife filed an Application in a Case seeking to reopen the proceedings which was opposed by the husband.
The wife’s application to re-open the proceedings was listed before me on 24 January 2018 but resolved by orders made with the consent of the parties that the proceedings be re-opened. Judgment was finally reserved on that date.

The Law and Discussion

The approach to the determination of an application for property settlement orders is set out in Stanford v Stanford[1], which was considered in detail by the Full Court in Bevan & Bevan[2].
[1] (2012) 247 CLR 108
[2] [2013] FamCAFC 116
The starting point is a consideration of “whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property”[3].
[3] Stanford & Stanford (2012) 247 CLR 108 at [37].
Once the existing interests have been identified I must then consider whether having regard to the particular circumstances before me, it would be just and fair to make orders for the alteration of those interests.
If it is just and equitable to make such orders I must next consider the matters set out in s 90SM(4)(a) to (c) of the Family Law Act 1975 (Cth) (“the Act”), that is the financial and non-financial contribution made by the parties to the property and to the welfare of the family constituted by the parties.
I must then consider the remainder of the matters in s 90SM(4) including the matters referred to in sub-section 90SF(3) so far as they are relevant, and determine on this basis whether there should be a further adjustment to the parties’ contribution-based entitlements.
Finally, I must then consider the justice and equity of the proposed orders. As was said in Bevan (supra) at [86], the just and equitable requirement is “not a threshold issue, but rather one permeating the entire process”.
It is to be noted that sections s90SF(3) and 90SM(4) are in almost identical terms to sections 75(2) and 79(4) of the Act respectively and the case law dealing with sections 75(2) and 79(4) and married couples is therefore equally applicable to de facto relationships.

What are the existing interests of the parties?

Although there is agreement between the parties as to many of the assets and liabilities I am required to make findings concerning some particular issues.
In addition to the former family home, the husband’s D Bank Investment Account and two vehicles about which there is no dispute, the wife also seeks to have a car owned by the husband included when considering the existing property interests of the husband. The wife also contends that sums advanced by the husband to various friends and associates in 2014 and 2015 should be characterised as loans owing to the husband and thus be treated as assets in his hands.
The husband also seeks to include the sum of $67,516 paid to the wife by way of partial property settlement in July 2016 in the property to be divided between the parties.
Discussion and findings in relation to these items are as follows.

Two vehicles owned by the husband

There is no dispute between the parties that there are a number of cars registered in the husband’s name including motor vehicle 1 which is used by the older son and motor vehicle 2 which is used by the younger son. Motor vehicle 1 was purchased a few months prior to separation. The husband’s valuation of motor vehicle 1 of $7,000 in his Financial Statement is accepted by the wife and the parties agree that motor vehicle 2 has no value.
Neither party seeks to include motor vehicle 2 as an asset in the hands of the husband. The husband seeks to have motor vehicle 1 excluded from the balance sheet on the basis that it has been treated and understood by the parties to be the older son’s car.
According to the husband’s own evidence motor vehicle 1 was purchased by him just prior to separation, is registered in his name and most of the outgoings in association with it are borne by him. The husband’s consent to this car being utilised by his son provides no good reason to exclude it from the balance sheet as an asset in the hands of the husband.

Sums paid by the husband to friends and associates

The wife also seeks to characterise as assets and include in the balance sheet a number of loans made by the husband to various people after separation. The husband says that only one of these sums can be properly treated as a loan and that it has been largely repaid. He contends that the other sums be treated as monies that he has given away.
The first of these sums, in the amount of $100,000 was advanced by the husband to a friend, Mr G in February 2014. The husband says that this sum was a loan and subject to a loan agreement and that Mr G has repaid $75,350 through an entity controlled by him (H Pty Ltd).
The husband concedes that the amount outstanding on the loan is at least $24,650. However, it is argued that as the loan is unsecured, there have never been regular or consistent payments and the last payment was made in March 2017 the court should conclude that it is unlikely that the balance will ever be recovered. Further, he contends that the tenor of the wife’s own evidence concerning this loan is that she is suspicious about the circumstances in which it was made and of Mr G himself, and thus accepts it is unlikely to be paid.
The wife contends that the $75,000 already repaid by Mr G be “added back” to the property pool, and that the $25,000 outstanding be characterised as the husband’s asset and be included on this basis. She therefore contends that the entire $100,000 be brought to account in the proceedings.
The next sum of money that the wife seeks to treat as a loan is a sum of $60,000 which the husband says he gave to Ms E with whom he was in a relationship at the time the loan was advanced (about late 2014 or early 2015). The husband deposes to withdrawing $60,000 from the D Bank Account and giving it to Ms E for the purposes of some court proceedings in which she was involved. He says that at this stage he had known Ms E for approximately four months and a short time after transferring the money to her she ended the relationship. He deposes that although he asked Ms E to repay the money and she agreed to do so, none of it has been repaid and he has been unable to contact her since July 2016. The husband says he has no means of contacting Ms E and has no expectation that the money will be repaid.
The husband also deposes to giving Ms E’s brother a number of unspecified sums of money totalling approximately $50,000. He says he gave this money to Mr J from time to time in accordance with Mr J’s requests. The husband says that although Mr J promised to pay him back, he has not received any repayment. The husband says that he has attempted to contact Mr J but his calls are unanswered and that he also has concerns contacting Mr J who he regards as intimidating. There was other evidence given in the proceedings that Mr J assaulted the husband in the past.
The husband does not give any account in his affidavit of giving or lending money to the parents of the younger son’s girlfriend. The suggestion that he had given or lent $45,000 to these people when they were living in the family home with the husband and his sons after separation arose in the wife’s evidence. The wife adduced this evidence by annexing a text message interchange between herself and the husband in about February 2017 in relation to the matter. Under cross-examination the husband confirmed that he had lent this money to these people but none of it had been repaid and there was no prospect of him receiving it from them.
Mr G, Ms E, the younger son’s partner’s parents and Mr J were not witnesses in the proceedings.
In my view, it would not do justice between the parties to treat the money given or lent in any of these transactions as loans or assets in the hands of the husband for the following reasons.
It would in my view be artificial and unrealistic to take into account that the time limit in which to seek to recover the funds advanced has not expired and find that there is some prospect for the sums to be recovered as contended by the wife.
None of the other parties to these transactions gave evidence in the proceedings so the only evidence as to the loans comes from the husband himself. Each transaction appears on the husband’s account or the version accepted by him under cross-examination to have been a loose arrangement whereby he have gave money to other people without any arrangements for its repayment or any genuine expectation that would occur. With the exception of the loan to Mr G which does appear to have been supported by a loan agreement and to a large extent repaid, the circumstances in which he gave sums of money away to various people appears consistent with the husband’s agreement under cross examination that he intentionally reduced the balance of his D Bank Investment Account.[4]
[4] Cross examination of the husband by counsel for the wife at 2.57 – 2.58 pm on 19 September 2017.
I am of the view that it is more appropriate to treat the dispersal of these sums totalling $255,000 as funds that the husband had at his disposal which he treated solely as his to give away. This follows the approach taken in Fontana & Fontana[5] in which Foster J determined that over $400,000 in unexplained or wasteful spending of the husband post separation was to be treated as an asset utilised by the husband for his sole benefit. While this issue was not the subject of appeal, the Full Court made no comment on Foster J’s approach when dismissing the husband’s appeal and generally found Foster J’s approach and findings to be comfortably within the scope of judicial discretion.[6]
[5] [2017] FamCA 374
[6]Fontana & Fontana [2018] FamCAFC 63
The $75,000 which was lent to Mr G and repaid has also been spent by the husband. This sum is also treated as an asset utilised by the husband for his sole benefit.
In determining that the dispersal of these amounts totalling $225,000 were funds the husband had at his disposal which he dealt with for his sole benefit, I reject the proposition advanced on the husband’s behalf that he was unconscionably taken advantage of by the people to whom he made these payments and he is not therefore to be regarded as responsible for this reduction in the assets available to the parties for distribution. This contention which is part of a greater argument concerning the dissipation of the D Bank Investment Fund is a matter to which I will return.

The payment of $67,515 to the wife

On 18 July 2016 orders were made with the consent of the parties for the withdrawal of the balance of money held in a controlled monies account to be deposited into the wife’s solicitor’s account and that such sum be “categorised as part of the wife’s partial property settlement”.
The controlled monies account comprised the refund to the parties of the deposit on the off the plan investment property that did not proceed and the net proceeds of the sale of the parties’ investment property. The deposits for both properties had been funded out of the husband’s compensation payment.
The wife’s affidavit in support of the application for the July 2016 orders was admitted in the final hearing. In that affidavit the wife deposes to seeking access to the funds to pay her legal fees and reduce indebtedness which itself related in part to day to day expenses such as credit card purchases. She deposes to having limited access to funds, as opposed to the husband who has had unfettered access to the monies in the D Bank Investment Account.
In August 2016 the wife received the sum of $67,515.93 from the controlled monies account. $14,537 of this sum was used by the wife to repay the balance outstanding on two credit cards and $11,650 was placed by her in a bank account which she says was utilised for living expenses over the following months. Transactions on that account between August and November 2016 are consistent with withdrawals for living expenses. The wife was not challenged under cross-examination that she had spent $26,263 at that time on payment of credit card debt and reasonable living expenses (although she was challenged about her expenditure around the time of the final hearing).
Although it is not completely clear on the wife’s evidence, the final hearing proceeded on the basis that she spent $30,000 of the interim property settlement on payment of her legal fees.
The wife concedes that the sum of $30,000 could either be added back to the asset pool or taken into consideration as a relevant matter pursuant to section 90SM(4)(r) but submits that the Court ought not add this amount back into the pool.
It is contended on behalf of the husband that as the orders made with the consent of the parties on 18 July 2016 described the payment to the wife of money held in a controlled monies account as “part of the wife’s partial property settlement” (emphasis added) the wife cannot now characterise this payment in any other manner. On this basis it is contended that the entire $67,515 paid to the wife be added back into the property pool.
It is also submitted on behalf of the husband that if the Court were to re-characterise the payment to the wife as anything other than a partial property payment this would permit the wife to change the basis upon which the case was run which would be procedurally unfair to the husband. In this regard the husband relies upon the wife including the entire $67,515 as her asset in her list of assets and liabilities in her Case Outline.
The Outline of Case filed on behalf of the wife for the purposes of the final hearing does list the “balance of the controlled monies account as at 24 May 2016” ($67,515) as an asset of the wife. Although the parties had been ordered to file a joint balance sheet prior to the commencement of the final hearing this direction was not complied with and each party’s balance sheet was clearly a draft document which was refined as the proceedings progressed. There were many assets and liabilities listed by both parties which were not pressed when the balance sheet was discussed and the various contentions refined at the outset of the case. It was clear from an early stage in the proceedings that the dispute related to the inclusion of the entire sum in the assets available for distribution and the concession was made on the wife’s behalf that if any sum was to be added back or taken into account this should only be the $30,000 spent on legal fees.
A consideration of the authorities in relation to the manner in which interim property payments are to be treated does not lead me to treat the entire sum of $67,515 as an amount which should be “added back” as sought by the husband.
The Full Court in NHC & RCH[7]set out in great detail the various approaches that had been taken by the Court to “adding back” various interim payments to and monies expended by the parties. In summarising the various authorities as to the payment of legal expenses the Full Court said the following :
[7](2004) FLC 93-204;32 Fam LR 518;[2004] FamCA 633
56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
59. Outstanding legal fees themselves are generally not taken into account as a liability.
60. If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.
In AJO & GRO[8] the Full Court, citing NHC & RCH (supra), indicated that there were three well known categories of add-backs, one being where the parties had expended money on legal fees. In a number of cases subsequent to AJO & GRO the Full Court has said that, whilst it is ultimately a matter for the exercise of discretion of the trial judge, the use of add-backs should be exceptional.
[8] (2005) FLC 93-218;[2005] FamCA 195
Further, in Bevan (supra), in her Honour’s separate judgment, Finn J says of the High Court’s judgment in Stanford (supra) at [160]:
84.These reminders that the jurisdiction under s 79 is a jurisdiction to alter individual interests in title to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so called “addbacks”), … of one or both parties. It may well be that these matters should more strictly be considered in making findings under s 79(4)(e) (i.e. s 75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79. …
The Full Court dealt specifically with the characterisation of interim property payments at final hearing in SMB & MFB[9]. In that case the Court stated at [68]:
[9] [2006] FamCA 46
… it is not axiomatic that a sum, even if characterised as property, will be added back to the pool. Here, his Honour did not consider whether the money was available to the wife and how it had been spent. Having characterised it as property he simply added it back notionally to the pool. True it was that the wife was “on notice” of a need to account for the funds that she had received, but subject to the comments that we have made, she did so and that evidence was not the subject of any significant challenge. Nor was there any evidence that she had misapplied the funds in some way.
The Full Court went on to say at [72]:
… Absent any negative finding about the wife’s expenditure which she had detailed in her affidavit and which she asserted to be her reasonable annual expenses, we cannot see any basis upon which his Honour ought reasonably to have added back the sum [specified] to the asset pool.
The tenor of the authorities is that “adding back” monies expended by a party to the asset pool is a discretionary matter for the individual judge. However, it is clear that a parties’ reasonable living expenses, regardless of any categorisation as an interim property payment, will rarely be added back to the asset pool while legal expenses are more likely to be added back if the source of funds used to pay such expenses was joint monies or property.
The husband did not challenge the wife’s evidence that the balance from the July 2016 payment which was not used for legal expenses was utilised by her for living expenses. According to the wife’s evidence which was not challenged she has had no access to the joint savings of the parties since separation and had been living since that date on her income from employment and was using credit cards. Personal loans and loans from family members were used to pay her legal fees. As I previously noted the banking records of the wife annexed to her affidavit appear consistent with her statement that these monies were used for reasonable living expenses throughout the second half of 2016.

Add backs are exceptional and the expenditure incurred by the wife from the payment in July 2016 other than the $30,000 spent on legal fees related to reasonable living expenses. Given the $30,000 has been spent by the wife on legal fees and is no longer in existence, I adopt the approach of Finn J in Bevan (supra) and will deal with the sum when considering the relevant s 90SF(3) factors.
On the basis of those findings, the current interests of the parties are set out in the following table:

LIST OF ASSETS AND LIABILITIES
JOINT ASSET	HUSBAND		WIFE
The family home ($770,000)	50 per cent: $385,000		50 per cent: $385,000
INDIVIDUAL ASSETS	HUSBAND		WIFE
Motor vehicle 3	$27,000
Motor vehicle 1 2010	$7,000
Motor vehicle 2	$1,000
D Bank Lifetime account	$75,000
Total Assets $911,000	$468,000		$412,000
JOINT LIABILITY	HUSBAND		WIFE
D Bank loans (2) on home (Totalling $177,446)	50 per cent: $88,723		50 per cent: $88,723
INDIVIDUAL LIABILITY	HUSBAND		WIFE
Car loan	$43,018
Total liabilities $220,464	$88,723		$131,741
SUPERANNUATION	HUSBAND	WIFE
Total Superannuation $108,380	$47,906 (D Bank Super Account)	$60,474 (BT Super, First State Super and Super Safeguard)

TOTAL NET ASSETS	HUSBAND	WIFE	JOINT
$130,906	$44,456	$592,554
Total	$767,916

The question to be determined is therefore whether it would be just and equitable to leave the property rights of the parties intact having regard to there currently being total net assets to the value of $767,916 with the husband’s interests totalling $427,183 and the wife’s interests totalling $340,733. In percentage terms the wife has assets comprising 45 per cent of the total assets and the husband’s percentage share is approximately 55 percent.
As was indicated in Stanford (supra) the requirement that it would be just and equitable to make an order is in many cases readily satisfied by observing that at [42]:
… as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. … any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marriage relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. …
The parties were in a relationship for 19 years before separating. The husband had an interest in a property when the parties began living together which was sold and they together purchased their family home where they lived and raised their children. A compensation payment in relation to a serious injury suffered by the husband was used to pay the mortgage on the family home and purchase an investment property which has subsequently been sold. The balance of the compensation was to be utilised to support the parties for many years in addition to any income each received through employment. Virtually none of that money remains. The arrangement as to the common utilisation of the parties’ property interests came to an end upon separation.
As the parties accept that there will not be common use of the property by both of them in the future and they both seek adjustment orders but are unable to agree to the adjustment, I am satisfied that it is just and equitable to make orders under s 90SM of the Act.

The Balance Sheet for adjustment

Both parties agree that each party’s superannuation interest and individual liabilities should not be included in the balance sheet for property adjustment.
On this basis the current interests of the parties are as follows:

HUSBAND WIFE

97.

98.

99.      ASSETS
$8,000 (two cars) $27,000 (car)

$75,000 (D Bank)

$385,000 (50 per cent share of property) $385,000 (50 per cent share of property)

LIABILITIES $88,723 (50 per cent share of D Bank home loans) $88,723 (50 per cent share of D Bank home loans)

TOTAL $379,277 $323,277

Contributions

Under s 90SM(4) of the Act, in considering what order should be made in property settlement proceedings, I must take into account the financial and non-financial contributions directly or indirectly made to the acquisition, conservation or improvement of any of the property of the parties and the contributions made to the welfare of the family and the children, including contributions as a homemaker or parent.
There are a number of disputes between the parties in relation to contributions made by them which require resolution.
First, it is contended on behalf of the husband that he should be regarded as having made a significant direct financial contribution to the acquisition of the former family home which is the most significant asset owned by the parties. He argues that this arises from the fact that he held an interest in a property when the relationship began which was sold seven years later and the proceeds used to partly fund the purchase of the family home.
It is contended on the wife’s behalf that the husband’s interest in the property at the commencement of the relationship should be regarded as a negligible initial contribution which should not result in any adjustment in his favour.
There is also a significant dispute about the financial contribution made by the husband through the use of his compensation payment of just over one million dollars to the parties’ financial position. The husband contends that the entire compensation payment should be treated as a very significant contribution made by him alone to the acquisition of property of the parties. It is contended by the wife that only a relatively small portion of the compensation money received by the husband was applied to the assets of the parties which should not result in an adjustment in favour of the husband.
Although there is no dispute that only $75,000 of the compensation payment of just over $1 million remains in existence there is a significant dispute about how the dissipation of this payment is to be treated when considering the parties’ contributions.
The issue of the compensation money will be also considered as part of the greater dispute concerning the extent of the husband’s incapacity as a result of his accident, the contribution made by the wife to his care following that accident, and the extent to which the husband is and is likely to be impaired in his capacity to be engaged in employment in the future. This matter is relevant both to the contributions made by the husband and some of the matters referred to in s 90SF(3) to which I will return.
The parties are also in dispute generally in relation to the issue of financial contributions both before and after separation relating to matters other than the compensation payment.
I do not approach the resolution of factual disputes by making a general credit finding which causes me to accept totally the version of one party over the other. Rather, in each case where the parties’ versions of events differ I consider whether there is corroborating evidence, particularly from a source which is independent and likely to be reliable. I also take into account the consistency of each party’s version with other undisputed facts and concessions made under cross examination.

Direct financial contribution to family home?

Unfortunately there is very little reliable evidence concerning the extent of the husband’s financial contribution to the family home.
As noted when setting out the background to these proceedings at the commencement of the relationship the wife was a high school student with no assets. The husband owned a property which was mortgaged but the extent of his interest in that property at relevant times is unknown. Although he deposes to the purchase price of the property being $104,000 which he says was paid for by a loan for “approximately $80,000” he also claims to have contributed “approximately $55,000 to $65,000” but this latter claim was not pressed in final submissions. There was also unchallenged evidence that his savings (whatever the amount) came from a payout of $40,000 he received in relation to a motor vehicle accident in which he was involved as a child.
There is no independent evidence to support the husband’s contentions about the extent of his interest in this property and those contentions contradict one another. On the basis he abandoned the claim that he contributed approximately $55,000 to $65,000 I consider it likely that he contributed about $24,000 of his own funds and borrowed about $80,000 to purchase his property.
The husband deposes to selling his property in 2001. At that stage the parties had been in a relationship for about seven years and had two young children. He deposes that the sale price for his property was $135,000 and that the balance after the payment of the mortgage and sales costs were applied towards the purchase of the family home.
There is no dispute between the parties that the purchase price for the family home was $285,000, but the sum from the sale of the husband’s property is unclear. The husband does not depose to the amount contributed by him though it can be inferred he contends “approximately $160,000” was borrowed as he says the property was mortgaged for this sum. As he says that the balance came from the sale proceeds of his property, it would seem he suggests that $125,000 of the purchase price came from this source.
Under cross-examination of the husband no further light was shed upon the extent of his interest in his property at the time the parties began living together or when that property was sold or quantum of the proceeds of sale which were used in the purchase of the family home.
The wife deposes that she and the husband had modest savings and that the purchase of the family home was “fully financed by way of mortgage”. She annexes to her affidavit a Memorandum of Mortgage which particularises the loan amount as $462,000. This document which was executed in October 2010 and relates to a loan almost $200,000 greater than the purchase price clearly does not relate to the loan and mortgage in respect of this property. The wife also deposes to the sale of the husband’s property at around the same time for $135,000 but makes no reference to any part of the proceeds being applied to the purchase of the family home.
Under cross-examination the wife conceded that the mortgage attached to her affidavit was not related to the loan associated with the purchase of the family home. She was shown a further mortgage[10] which was stamped for $242,000 and was taken out in the names of the parties as joint mortgagors at about the same time that the parties agree the family home was purchased. The wife agreed that this suggests that the difference between the purchase price of $285,000 and the mortgage of $242,000 was made up from the proceeds of sale of the husband’s property. In other words, she conceded that the amount of money other than the loan that was applied to the purchase of the family home was $43,000. I accept that it is more likely than not that about $43,000 from the sale of the husband’s property was utilised in the purchase of the family home. The question then arises about how this sum is to be treated in terms of the parties’ contributions.
[10] Exhibit 11.
I do not assess the husband as having made a significant initial contribution by way of his interest in the property that was owned by him when the relationship began or when that property was sold to purchase the family home and treat the wife as having made no contribution to the purchase of the family home as the husband contends. Rather, I assess the husband as having brought with him a small interest in a property in his name when the relationship began.
Although the purchase of the family home was financed by a combination of a mortgage and the proceeds of the sale of the husband’s property the husband was only able to increase the equity in his property because of the arrangements made between the parties whereby the wife was the principal carer for the children and homemaker and paid expenses related to the children and the household from her personal account. Under this arrangement the husband used his earnings to reduce the mortgage on the property in his name. Accordingly, the increase in the husband’s interest in his property came about from an arrangement in which each party made a different but valuable contribution to advancing the interests of the family. The parties did not have any joint savings which could be applied to the purchase of the family home, and the only funds available to them came from the sale of the property in the husband’s name in which he had a small initial interest ($24,000) eight years previously.
While I must not simply have reference to the value of an item as at the date of the commencement of the relationship without reference to its value to the parties at the time of the hearing as this may not give adequate recognition to the importance of the contribution at the time it was made[11] in my view the husband seeks to attract more weight than is appropriate in the circumstances to his small initial contribution made 24 years ago.
[11] Williams & Williams [2007] FamCA 313.
While the husband did make a direct financial contribution to the purchase of the family home through proceeds of the sale of his property, in a holistic sense I treat his contribution as no greater than the wife’s contribution.
In am of the view that the parties’ respective contributions to the joint property and the welfare of the family until September 2006 should also be regarded as equal. Their domestic and financial arrangement whereby the husband’s income was applied to the mortgage and the wife was the principal homemaker and caregiver and her income from part-time work was used on household and family expenses continued on the same basis until this time. Together they contributed to advancing the family’s interests and accumulating assets for the benefit of the family in accordance with their capacity to do so.

The husband’s accident – September 2006

The husband adduces very little evidence in relation to the motor vehicle accident in September 2006 in which he was seriously injured. His entire evidence concerning the circumstances of this accident and his injuries is as follows:
On … September 2006, I was involved in a motor vehicle accident. At the time I was 32 years of age. As a consequence of the accident I suffered a brain injury and facial and hand fractures. I was admitted into hospital for a period of approximately eleven (11) weeks.
According to the wife’s trial affidavit she had been working part time up until the date of the husband’s accident. Following the accident she resigned as she was unable to maintain employment and care for the husband. She deposes that she spent every day with the husband during the period he was hospitalised and following discharge continued to assist him with his day to day care during his recovery for approximately two to three years.
For a period of six months following his discharge from hospital the wife deposes to the husband requiring her assistance in showering and dressing, going to the toilet and feeding and being required to drive him to all of his ongoing medical appointments including rehabilitation. The wife was not challenged on her evidence that the husband did not have a driver’s license for at least a year after his injury.
In my view the husband’s case in relation to the extent of his incapacity is somewhat contradictory and confusing. The general tenor of his evidence is that he was quite severely incapacitated as a result of his accident and that this incapacity remains and will continue in the future. He also maintains however, that the wife’s assistance to him following his accident is not as great as she contends.
In his trial affidavit the husband deposes that he continued to provide some limited assistance with household duties following the accident for about six months and maintained under cross examination that when he was released from hospital he did not need much care from the wife. He begrudgingly agreed under cross examination that the wife provided some assistance, liaised with the doctors, took him to appointments and drove him everywhere as he had no license. Quite incredibly, he would not initially agree that the wife was the parent primarily looking after the children [who were then aged 10 and 12] and said that the children did not need much help. When put to him that children of this age need a parent to care for them he could not concede that it was the wife who had done this.
The husband ultimately accepted under cross-examination that he needed significant assistance for some time following his accident. He accepted that the wife had been present at the hospital for the entire period that he was unconscious and that the wife’s mother had moved into the family home to assist in the care of the children. He also then did agree that when he was released from hospital the wife was the parent primarily caring for the children and managing the household.
The husband’s brother who his guardian in the proceedings deposes that following the accident he observed the husband to have difficulty in completing tasks around the house and that he appeared to be tired and frustrated.
The wife denies that the husband provided any assistance with the care of the children or in household tasks following his accident.
Under cross examination in relation to the husband’s injuries and recovery the wife agreed that the husband was initially “slower” after the accident. She was cross examined extensively about information that she had given to a clinical psychologist but had a poor memory about what she may have told this person 10 years previously. Although the wife was challenged in this line of cross-examination about her evidence that the husband was aggressive and abusive in the post-accident period she was not significantly challenged about the extent of practical assistance she provided to the husband over an approximately two year period, or the level and source of household income during this period and her significant role with respect to the children and household.
The wife was unchallenged about her evidence that between the time of the husband’s accident in September 2006 until 2009 [when he received his compensation payment on 30 October] the only income received by either of the parties was a government benefit received by the husband. She deposes to the parties’ having very little money during that period and living very frugally.
However, the wife’s evidence as to this matter is also somewhat contradictory as she also contends that both parties did earn some income from employment from about 2008 until late 2009 when the compensation payment was made.
The wife deposes to embarking on a new career in about 2008, when she commenced casual work as a health professional and undertook training. After about one year she qualified and obtained employment with an organisation where she continues to work. She deposes to depositing her salary into her personal account from which she paid all expenses relating to the children and the household. The wife deposes at this time to working approximately 76 hours per fortnight, generally night shifts so that she could continue to care for the children, take them to and from school and sleep during school hours.
The wife deposes that at around the same time she returned to work (which I take to mean 2008) the husband obtained full time work in a family business as a tradesman. Under cross-examination she agreed that he initially worked part time.

In my view in the absence of any evidence concerning the husband’s alleged disability at any time I cannot find that he is not legally responsible for dissipating the compensation money by giving it away to others some eight to 11 years after his accident due to some alleged vulnerability.
The second proposition advanced on the husband’s behalf as to the reduction in the balance of the D Bank Investment Account is that this sum was used by him for his necessary living expenses rather than dissipated in a manner for which he should be responsible.
Although the husband claimed that his compensation money was his sole source of income at the time of the final hearing and suggested variously that he had not received any employment since late 2015 or that he received $50 in cash each day on which he worked I do not accept his evidence as to his various sources of income since separation. For the reasons given I have found that he continued to receive an income from his family business until at least October 2015, he received an unknown amount from H Pty Ltd in 2014 and MPL from at least January 2015 up until the present. I do not accept that he currently receives only $50 in cash on each day he works and find it is likely that he has some income from some employment which has not been disclosed in the proceedings.
For the reasons given I am also satisfied that the husband gave away $255,000 to friends and associates, spent at least $70,000 in gambling and spent sums unable to be quantified on overseas travel and cars and other items. He chose to support both adult sons for some years and continues to support the older son in a manner in the circumstances that may be considered as extravagant.
I do not accept the submissions made on behalf of the husband that I should approach an allegation of waste or the assumption of responsibility for dissipation in the manner contended. The argument is advanced that the reduction in the balance in the D Bank Investment Account does not fall within the category of “waste” or “reckless behaviour” as considered in Kowaliw & Kowaliw[17] but rather poor judgment. It is submitted that in determining whether the husband behaved in a reckless manner I should adopt the definition of “recklessness” that applies in criminal proceedings and that I could not infer that the husband adverted to the possible consequences of his conduct (in giving away and in other ways dissipating his funds) but still proceeded with that conduct.
[17] (1981) FLC 91-092.
In my view the more appropriate way to deal with the issue of the husband’s responsibility for dissipating the funds is that advanced by the wife. In submissions made on her behalf reference is made to the approach taken by Murphy J in Watson & Ling[18] and the decision of Cronin J in Toft & Royce[19]. In the former case Murphy J said at [32] – [33]:
Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have be significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.
… This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
In the later decision Cronin J commented at [14]:
… The practice of creating notional “add-backs” for assets that have been dissipated has no place in this assessment; however, it does not follow that unilateral behaviours resulting in the dissipation of property or premature distributions are no longer relevant – in appropriate circumstances they may affect the final order by virtue of s 75(2)(o) …
[18] [2013] FamCA 57.
[19] [2013] FamCA 372.
I adopt the approach taken by their Honours in those cases here and find that the husband unilaterally acted in a manner which resulted in the dissipation of property in which the wife had some albeit small entitlement and treated the sum in the D Bank Investment Account as solely his.
In being satisfied as to this matter I note that all of the sum dissipated has not been accounted for by findings that the husband gave money to friends and associates, spent in a pattern which was extravagant in the circumstances and gambled. I am of the view in these circumstances that the husband has failed to disclose complete and accurate information concerning his income and financial circumstances following separation and find that it is likely he dissipated the funds in other ways which are unable to be ascertained with certainty and did not utilise them solely for everyday living expenses as he had access to other sources of income. In accordance with the well settled law[20] if a party fails to fulfil the obligation to make full and substantive disclosure of his financial affairs it is open to the other party to rely on the absence of satisfactory evidence to prevent the making of an order against her which otherwise justice and equity would require.
[20]Black & Kellner (1992) FLC 92-287 and the cases referred to therein.
For these reasons I am satisfied that the husband should be wholly responsible for dissipating the funds in the D Bank Investment Account (in the amount of $414,000 from $489,000 at the date of separation to $75,000 at the date of final hearing).
Having regard to the way in which the husband treated the balance of his compensation payment from the time of separation until he was restrained from dealing with it in July 2016 I also cannot treat any of the compensation payment as a contribution of the husband to the property of the parties, other than the small balance which now remains ($75,000). Even this amount cannot be regarded solely as the husband’s contribution as the wife had some small entitlement to it as previously discussed. It is also only by the wife’s actions in bringing the application to restrain the husband from dealing with the remainder of the D Bank Investment Account that ensured that the $75,000 still remaining was not dissipated by the husband.

Findings and conclusion in relation to contributions

When s90SM(4) is applied to the foregoing findings I assess the contributions made by each of the parties to the acquisition, conservation or improvement of their property and contributions to the welfare of the family as equal up until September 2006 when the husband was injured in his motor vehicle accident.
Following the accident I find that the wife’s non-financial contribution to the welfare of the family and financial contribution up until the date of separation was greater than the husband’s financial contribution including the direct financial payments he made to the reduction in the mortgage. In my view the wife’s greater contribution would result in a small adjustment in her favour to her contribution based entitlement as at the date of separation.
For the reasons given in relation to the dissipation of the compensation payment I regard the parties as having made equal contributions to the $75,000 remaining in the D Bank Investment Account.
For the reasons given in the extensive consideration relating to the husband’s financial position following separation I do not treat him as having made any contribution to the parties’ property following separation greater than the contribution of the wife. As one of the parties’ children was 17 at the time of separation and the other was an adult I consider that the husband’s contribution to the welfare of the family after separation where it was mainly a matter of choice rather than legal responsibility is little more than negligible. Further, although the husband continued to pay the interest on the loans secured by a mortgage over the family home after separation, he has also had the benefit of residing in that jointly owned property for almost five years while the wife has resided with her parents where she pays a small amount in rent. I also take into account that although the parties had agreed that each would assume responsibility for certain joint liabilities the wife has in these proceedings agreed to pay for the two loans that related to the failed venture. In these circumstances I make no further adjustment in favour of either party post separation.
Accordingly I assess the wife’s contribution to the matrimonial asset pool at 52 per cent and the husband’s contribution at 48 per cent. This creates a four per cent disparity between the parties which in dollar terms amounts to $28,102 of the asset pool for distribution of $702,554.

Section 90SF(3) Factors

I am next required to consider whether there should be a further adjustment to the parties’ contribution based entitlements as a result of consideration of the matters set out in s 90SF(3).
The husband is aged 43 and the wife is aged 41.
The wife has been diagnosed with depression for which she is medicated. Otherwise, she is in good health and there is no suggestion that she does not have the capacity to continue in her current employment.
The husband suffered a traumatic brain injury following a motor vehicle accident in 2006. It is the husband’s contention that he is unable to maintain any meaningful employment due to the continuing effects of this brain injury.
While it is accepted that the husband likely suffered organic brain damage in the accident, there is no evidence from any medical practitioner about the nature and extent of the husband’s injuries or level of disability he suffered following the accident or continues to suffer presently. Given the paucity of evidence I am unable to make a definitive finding as to the effect the husband’s organic brain damage has on his present and future capacity for work.
However, the husband’s employment following his accident in 2006 has been dealt with at length earlier in these Reasons and is a matter relevant to his future capacity for work to which I now turn.
It is clear on the evidence the husband has been employed by various entities, including his family business, at various times from 2008 onwards despite his affidavit evidence to the contrary. I have also found that such employment has not resulted in minimal cash payments of $50 per day as suggested by the husband but rather consistent income of $700 to $800 per week for periods of many months paid directly into the husband’s bank account. Much of the information concerning the husband’s employment after 2006 was revealed through concessions made by him under cross examination or through a piecing together of the material tendered in the proceedings as to this issue. His evidence relating to his income and employment generally is wholly inadequate and it is likely that the husband has engaged in further employment or been paid for additional work beyond that discussed in these Reasons.
Given the evidence that the husband has engaged in gainful, paid employment consistently since 2008, I find that that husband does have the physical and mental capacity for meaningful employment in the future and is not precluded from working on the basis of injuries sustained in his motor vehicle accident in 2006.
By virtue of his compensation payment in 2009 the husband is ineligible to receive government benefits until February 2022. It can only be assumed that, on the minimal evidence provided to the court on his issue, the husband’s compensation payment was supposed to ensure that he could financially maintain himself until at least 2022 without the need for financial assistance from the public purse. The husband’s dissipation of his compensation payment is a circumstance for which he is wholly responsible and the consequences of this dissipation are not matters that warrant any adjustment in his favour.
The wife presently resides with her parents to whom she pays a small amount in rent and has relied solely on her income from employment to support herself since separation other than the interim distribution of funds made to her in July 2016 which were spent on her legal fees and reasonable living expenses. As discussed at length earlier in these Reasons those funds included $30,000 of joint money that the wife used to pay a portion of her legal fees. In circumstances where the general rule is that each party should bear their own costs of the proceedings and the funds made available to the wife would otherwise have been included in the asset pool for distribution it is appropriate that a small adjustment be made in favour of the husband to account for the wife’s use of these funds to cover legal expenses.
Both parties have some superannuation available to them that they will be unable to access for a number of years.
Neither of the children of the parties’ relationship are under the age of 18. At least one of the parties’ sons continues to reside in the former matrimonial home with the husband. It is submitted on behalf of the husband that his continuing to provide for and maintain this son is a factor that should be considered by the Court under s90SF(3). The husband has no legal responsibility to support his adult children and if he chooses to continue to do so that is a matter for him. It is not a matter that will be taken into account when assessing the husband’s future needs.
For the foregoing reasons, I am of the view that there should be a two per cent adjustment in favour of the husband. Two per cent amounts in dollar terms to just over $14,000 and the adjustment will result in each party receiving half the asset pool.

Just and equitable

The final orders I propose making involve the wife receiving 50 per cent and the husband receiving 50 per cent of the total pool of assets. As the total asset pool for distribution (minus the parties’ joint liabilities) is $702,554, an equal division of the assets results in each party being entitled to receive $351,277.
Presently the husband has assets in his possession or control, including his 50 per cent share in the former family home in which he resides, totalling $379,277. The wife presently has assets comprising $323,277.
Therefore to effect an equal distribution of the asset pool, the husband will be required to pay the wife $28,000.
However, the wife seeks to retain the former matrimonial home and it is not opposed by the husband that she be given the opportunity to buy his share of the property. Therefore, orders will be made in accordance with orders (1) and (2) of the wife’s Revised Minute of Order tendered on 24 January 2018 that the husband do all things necessary to transfer his interest in the former family home to the wife and simultaneously the wife shall pay to the husband the sum of $268,277 being the value of the husband’s 50 per cent share of the property ($385,000) less the value of his 50 per cent share of the D Bank loans secured by a mortgage over the property ($88,723) and less the $28,000 the husband is to pay the wife to effect a 50/50 distribution of the asset pool.
In the event that the wife does not or cannot pay the husband $268,277, the property is be sold in accordance with orders (3) to (8) of the wife’s Revised Minute of Order. In this event, the proceeds of sale are to be distributed in accordance with order (9) of the wife’s Revised Minute of Order except that the husband is to receive 50 per cent of the balance of the proceeds after costs less $28,000 and the wife is to receive the remaining balance (being 50 per cent of the proceeds after costs plus $28,000).
Orders will also be made in accordance with orders (10) – (13) of the wife’s Revised Minute of Order.
Those orders are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding two hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 June 2018.

Legal Associate:

Date: 13 June 2018

HUSBAND	WIFE
97. 98. 99. ASSETS	$8,000 (two cars)	$27,000 (car)
	$75,000 (D Bank)
	$385,000 (50 per cent share of property)	$385,000 (50 per cent share of property)
LIABILITIES	$88,723 (50 per cent share of D Bank home loans)	$88,723 (50 per cent share of D Bank home loans)
TOTAL	$379,277	$323,277