Peroni and Kappa - [2020] FamCA 767

FAMILY COURT OF AUSTRALIA

PERONI & KAPPA

[2020] FamCA 767

FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – cohabitation period of 14 years and separation under the one roof for a further 11 years – assessment of the asset pool for division between the parties – direct financial contribution by the wife of an interest in a property at the commencement of the marriage which remains as at the date of trial and significant advances by the wife’s parents during cohabitation – characterisation of those advances as contributions on behalf of the wife and not loans – contributions of the husband including a personal injuries settlement payment – discussion of the wife’s contributions to the compensation payment – contributions of other financial and non-financial nature by both parties – assessment of future needs of both parties where the husband has physical ailments - assessed that the husband’s physical ailments do not affect his capacity to earn income – where husband has the benefit and certainty of income protection payments for a considerable number of years compared to wife’s uncertain income earning capacity.

Family Law Act 1975 (Cth) ss.75, 79
Evidence Act 1995 (Cth) s.140

Stanford v Stanford [2012] HCA 52
In the Marriage of Hickey [2003] FamCA 395
Bevan & Bevan [2013] FamCAFC 116
Chancellor & McCoy [2016] FamCAFC 256
Chorn & Hopkins (2004) FLC 93-204
Trevi & Trevi [2018] FamCAFC 173
Griffiths v Kerkemeyer (1977) 139 CLR 161
Re Q (Damages for sexual assault) (1994) 18 Fam LR 442
Jones & Dunkel (1959) 101 CLR 298
Pierce& Pierce (1999) FLC 92-844
Biltoft & Biltoft (1995) FLC 92-614
Af Petersens & Af Petersens (1981) FLC 91-095
Kessey & Kessey (1994) FLC 92-495; [1994] FamCA 162
In the Marriage of Gosper (1987) 11 Fam LR 601
Aleksovski & Aleksovski (1996) 20 Fam LR 894
Dickons & Dickons [2012] FamCAFC 154

APPLICANT:

Mr Peroni

RESPONDENT:

Ms Kappa

FILE NUMBER:

SYC

5788

2015

DATE DELIVERED:

15 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

1 – 3 June 2020

FINAL SUBMISSIONS:

Wife – 16 June 2020

Husband – 10 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

Taylor & Scott Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Anne Day & Associates

Orders

The parties forthwith do all acts and sign all documents required to disburse the funds in the Taylor and Scott trust account (approximately $590,090) as follows:
(a)$2,950 to the wife’s solicitors on behalf of the wife, being the costs ordered to be paid to the wife in February 2018;
(b)The balance to the husband, or at his direction.
That within 90 days from the date of these Orders and subject to the wife’s compliance with order 3 hereof, the husband transfer to the wife, at the wife’s expense all his right, title and interest in B Street, Suburb C (“the Suburb C Property”).
Contemporaneously with the transfer referred to in order 2 hereof, the wife do all acts and things and sign all documents necessary to:
(a)discharge the parties’ joint mortgage registered against the title of the Suburb C Property (“the CBA Mortgage”);
(b)pay the husband the sum of $226,965 into the Taylor & Scott Trust Account;
(c)cause the lapse or withdrawal of the caveat registered on title of the Suburb C Property in favour of H Pty Ltd; and
(d)indemnify and keep indemnified the Husband in respect of any and all encumbrances, debts, taxes, imposts, outgoings and/or utilities secured against or in relation to the Suburb C.
In the event the wife fails, refuses or neglects to comply with Order 3, then the parties shall cause the Suburb C Property to be placed on the market for sale by public auction.
That upon completion of the sale of the Suburb C Property, the parties shall distribute the proceeds of sale in the following manner and priority:
i)firstly, in payment of the listing agent’s commission and expenses on the sale;
ii)secondly, in payment of the conveyancer/solicitor’s costs in respect of the sale;
iii)thirdly, in adjustment of rates and levies on the property;
iv)fourthly, in discharge of the CBA Mortgage;
v)fifthly, in payment to the husband $226,965 into the Taylor & Scott Trust Account plus interest calculated in accordance with the Family Law Rules 2004 from the date of the wife's default; and
vi)sixthly, the balance remaining to the wife.
That within 28 days from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to close their jointly held savings account with the Commonwealth Bank of Australia (acct no. …84) and the wife shall be entitled to the balance to the exclusion of the husband.
Unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other; and
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.

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 Peroni & Kappa 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 MELBOURNE

FILE NUMBER: SYC 5788 of 2015

Mr Peroni

Applicant

And

Ms Kappa

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is an application for property adjustment pursuant to s.79 of the Family Law Act 1975 (“the Act”) as the parties are unable to agree about the division of their property.

Relationship History

The applicant husband is aged 54 years and the respondent wife is aged 51. The husband is a technician by trade. The wife is a tradesperson but most recently has worked in hospitality, although her employment has been interrupted by the COVID-19 pandemic.
The parties married and commenced cohabitation on … 1991. They separated under the one roof in 2005, and remained living together in the former family home at Suburb C until August 2016, when the husband commenced living in rental premises. They were divorced in late 2016.
There are two adult children of the relationship, Ms J born … 1997 and Mr L born … 1998.

Issues in dispute

The following issues were in dispute in the proceedings:
a)add backs to the asset pool;
b)the extent of each party’s contribution to the asset pool;
c)the extent of the contributions of the wife’s family towards the asset pool;
d)the s75(2) factors in relation to both parties.

Synopsis

In relation to property, I have determined that:
a)the asset pool is as set out in paragraph 98 hereof;
b)the asset pool be divided 60% in favour of the wife and 40% in favour of the husband.
The reasons for my determination follow.

Background

A brief background is as follows:
a)on or about 1985 whilst at school, the wife worked at K Business, after which she commenced an apprenticeship;
b)in 1988 the wife asserts she had saved approximately $45,000 which was applied to purchase the property at D Street Suburb E with the balance paid by the wife’s parents. The wife’s interest is a two third share;
c)on … 1991 the parties married and commenced cohabitation at the D Street Suburb E property;
d)in June 1992 the parties purchased M Street, Suburb F for $170,000. At around this time, the wife asserts that she worked as a tradesperson and the husband worked in transport and assisted at his father’s shop;
e)in 1997 the husband sustained injuries from a fall and received income protection payment;
f)on … 1997 the parties first child, Ms J was born;
g)on 1 August 1997 the parties purchased a block of land at N Street, Suburb G for $150,000;
h)on … 1998 the parties second child, Mr L was born;
i)in 1999 the wife was the victim of a home invasion and suffered from post-traumatic stress disorder. On or about 9 September 2002, she received $10,500 by way of a victim’s compensation pay out;
j)in May 1999 the parties sold the Suburb F property for $212,000;
k)in April 2000 the parties purchased the property at B Street, Suburb C for $395,000;
l)in July 2001 the property at N Street, Suburb G was sold for $217,000;
m)in September 2003 the parties purchased the property at D Street, Suburb E for $490,000;
n)in 2005 the parties separated and remained living under the one roof;
o)on 14 August 2016 the parties ceased cohabitation and on 11 December 2016, the parties were divorced;
p)in October 2019 the D Street, Suburb E property was sold.

Procedural History

The current application for property settlement was initially commenced in the Federal Circuit Court, when the husband filed an Initiating Application on 17 February 2016. On 16 March 2016 the wife filed a Response. The matter was first listed before a Judge of that Court on 21 July 2016. The application was then transferred to this Court on 13 September 2016.
Prior to the first return date, the husband filed an Application in a Case seeking sale of the former family home. Subsequent to the first return date, there has been a plethora of interim applications to the court, including the husband filing an Application in a Case on 22 May 2020, just over a week prior to the final trial.

Preliminary matters

The matter was heard electronically during the COVID-19 Pandemic, with the consent of both parties.
On 28 April 2020, I conducted a mention to ascertain the views of the parties to conduct the proceedings electronically by Microsoft Teams. Both parties were agreeable to that course of action and did not seek an adjournment until the court resumed in-person trials.
Procedural orders for an electronic trial were made and undertakings sought and accepted from Counsel as to the practicalities and logistics of the witnesses giving evidence and being cross examined.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to all parties. I wish to compliment both Counsel for the manner and spirit of cooperation in which the trial was conducted.
The following two preliminary matters required determination:
a)The husband’s Application in a Case filed 22 May 2020 seeking a partial property distribution from funds in trust;
b)An application for leave to rely on an expert witness, an occupational therapist.

Application in a Case filed 22 May 2020

On the morning of the trial, I was advised that Counsel representing the parties would endeavour to negotiate a resolution of the husband’s Application in a Case.
On the third day of the trial, the release of funds had not been resolved and I advised Counsel for the parties that the application would not be dealt with prior to a determination, as I anticipated final reasons would be delivered expeditiously.

Application for leave to adduce evidence from an expert witness

On the morning of the trial, Counsel for the husband made an oral application seeking leave to rely on an affidavit of an occupational therapist. That application was made pursuant to Rule 15.51(1) of the Family Law Rules 2004.
In order to understand the context of the application, it is necessary to refer to an Application in a Case filed by the husband on 6 April 2020. That application sought the appointment of a single expert witness relating to the husband’s alleged medical conditions. That application was heard and determined by me on 28 April 2020 and orders were made appointing Dr O as a single expert witness. The husband attended a teleconsultation with Dr O on 8 May 2020.
Dr O prepared a report dated 8 May 2020 which was filed on 26 May 2020. That report refers to assessment of the husband by an occupational therapist.
I was advised by counsel that the husband solicitors forwarded a letter to the wife’s solicitors on 25 May 2020 seeking the appointment of an occupational therapist as an expert witness in the proceedings. The wife’s solicitors were required to respond as to the appointment of a suitable expert by 5 PM that day.
The wife’s solicitors, quite properly, sought details of the qualifications of the proposed experts, prior to committing to any agreement. In the absence of an agreement between the solicitors, the husband’s solicitors unilaterally proceeded to obtain a report from an occupational therapist of their choice, which was then served on the wife’s solicitors on 29 May 2020, the Friday prior to the commencement of the trial on 1 June 2020.
Counsel for the wife submitted that the wife’s solicitors had not been accorded procedural fairness nor the opportunity to adequately consider the appointment of an additional expert witness.
Although not specifically submitted, if I permitted the husband to adduce evidence from the proposed witness at the trial which was to commence that morning, it would deprive the wife the opportunity of both:
i)submitting questions to the expert; and
ii)permitting the husband to adduce expert evidence in circumstances where the wife is unable to do so.
Rule 15.52 (2) of the Rules sets out the considerations the court may take into account when determining whether to permit a party to tender a report or adduce evidence from an expert witness.
Rule 15.52 (2) provides as follows:
Application for permission for expert witness
[…]
(2) The affidavit filed with the application must state:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness's evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness's training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
(g) whether there is any previous connection between the expert witness and the party.
After considering the matters set out in r.15.52 (2) I was of the view that to permit the husband to adduce evidence from an occupational therapist, at such a late stage in the proceeding, would be unduly prejudicial to the wife. There was no realistic attempt by the husband’s solicitors to permit any meaningful consideration by the wife’s lawyers whether such evidence was actually necessary, rather the imposition of an unreasonable timeframe to consider the issue, provide advice and obtain instructions. Additionally, at no stage of the proceedings, and in particular, in his trial affidavit had the husband referred to any difficulties coping with domestic tasks, which he experienced or anticipated may experience in the future, which arose from his injuries.
Notwithstanding my decision not to permit the husband to adduce the expert evidence of the occupational therapist, I advised Counsel for the husband that any application for an adjournment to address procedural fairness and relevance issues, would likely be granted, but with cost implications for the husband.
I adjourned the court to enable Counsel for the husband to obtain instructions pertaining to an adjournment of the trial. I was subsequently advised that an adjournment was not sought and that the trial should proceed, without the evidence of the occupational therapist.

The proposals of the parties

The applicant’s proposal

The orders which the applicant sought from the court are set out in the Case Outline emailed to chambers on 29 May 2020.
They are in summary as follows:
a)That within 28 days from the date of these Orders and subject to the Wife’s compliance with the below order, the Husband transfer to the Wife, at the Wife’s expense all his right, title and interest in B Street Suburb C (“the Suburb C Property”).
b)That simultaneous with Order a) herein, the Wife shall do all acts and things and sign all documents necessary to:
i)discharge the Parties’ joint mortgage registered against the title of the Suburb C Property (“the CBA Mortgage”);
ii)pay the Husband the sum of $ 577,502 into the Taylor & Scott Trust Account;
iii)cause the lapse or withdrawal of the caveat registered on title of the Suburb C Property in favour of H Pty Ltd; and
iv)indemnify and keep indemnified the Husband in respect of any and all encumbrances, debts, taxes, imposts, outgoings and/or utilities secured against or in relation to the Suburb C.
c)That in the event the Wife fails, refuses or neglects to comply with Order b) herein, then the Parties shall cause the Suburb C Property to be placed on the market for sale by public auction.
d)That upon completion of the sale of the Suburb C Property, the Parties (or the Husband if appointed sole trustee pursuant to these Orders) shall distribute the proceeds of sale in the following manner and priority:
i)firstly, in payment of the listing agent’s commission and expenses on the sale;
ii)secondly, in payment of the conveyancer/solicitor’s costs in respect of the sale;
iii)thirdly, in adjustment of rates and levies on the property;
iv)fourthly, in reimbursement to the Husband of any out-of-pocket expenses incurred by him in the course of acting as trustee of the sale, if applicable;
v)fifthly, in discharge of the CBA Mortgage;
vi)sixthly, in payment to the Husband of the capital sum referred to in Order b) ii) herein into the Taylor & Scott Trust Account plus interest calculated in accordance with the Family Law Rules 2004 from the date of the Wife's default of Order b); and
vii)seventhly, the balance remaining to the Wife.
e)That further to the immediate preceding order, in the event there are insufficient sale proceeds to discharge the Wife's compliance with Order (d)(vi) herein, the Wife shall within 28 days from the completion of the sale of the Suburb C Property pay the Husband the shortfall with interest continuing to accrue until payment is made.
f)That the Husband shall be entitled to and have released to him at his direction the balance of the net sale proceeds from D Street, Suburb E NSW held on trust by Taylor & Scott Lawyers, to the exclusion of the Wife.
g)That within 28 days from the date of these Orders, the Parties shall do all acts and things and sign all documents necessary to close their jointly held savings account with the Commonwealth Bank of Australia (acct no. …84) and the Husband shall be entitled to the balance to the exclusion of the Wife.
h)That except as specifically provided for by these Orders, and to the contrary, the Husband is declared to be the sole owner and the Wife has no interest in the following:
i)the Husband’s superannuation entitlements;
ii)the Husband’s business t/as P Company (ABN …);
iii)the Husband’s bank accounts;
iv)the Husband’s motor vehicles; and
v)any and all other assets and/or financial resources in the Husband’s name, possession or control.
i)That except as specifically provided for by these Orders, and to the contrary, the Wife is declared to be the sole owner and the Husband has no interest in the following:
i)the Wife’s 2/3 interest as tenants-in-common with her parents in the property situate at and known as D Street, Suburb E;
ii)the Wife’s superannuation entitlements;
iii)the Wife’s bank accounts;
iv)the Wife’s motor vehicles; and
v)any and all other assets and/or financial resources in the Wife's name, possession or control.
j)That the Wife pay the Husband’s costs of, and incidental to, these proceedings.

Documents relied upon by the applicant:

The applicant relied upon the following documents:
i)Amended Initiating Application filed 19 May 2020;
ii)Affidavit of the husband filed 22 May 2020;
iii)Financial Statement of the husband filed 19 May 2020;
iv)Affidavit of Dr O filed 26 May 2020;
v)Outline of Case.

The respondent’s proposal

The orders which the respondent sought from the court are set out in the Summary of Argument document provided to chambers via email on 27 May 2020.
They are in summary as follows:
a)The funds held in Trust for the Husband and the Wife by Taylor & Scott Lawyers, be paid as follows:
i)the sum of $450,000 to the Husband;
ii)the sum of $80,000 to the Wife
iii)the sum of $2,950 to the Wife in payment of outstanding costs; and
iv)any remaining balance to be retained on account of Capital Gains Tax (“The CGT account”) relating to the sale of the property at D Street, Suburb E with the husband and Wife each to do all things necessary to cause an assessment of their respective taxation liability in respect of such sale (“the Assessment”) to issue from the Australian Taxation Office forthwith upon being able to do so.
b)Forthwith upon issue of the assessment as referred to in the preceding paragraph, each of the husband and Wife shall do all things necessary to:
i)instruct Taylor and Scott to pay to the person the subject of the assessments from the CGT account an amount equal to the amount payable pursuant to the assessments; and
ii)in the event of there being any shortfall between the moneys available in the CGT account and the assessment each shall be liable for one half of any shortfall for which the other is liable and shall forthwith pay such amount to the other.
iii)in the event of funds remaining in the CGT account following payment of the assessments then the parties shall divide any such amount 50% to the husband and 50% to the Wife.
c)That upon the payment and transfer provided in the above two orders, the Wife shall indemnify and keep indemnified the Husband in respect of any moneys claimed to be owing by the parties or either of them to the Wife’s parents.
d)That the Husband indemnify and keep indemnified the Wife in respect of any debt, taxes, or liabilities howsoever described incurred by or on behalf of the business “P Company” and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband.
e)That the Husband be declared to be the owner absolutely to the exclusion of the Wife of:
i)the business and assets of the Husband’s business trading as “P Company” and all bank accounts held in the Husband’s name that relate to this business;
ii)Motor Vehicle 1;
iii)Motor Vehicle 2;
iv)Motor Vehicle 3;
v)the Husband’s Members superannuation entitlements in the Super Fund 1;
vi)all items of personalty, tools and equipment currently in his possession and control.
f)That the Wife indemnify and keep indemnified the Husband in respect of any taxes outgoings and utility charges on the D Street, Suburb E Property from the date of payment and transfer as provided in Orders a) and b) herein and hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.
g)That the Wife be declared to be the owner absolutely to the exclusion of the Husband of:
i)the Wife’s interest in the D Street Property;
ii)the Wife’s interest in the Suburb C Property;
iii)the CBA Smart Access Account in the joint names of the parties and the husband forthwith transfer to the Wife his interest in the account;
iv)a Motor Vehicle 4;
v)CBA Goal Saver Account;
vi)CBA Complete Access Account;
vii)the Wife’s Members superannuation entitlements;
viii)all items of personalty, tools and equipment currently in her possession and control.
h)The Husband pay the Wife’s costs of and incidental to these proceedings.

Documents relied upon by the respondent:

The respondent relied upon the following documents:
i)Further Amended Response filed 22 May 2020;
ii)Affidavit of wife filed 22 May 2020;
iii)Financial Statement of Wife filed 22 May 2020;
iv)Affidavit of Mr Q Kappa (wife’s father) filed 19 May 2020;
v)Affidavit of Ms J (parties’ daughter) filed 22 May 2020;
vi)Outline of Case.

EVIDENCE

The standard of proof in this case is the balance of probabilities (s.140 Evidence Act1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
Counsel for each party prepared a list of objections to evidence. Some objections were resolved by agreement between Counsel and a document headed Joint List of Affidavit Objection Concessions was tendered as exhibit H1. The remaining objections were argued and determined prior to the hearing. Both Counsel were advised that, unless requested, I would not incorporate my rulings into formal reasons. Neither Counsel requested formal reasons.
The husband gave evidence and was cross-examined. Dr O was not required for cross-examination.
The wife and her father gave evidence and were cross-examined. Mr Q Kappa required the assistance of an interpreter. The parties’ daughter, Ms J, was not required for cross-examination.
The husband presented his case with ostensible precision, which was not reflected in his oral evidence. His affidavit evidence seemed to a recently constructed narrative from available documents, including some historical invoices and bank statements, title searches of transfers and other instruments. The reality of his evidence was that he was a poor historian, frequently could not remember past events and prior statements in his affidavits and was unable to provide plausible explanations for his claims. He frequently exaggerated the extent of his financial contributions. Examples of this were his repeated claims that the parties’ joint savings had been applied to the acquisition of various properties, as opposed to contributions by the wife’s parents, when it was highly improbable the parties could have saved such vast sums and his own evidence about the quantum of his damages award, which was contradicted by his own exhibited documents. He did not impress me as frank and forthright and begrudgingly made concessions when there was no alternative than to do so.
As submitted by Counsel for the wife, the husband:
i.was reluctant to disclose issues salient to his case, such as information about his address and current partner, and the actual inheritance he received;
ii.made allegations about the wife which did not have an evidentiary basis, such as his claim of the wife’s excessive holidays, despite him calling for and receiving production of the wife’s passport.
When he was sworn in, the husband gave his address as that disclosed on his recently filed trial affidavit. After the lunch adjournment he sought to correct his evidence, that the address he had given to the Court was not where he actually lived and had not lived for quite some time. He expressed reluctance to disclose his actual address, which was his partner’s home, for reasons which were not clear. In any event, there was no reason to actively provide to the Court an address which he knew to be incorrect. This evidence adversely affects his credibility.
I was left with the impression:
i.he generally tailored his evidence to what would he perceived would be most advantageous for his case; and
iihad poor actual recall, except when it suited him and he had obtained documents which enabled him to reconstruct past events.
Where there is a dispute between his evidence and that of the wife, I prefer the wife.
The wife’s response to cross-examination was far more frank and spontaneous than the husband. She clearly and understandably was unable to precisely recall all historic events, and did not profess to be able to do so. She mostly answered questions directly and plausibility and did not seem to rely on a reconstructed narrative. Where there is a dispute between the evidence of the wife and the husband, I prefer the evidence of the wife.
The wife’s father required the assistance of an interpreter. His evidence, as would be expected, was supportive of his daughter. He also attempted to answer questions directly. His answers to questions about whether the advances were gifts or loans was entirely credible. His evidence did not always align in precise detail with his daughter, for example the total amount advanced by him and his wife. His evidence about the source of the funds advanced, for example the sale of Europe properties seemed truthful. He appeared wearingly resigned to the fact he was unlikely to receive repayment of the amounts advance. Where his evidence differs from the husband’s, I prefer his evidence.

Relevant Legislation

Property proceedings between parties to the marriage are governed by the provisions of s.79 of the Family Law Act1975.
Section 79 (1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79 (2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79 (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4): In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4) (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
Section 79(4) (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4) (e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4) (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4) (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75(2) of the Act. Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties interests in property, the court must determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
At Paragraph [36] of Stanford, the High Court said:
[36] The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
In Bevan & Bevan [2013] FamCAFC 116 the Full Court considered which matters might be taken into account in determining whether it is just and equitable to alter existing property interests.
At paragraphs [84] and [85], Bryant CJ and Thackray J said:
[84] Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79 (4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s79(4) which make clear that in considering “what order (if any) to make, the court must take into account the matters referred to in that subsection.
[85] This requirement to consider the s79(4) matters, in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, we determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
In Bevan (supra) Finn J stated at paragraph 169:
[169] Findings of fact concerning of the parties financial history (i.e. the contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
The Full Court in Chancellor & McCoy [2016] FamCAFC 256 said at paragraph [42]:
[42] In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) (“the Act”) when determining whether it is “just and equitable” to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make 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……. The question posed by S79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
At paragraph [40] of Stanford (supra), the High Court stressed that the question of whether it is just and equitable to make property settlement orders should not be answered by starting with an assumption:
[40] that one or other party has the right to have the property of the parties divided between them, or has the right to an interest in a marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s79 (4). The power to make a property settlement order must be exercised. “In accordance with legal principles, including the principles which the act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79 (4) without a separate consideration of s79 (2), B to conflate the statutory requirements and ignore the principles laid down by the act.
The High Court further stated at [42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.

Is it just and equitable to alter the parties’ property interests?

In this matter the parties have separated and both parties have made applications to the court seeking orders altering their respective property interests.
The parties are no longer living in a marital relationship, and as stated at paragraph [42] of Stanford (supra), there will not “thereafter be the common use of property by the husband and the wife”.

I am satisfied that it is just and equitable to alter the parties’ property interests.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
a)Attribute value to the assets comprising the property pool;
b)Identify and give weight to the various contributions of each of the parties as set out in s.79(4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
c)Identify the relevant considerations as set out in s.79(4)(d) – (g), including the matters set out in s.75(2) so far as they are relevant, and then decide whether any further adjustment is appropriate;
d)Consider whether the proposed orders are equitable.

THE PARTIES’ EXISTING INTERESTS IN PROPERTY

In their written submissions each party included a Balance Sheet setting out the agreed and disputed assets and liabilities.
Subsequent to receipt of the written submissions, I arranged for a mention with both Counsel to clarify the balance sheet. The agreed balance sheet, which identifies some disputed assets is as follows:

Description

Wife’s value

Husband’s value

Assets

B Street, Suburb C NSW $1,150,000 $1,150,000

Net proceeds of sale of D Street, Suburb E NSW $590,090 $590,090

CBA Smart Access (…84) $2 $2

CBA Business Transaction (…84) (as at 19 May 2020) $1,511 $1,511

P Company (ABN …) E$5,000 E$5,000

Motor Vehicle 5 $20,200 $20,200

Motor Vehicle 1 $14,810 $14,810

Motor Vehicle 3 $2,750 $2,750

D Street, Suburb E (2/3) $544,666 $544,666

CBA Goal Saver (…03) $906 $906

CBA Complete Access (…64) $4,956 $4,956

Motor Vehicle 4 $13,000 $13,000

Household Content $10,000 $10,000

Household Content $1,000 $1,000

Total $2,358,891 $2,358,891

Addbacks

CBA/R Bank Term Deposits, withdrawn 15/1/2014 and applied to legal fees of H Pty Ltd solicitors as per costs assessment $52,000 $60,000

Interim property settlement – proceeds of sale of D Street, Suburb E $96,194 $100,000

Interim property settlement – proceeds of sale of D Street, Suburb E $100,000 $95,296

Legal fees paid to Taylor & Scott Lawyers excluding fees paid from the husband’s partial property settlement and from his inheritance. $186,239 186,239

Total $434,433 $441,535

Liabilities

CBA home loan registered over Suburb C (x1302) $260,961 $260,961

CBA Diamond Awards MasterCard (…05) $11,778 $11,778

ATO Integrated Client Account $1,926 $1,926

Loan from Ms J $2,677 $2,677

ATO Debt for last financial year $4,354 $4,354

Capital Gains Tax Liability $21,369 $21,369

Capital Gains Tax Liability $26,085 $26,085

Total $329,150 $329,150

Superannuation

Name of Fund Type of Interest

Held by ATO due to low balance Accumulation $641 $641

Super Fund 2 Accumulation $NIL $1,877

Super Fund 3 Accumulation $7,991 $7,991

Total $8,632 $10,509

In order to identify the existing legal and equitable interests in property of the parties, I must consider how to treat the assets/liabilities which both parties claim should be included/excluded from the asset pool. I will address each of the disputed assets/liabilities in turn.

Additional assets both parties agree should be added back into the pool

Partial property distribution to both parties from the proceeds of sale of D Street Suburb E

Both parties agreed that the partial property settlement paid to each from the sale of D Street Suburb E, should be included in the asset pool.
Both agree each party received $100,000 from the sale of the property, they disagree about the amount to be included in the pool.
The wife asserts that she received $96,194 nett from the proceeds of sale, after deduction of various expenses.
The husband asserts that he received $95,296 nett from the proceeds of sale after deduction of various expenses, including the reimbursement of the wife for valuations she had paid.
During the electronic mention, after receipt of written submissions, Counsel for the husband proposed that the sum of $100,000 should be added back for each party. I agree with that proposal.

Legal fees

Both parties agree that some legal fees paid by them should be added back into the asset pool. However, care must be taken to ensure that there is no double counting, in relation to the inclusion of legal fees in the asset pool, and examination of the source of payment of the fees is required.
Counsel for the husband provided a letter dated 2 June 2020 from his instructors which set out the amount and source of the husband’s paid legal fees. The total costs paid by the husband were $191,731.36, the source of which was as follows:
(i)post separation savings/earnings              $23,192
(ii)post separation inheritance  $58,308.85
(iii)interim property settlement  $100,296.14
(iv)credit card  $4,000
Additionally, the husband has outstanding legal costs as follows:
(i)invoice costs but not yet paid $25,964.40
(ii)current estimated costs not yet billed $30,000
(iii)estimated future costs and disbursements $57,376
Counsel for the wife provided a letter dated 9 June 2020 from his instructors which set out the amount and source of the wife’s paid legal fees. The total costs paid by the wife were $189,460.16, the source of which was as follows:
i)$180,603.16 paid to the wife’s former solicitors:
(i)$158,603.15 paid from term deposits of the wife’s father and the wife;
(ii)$20,606.13 paid from sale proceeds of D Street Suburb E pursuant to an order of the Court dated 17 August 2017;
(iii)$1,393.88 paid by the wife from post separation earnings.
ii)$550 paid to her former solicitors from the wife’s post separation earnings;
iii)$275 paid to the wife’s current solicitors from the wife’s post separation earnings;
iv)$6,160 for valuation and mediators fees paid from the wife’s post separation earnings;
v)$1,872 for various disbursements paid from the sale of D Street Suburb E.
Additionally, the wife has outstanding legal costs as follows:
i)costs invoiced but unpaid $61,262.90
ii)estimated future costs and disbursements $44,000
Chorn & Hopkins (2004) FLC 93-204, summarises the principles which relate to the treatment of paid legal fees as follows:
i)the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge;
ii)in determining how to exercise that discretion, regard should be had to the source of funds;
iii)if funds used existed at separation and are such that both parties can be seen as having an interest in them (on account, of contributions) then such funds should be added back as a notional asset of the party, who has the benefit of them.
iv)if the 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 for payment of legal fees be taken into account as a liability in the calculation of the net property of the parties;
v)funds generated from assets or business 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.
In Trevi & Trevi [2018] FamCAFC 173, Murphy J at [31] to [42] inclusive, provides an overview of the relevant authorities and guidelines when dealing with a consideration of add backs of legal fees. At [32] His Honour states that there is little doubt that the statements made in that case (Chorn & Hopkins) have been applied by trial judges ever since.
I do not intend to add back into the pool the legal fees of either party which have been paid from:
i)partial property distributions from the sale of 2 D Street Suburb E;
ii)the sum of $52,000 which the wife concedes was withdrawn from the term deposits and applied towards her legal fees;
iii)the husband’s inheritance.
Both the partial property distributions and the funds the wife withdrew from the term deposits have been added back into the pool and to make a further adjustment for legal fees paid from these distributions would result in double counting. Neither party sought nor do I intend to addback into the pool the husband’s inheritance. I will take that into account pursuant to s75(2)(o) of the Act.
The only legal fees which I intend to consider in the context of addback are fees paid from the post separation earnings of both parties. Referring to the amounts in paragraphs 77 and 79 those amount total:
i)wife - $10,250.88
ii)husband - $23,192
Applying the principles referred to in the preceding paragraphs, I do not intend to addback the legal fees paid from post separation earnings. The parties separated under the one roof in 2005, some fifteen years ago and physically separated in 2016, some 4 years ago. The evidence is that neither party sought to regulate the other’s expenditure nor seek approval from the other. The manner in which they organised their respective finances and expenditure was done without reference to the other party. To add back expenditure after so many years of independent disposition of income would be manifestly incorrect and contrary to the manner in which the parties managed their respective expenditure.
Neither party sought to include as an additional liability in the pool, the outstanding legal costs of each of them, and I do not intend to do so.

Additional assets the husband seeks to include in the pool

At the commencement of the proceedings, the husband sought to addback the following:
i)cash withdrawals made by the wife from her CBA Award Saver account and another CBA account between April 2011 and November 2014 ($66,011); on 9 November 2015 ($10,000) and between 13 September 2016 and 11 March 2019 ($53,128);
ii)withdrawals from CBA/R Bank term deposits on 15 January 2014 ($264,484);
iii)superannuation interest of the wife in Super Fund 2.
Most appropriately, Counsel for the husband conceded during the trial that the husband would not be pursuing the add backs referred to in the preceding paragraph, with the exception of the sum of $60,000 which was withdrawn from the term deposit in either or both of the CBA and the R Bank.
Therefore, the additional assets the husband finally seeks to be included in the asset pool are as follows:
i)$60,000, which the husband alleges was withdrawn from the term deposits;
Applying the principals stated in Trevi, it is appropriate to add back in to the asset pool the funds withdrawn by the wife from the term deposits, which were applied to her legal fees. The wife conceded the sum of $52,000 was withdrawn from her contributions to the term deposits and she had applied that towards payment of her legal fees to her former solicitors.
Counsel for the husband vigorously cross-examined the wife about the source of funds which were eventually deposited into the term deposits.
The wife agreed during cross examination:
i)on 25 August 2003, she deposited funds of $30,005 from her award saver account into a term deposit;
ii)as at 10 December 2005, the balance of her CBA award saver account …64 was $23,670, which was her accumulated family tax A and B benefit;
iii)on 16 October 2006, $20,005 was withdrawn from that account and deposited into a term deposit;
iv)in October 2006, $20,000 from her CBA award saver account, which was accumulated family tax benefit was transferred into a R Bank term deposit;
v)a further $10,500 which was her compensation award monies was also transferred from a CBA account into the R Bank term deposit;
vi)various other amounts were transferred into the R Bank term deposit, although she was unable to remember the exact transactions;
vii)$52,000 of the term deposit was funds from her account and that was applied towards payment of her former solicitors.
Unsurprisingly, she was unable to recall the exact term deposits or banks into which the funds from her savings were accumulated and transferred.
Whilst I accept that there would have been interest accumulated on the portion of funds deposited from the wife’s account into the R Bank term deposit, it is impossible to accurately determine what that would be. In the circumstances, I accept the wife’s evidence about the quantum of her funds which were transferred in to the term deposit, despite her difficulties in recalling the exact transaction sequence, which began in 2003. I intend to include $52,000 in the asset pool.
The husband sought to include an additional superannuation asset of the wife, $1,877 in a Super Fund 2 superannuation fund.
The wife denied any knowledge about entitlements in any such superannuation fund. The wife was not cross-examined about this issue and I accept the wife’s denials in this regard. I do not intend to include the Super Fund 2 superannuation fund as an asset of the parties.

Conclusion as to the existing legal and equitable interests of the parties

As a result of my findings as to disputed assets, and the treatment thereof, the existing legal and equitable interests of the parties, is as follows:

Table of Assets
Description	Value
B Street, Suburb C NSW	$1,150,000
Net proceeds of sale of 2 D Street, Suburb E NSW	$590,090
CBA Smart Access (…84)	$2
CBA Business Transaction (…84) (as at 19 May 2020)	$1,511
P Company (ABN …)	E$5,000
Motor Vehicle 5	$20,200
Motor Vehicle 1	$14,810
Motor Vehicle 3	$2,750
D Street, Suburb E (2/3)	$544,666
CBA Goal Saver (…03)	$906
CBA Complete Access (…64)	$4,956
Motor Vehicle 4	$13,000
Household Contents	$10,000
Household Contents	$1,000
CBA/R Bank Term Deposits, withdrawn 15/1/2014 and paid to her former solicitors	$52,000
Interim property settlement – proceeds of sale of 2 D Street, Suburb E	$100,000
Interim property settlement – proceeds of sale of 2 D Street, Suburb E	$100,000
Total	$2,610,891

Table of Liabilities
Description	Value
CBA home loan registered over Suburb C (x…02)	$260,961
CBA Diamond Awards MasterCard (…05)	$11,778
ATO Integrated Client Account	$1,926
Loan from Ms J	$2,677
ATO Debt for last financial year	$4,354
Capital Gains Tax Liability	$21,369
Capital Gains Tax Liability	$26,085
Total	$329,150
Nett Total	$2,281,741

Table of Superannuation
Name of Fund	Type of Interest	Value
Held by ATO due to low balance	Accumulation	$641
Super Fund 2	Accumulation	$NIL
Super Fund 3	Accumulation	$7,991
Superannuation Total		$8,632
Non-superannuation Assets Total		$2,281,741
Assets Total		$2,290,373

Contributions

Section 79(4)(a) financial contributions

Assets at the commencement of the relationship

At the commencement of the marriage, the husband asserts that he had the following assets:
i)savings of approximately $7,000 in the CBA, although, unsurprisingly he was unable to produce any bank statements to corroborate his claim;
ii)a motor vehicle he estimates was worth $3,000.
At the commencement of the marriage, the wife had an interest in a property at D Street Suburb E, as to a two third share, as tenants in common with her parents. She still retains her interest in that property.
The wife asserts:
i)she purchased the property with her parents in 1988 for the sum of $89,500 and applied her savings of $45,000 towards the purchase price;
ii)whilst at high school, she had worked at K Business at night and on weekends, and in 1985, she commenced an apprenticeship;
iii)by 1988 she had accumulated her savings;
iv)the wife and her parents moved into the property in 1988;
v)after their marriage, the husband moved into the D Street property, with the wife in her parents, where they remained until approximately 2000.
The husband agrees that the wife held and still does have a two thirds interest in the D Street property. At the date of purchase and now, the property is unencumbered. He did not challenge the wife’s evidence as to the circumstances of her acquisition of her interest in the property.

Contribution during and post the relationship

I will address the respective evidence of the parties pertaining to contributions during and post the relationship, including capital sums in the following manner:
i)contributions to the various properties bought and sold during the relationship;
ii)provision of a home for the parties;
iii)husband’s personal injury claim;
iv)wife’s victims of crime compensation payment;
v)application of income of both parties.

Contributions to Properties

Firstly I will address the capital and ongoing contributions to the following properties :
i)D Street Suburb E;
ii)M Street Suburb F;
iii)N Street Suburb G;
iv)B Street Suburb C;
v)2 D Street Suburb E.

D Street Suburb E

The wife’s evidence is that that during their occupation of the property, her parents paid all outgoings referable to the D Street property, and for the living expenses of the couple and ultimately their two children.
The husband agrees that he and the wife occupied the property rent free for approximately nine years, however he asserts that he made payments of outgoings referable to the property during the years of his occupation.
His evidence was that he purchased some groceries for the wife’s parents and paid some of the bills referable to the D Street property, including rates and utilities.
At paragraph 69 of his trial affidavit, the husband lists payments he asserts were made on behalf of the wife’s parents from his CBA cheque account, S Business account, for the period 4 July 1998 until 17 May 2000. The husband’s Counsel annexed to his final submissions an Aide Memoire which cross-references the payments referred to in paragraph 69, with extracts of the relevant bank account, which evidence corresponding debits. The total of the payments is $2,575.23.
There was no explanation by the husband why the invoices and bank statements produced by him were for such a limited period of around 14 months, when the parties lived at the premises for nearly 9 years.
Both the wife and her father assert that the wife’s father would sometimes provide the husband with cash and request him to pay bills, as the wife’s father was not particularly proficient in English and often requested the parties to attend to payments, particularly when he was overseas in Europe.
Having regard to my comments about the parties as witnesses, I consider the explanation offered by the wife and her father to be more plausible than the husband’s evidence that he paid all the bills in evidence and was not reimbursed. However, I accept that this may not always have been the case and it is likely that some bills may have been reimbursed and some would not.
Even if I accept the husband’s evidence, the sum he is able to quantify is not hugely significant, when balanced with the benefit of rent free accommodation for nine years. I accept he may also have made other financial contributions to some bills whilst living in the D Street property.
There was also a dispute in evidence about the contribution of the wife’s parents to the support of the parties and their children during that period.

The husband’s evidence was that the wife’s parents did not support the family, by payment of groceries and food, including basic requirements of the family, such as nappies for the children. He was steadfast in his evidence that he contributed to the support of the family from his income.
Unsurprisingly, the wife and her father gave evidence that the wife’s parents paid all expenses for the family during their time living together. This included provision of vegetables grown in the garden of the property.
Again, having regard to my comments about the parties and witnesses, I consider it highly probable that the household was substantially run in the manner asserted by the wife and her father, particularly in the context of the significant financial assistance which was provided by the wife’s parents to enable acquisition of the properties which are referred to in successive paragraphs of these reasons. I do accept that the husband would have made some financial contributions to bills and living expenses.
The wife’s parents continue to reside in the property.

M Street Suburb F

Both parties agree that the Suburb F property:
i)was purchased in June 1992;
ii)the purchase price was $170,000 plus stamp duty and ancillaries;
iii)the parties obtained a mortgage from CBA of $102,000.
Where the parties differ, is that the husband’s evidence in his affidavit was that he was unable to recall how the balance of purchase price was funded.
The husband was cross examined about paragraph 11 of his affidavit sworn 16 February 2016. That evidence is:
i)the Suburb F property was purchased in or about the late 1990s;
ii)he was unable to recall the purchase price of the property;
iii)he recalled the property was financed by savings and a mortgage.
During cross-examination the husband was unable to provide an explanation why he had deposed to the property being purchased in the late 1990s, when it was purchased in June 1992. His response to the proposition that it was not correct that he and the wife had savings in 1992, was that he did not have any documents so he was unable to say how much they had.
The wife’s evidence is that her parents advanced $75,000 to enable the purchase of the property. That sum is consistent with the amount required to settle the purchase of the property.
In the context of the husband’s contradictory evidence about the source of the balance of the purchase price, and the date of the purchase of the property, I find it highly improbable that the parties had managed to save around about $75,000 between the date of their marriage in February 1991 and the purchase of the property in June 1992. There was no other explanation offered by the husband as to the source of the funds and he did not rule out a contribution by the Wife’s parents to this asset. I therefore find that the wife’s parents contributed the sum of $75,000 towards the purchase of the Suburb F property.
Both parties agree that the Suburb F property was tenanted from the date of purchase until the date of sale and that the rental income covered the mortgage repayments. Additionally, the wife’s evidence was that the rental income of approximately $210 per week was also applied towards the council and water rates and any other costs of ownership. She was not challenged about that evidence.
The property was sold in May 1999 for $212,000. The husband asserts the nett proceeds of sale of the property, $132,710 were deposited into the parties joint account on 21 May 1999, and applied towards the purchase of the Suburb C property.
The wife agrees that, to the best of her knowledge the proceeds of sale of the property were applied towards the purchase of the Suburb C property, although she is unable to be specific as to the quantum of the sale proceeds, as the husband retains all of the relevant paperwork.

N Street Suburb G

Both parties agree:
i)the property situated at N Street Suburb G was purchased in August 1997;
ii)the purchase price was $150,000 plus stamp duty and incidental costs;
iii)the property was a vacant block of land;
iv)the property was unencumbered.
The husband’s evidence is that he is unable to recall the source of the funds to purchase the property. The wife’s evidence is :
i)her father gave her $150,000 to purchase the land;
ii)the parties did not have sufficient funds to purchase the property;
iii)the source of the purchase monies was the proceeds of sale of a block of land in Europe.
The wife’s father swore an affidavit on 19 May 2020. At paragraph 29 of that affidavit, he deposes to having sold an apartment building in Europe in 1995 and realising the equivalent of $185,000. Of those proceeds of sale, $150,000 was paid to the parties to enable them to purchase the Suburb G property. His affidavit of 19 May 2020 exhibits at Annexure K8, documents evidencing the sale of a property in Europe around that time. His affidavit of 20 December 2016, at paragraph 9 states that $117,000 from the sale of the Suburb F property was applied towards the purchase of this property. However, as Suburb F was sold in May 1999 and Suburb G was purchased in August 1997, that evidence is clearly incorrect.
In the context of the husband’s evidence that he is unable to recall the source of funds to purchase the property, I consider it highly likely that if the parties had savings of around $150,000, the husband would have been able to recall. Furthermore, as the husband has produced bank statements and documents dating from March 1997 in relation to the Suburb F property, it is highly probable that if the funds had been saved by the parties, the husband could have produced some documentation. $150,000 was a significant sum in 1997.
I accept the evidence of the wife and find that the wife’s father contributed the purchase price of $150,000 to the purchase of the property. There is no other plausible explanation offered by the husband how the parties would have been in a position to purchase an unencumbered property in 1997.
Neither party adduced evidence about the payment of outgoings referable to the property, prior to its sale in July 2001.
The property was sold in July 2001 for $217,000, of which $205,576 was applied to reduce the mortgage on the Suburb C property.

B Street Suburb C

Both parties agree:
i)the property at B Street Suburb C was purchased in April 2000 for $395,000;
ii)the purchase was financed with:
(a)a mortgage of $206,000 from the Y Bank;
(b)nett proceeds of sale of Suburb F of $132,710, which was sold in May 1999 for $212,000.
The wife’s unchallenged evidence is that stamp duty of $13,265 was also paid.
Where the evidence of the parties differs, is the source of the balance of the purchase price of the property.
The husband’s evidence is that the wife’s parents contributed $20,600 towards the purchase price and the balance was paid from joint savings, including the proceeds of sale of Suburb F. That amount would have been around $50,000-$60,000, also taking into account stamp duty.
The wife’s evidence is that the parties had minimal savings and that the balance was provided by her parents.
I make the same remarks as are referable to the husband’s evidence about the purchase of the Suburb F, Suburb G and Suburb C properties pertaining to the husband’s claims of joint savings and production of documentary evidence.
In his written Submissions, at page 8, the husband submits that of the balance of $189,000 required to settle the purchase of the property, $168,400 came from the parties’ savings, noting that the Suburb F property had been sold in 1999 and the husband had received a Z Company payout in 1999.
As referred to at paragraph 134(ii)(b) hereof, both parties agreed that the nett proceeds of Suburb F were $132,710 and it was applied towards the purchase of this property.
As to the submission that the husband’s Z Company payment could have been the source of funds to fund the balance of purchase price, that is directly contradictory to the husband’s own evidence at paragraph 109 of his trial affidavit, where he deposes that the compensation monies were applied towards renovations at Suburb C. He does not depose to the application of the Z Company funds to the acquisition costs of the property. I refer to the husband’s receipt of the Z Company compensation funds in the following paragraphs.
I accept that the wife’s parents contributed the shortfall in the purchase price.
I also accept the husband’s evidence that his injury compensation payout, which is referred to at paragraphs 160 – 166 hereof, was applied to the renovations of the property, between April and November 2000.
The wife continues to reside in the property.

2 D Street Suburb E

Both parties agree:
i)The property was purchased in September 2003 for $490,000;
ii)The mortgage was refinanced with the CBA in July 2010;
iii)The purchase of the property was financed by a mortgage of $318,500 from BB Bank.
Again, where the evidence of the parties differs, is the source of the balance of the purchase price of the property.
The husband asserts that the wife’s parents contributed $49,000 and the balance, $122,600 was from joint savings.
The wife asserts that her parents contributed (approximately) $112,000 towards the balance of the proceeds of sale.
I make the same remarks as are referable to the husband’s evidence about the purchase of the properties referred to in the previous paragraphs, and I accept the wife’s evidence as to her parent’s contribution to the purchase price of the 2 D Street Suburb E property.
Both parties agree that:
i)the property was sold in October 2019 for $800,000;
ii)the nett proceeds of sale were $781,580;
iii)each of the parties has received partial distributions from the sale proceeds;
iv)the balance of $590,090 remains in the trust account of the husband’s solicitors.
Secondly, I will address the contribution of the wife’s parents providing a home for the parties.

Contribution of wife’s parents providing a home between 1991 and 2000

Both parties agree that upon their marriage in 1991 for a period of 9 years the parties lived with the wife’s parents, and that they were not required to pay rent.
The wife asserts during this time her parents paid for:
i)the outgoings referable to the property including all council and water rates and insurances;
ii)when her parents were in Europe they provided cash to cover property outgoings;
iii)family living costs, including groceries.
Additionally, the maternal grandmother assisted with the care of the children whilst the wife worked and carried out domestic duties including cooking. The husband concedes that she did so, when they were not in childcare.
The husband contends that he paid various utility bills whilst living with the wife’s parents. These include Telstra, electricity and water bills. Paragraph 69 of his trial affidavit refers to various bills which were paid between 4 July 1998 and 17 May 2000 as evidence of his contributions. During the trial he also produced bank statements with corresponding debits. The amounts claimed total $2,575.23, which are insignificant in the overall context of the dispute. The wife’s evidence and that of her father was that the husband was provided with cash to pay the selected bills.
As previously referred to in these reasons, where there is conflicting evidence, I prefer the evidence of the wife. It is entirely believable that the husband would have sometimes been provided with cash to attend to payment of such accounts, particularly as the wife’s father had and still has, limited English skills and travelled to Europe. It is also highly believable that the wife’s parent’s generosity extended to the provision of living expenses of their daughter and her family, whilst they were resident in the household. I also accept that the husband would have paid bills on occasions and contributed to the family living expenses.
I find that the provision of accommodation and payment of some, living expenses by the wife’s parents over a nine year period is a financial contribution of the wife.
Thirdly, I will address the husband's contributions from his personal injury claim and his inheritance.

Husband's Personal Injury Claim

In March 1997, the husband was injured from a fall. As a result of the injuries he sustained to his shoulder and knee, he issued proceedings for damages.
In early 1999, a judge of the District Court of New South Wales ordered that he receive compensation of $156,765. The judgment of His Honour was tendered by Counsel for the husband in the course of his final written submissions.
At paragraph 107 of his trial affidavit, the husband deposes to having received the sum of $152,125.85 after ancillary costs. Exhibit A 36 is an extract from his T Bank passbook evidencing deposit of that amount. During cross examination the husband conceded:
i)that the same page of exhibit A 36 demonstrated that on 15 March 1999 there were payments to his Counsel of $16,000 and to his lawyers of $72,169;
ii)the amount he actually received after payment of costs was $44,579.
The husband appealed against the judgment and later in 1999 the Supreme Court of New South Wales, Court of Appeal delivered judgment. The husband's evidence is that he received a further net payment of $52,854, as a result of settling his appeal which was deposited into his joint account on 2 June 2000, as evidenced by exhibit A 37.
I accept that the husband received a total of $97,433 from his compensation claim which is approximately $55,000 less than originally deposed by him.
The husband's evidence is that he applied his compensation money towards the renovations of the Suburb C property, which was acquired in April 2000.
He was not challenged about the application of the compensation funds and I accept his evidence in that regard.
Fourthly, I will address the wife’s victims of crime compensation.

Wife’s victims of crime compensation

In 1999, the wife’s unchallenged evidence was that she was the victim of a home invasion when she was at home with the children. A gun was held to her head and mouth and a knife was held to her son’s head. She suffered anxiety and post-traumatic stress disorder as a result of this event. On 9 September 2002, she received a payment of $10,500 from a victim’s compensation fund. This sum was deposited into the wife’s CBA bank account.
During cross-examination, the wife’s evidence was that the funds were eventually placed into a term deposit and comprised a portion of the funds of approximately $52,000, which she conceded belong to her from the various term deposits in the CBA or R Bank.
Fifthly, I will address the application of both parties income.

Application of income of each party

The husband’s evidence is that after the family moved into the Suburb C property in 2000, all his income was deposited into the joint account or his business account and applied for the benefit of the family. He claims he paid all mortgage repayments, council and water rates, utilities, telephone, internet, groceries, entertainment costs and general household expenses associated with the children including school fees. This remained the situation until physical separation. He went to great lengths to particularise the deposits of his income into the joint account and the arithmetical calculations justifying his purported financial contribution.
During cross examination he was highly critical of the wife’s inability to obtain historic financial documents including bank statements dating from 2000, some 20 years ago.
The general tenor of his evidence was disparaging and minimising of the wife’s financial contributions from the date of the marriage until physical separation. His case was that the wife had applied her income for her own purposes, such as holidays and not for the benefit of the family. He referred to the wife’s withdrawals from her bank accounts, which had been examined in acute detail, and which he contended were unexplained and should be added back to the asset pool. Fortunately, this misconceived proposition of add backs was abandoned by the husband’s Counsel during the trial.
The wife’s evidence was that she worked as a tradesperson at U Company until the birth of Ms J She returned to work three days a week when Ms J was about six months of age, until taking a further nine months maternity leave after the birth of Mr L. She then returned to work three days a week each Wednesday Thursday and Friday.
During cross-examination, the wife’s evidence was that at that time she was paid in cash by her employer and applied her income to family expenses.
Prior to separation, her evidence was that she deposited her income into the joint account and that she withdrew money from the account for living expenses, as required. Her Centrelink payments were deposited into a separate account.
After separation in 2005, she deposes to purchasing groceries for the family as needed as the husband did not give her money, paying bills at the post office and giving cash money to the husband to pay for bills such as council or water rates and her car expenses. The husband would prefer to pay accounts on his credit card as he was keen to obtain points. She rarely withdrew money from the joint account as two signatures were required to do so.
I find the wife’s evidence to be credible and consistent with her evidence under cross-examination.
In his Written Submissions, in the context of explaining why during the trial he abandoned his misconceived attempt to add back the wife’s post separation expenditure, the husband submits that the court should take into consideration the wife’s post separation expenditure as a contribution on behalf of the husband.
He includes in this alleged unexplained expenditure, $66,011 withdrawn from the wife’s account over a three and a half year period, which was six to nine years after separation. The submissions assert that the wife did not consult the husband about the withdrawals from her bank accounts, whilst the parties were separated under the one roof, and extrapolates that the dissipation of the amounts has resulted in a substantial reduction of assets available for distribution. It is also submitted that the wife was able to expend her income however she chose because of the husband’s contribution to the family finances.
The submissions also refer to withdrawals of the wife from other bank accounts as follows:
i)$10,000 on 9 November 2015 (ten years after separation); and
ii)$53,128 between 13 September 2016 and 11 March 2019, (between eleven to fourteen years after separation).
When viewed in the context of the wife’s evidence that she purchased groceries as needed because the husband did not provide any funds, this amount is unremarkable, and not excessive. There was no cross examination of the wife about that evidence nor put to her that when separated, she should have discussed her day to day living expenditure with the husband. Post separation, as would be entirely expected, both parties applied their income without seeking or requiring permission from the other.
How such amounts can or should be categorised as contributions by the husband is inexplicable and certainly not supported by the authorities cited.
I find that each party contributed their income for the benefit of the family to the best of his/her respective ability, although the amounts contributed may not have necessarily been equal. I discuss this aspect later in these reasons.

Section 79(4)(b): non-financial contributions and section 79(4)(c) contribution of homemaker and parent

The husband’s evidence and into his non-financial and parent and home maker contributions is divided into three discrete periods, from 1991 to 2000, 2000 to 2005 and 2005 to 2014.
He deposes that between 1991-2000, when the family was living at the Suburb E property, the wife’s mother, Ms V Kappa, would cook 5 to 6 nights per week and resisted any offers from the husband to assist with the cleaning up after meals or with the housework in general.

The children were born during this period and the husband claims that he would assist with bottle feeding the children during the night and changing of nappies, and prior to starting school he would play with them before work and upon returning home from work. Additionally, the children would attend crèche one or two days per week.
From 2000 to 2005, whilst living at the Suburb C property he shared preparation of evening meals and cleaning the kitchen. The wife would prepare the children’s breakfasts and he estimates that both parties prepared equal amounts of lunches for the children during their school years up to 2005. He particularises which party did the laundry, washing of dishes and ironing. He deposes to mowing lawns, cleaning the pool, doing the gardening and cleaning the house on weekends.
The husband has located timesheets from his employer from November 2003 to June 2004 which he summarises at paragraph 125 of his trial affidavit and concludes that on average he completed work at 3:30 PM each day which enabled him to return home by 4:30 PM each day to assist with the children. He ceased working for that employer in October 2006 and became a sole trader were upon he estimates that he was usually home at 2 PM.
His evidence is that the children attended a local primary school approximately five minute walk from the home and that he would collect the children approximate two days per week and probably walk them to school or drop them at school once per fortnight.
From 2005, he deposes that the wife’s contribution to the household diminished and that she rarely assisted in the maintenance of the household, cook for the children nor to the best of his knowledge assisted them financially. Although she did not work full-time, he estimates that he would cook an evening meal and that he did 75% of household chores such as washing up, cleaning, vacuuming and laundry. He also was the parent who assisted the children more with homework and extra-curricular activities including Mr L’s sports commitments.
The parties agreed that the husband worked on the renovations to the Suburb C property between April 2000 and November 2000, notwithstanding the injuries he sustained and which resulted in his damages payment. His evidence is that he worked 5 – 6 days per week, 8 hour days a day for 6 months and undertook all of the internal carpentry, with some assistance from his brother in law, Mr CC. He did not earn an income during this time. It is not clear whether he is claiming an additional contribution. However, the husband’s renovation work needs to be considered in the context of the wife’s continuing part time work and her care of the children whilst he was working to that extent.
Unsurprisingly, the wife’s version of the husband’s contributions differs to the husband’s. Her evidence is that upon moving into Suburb C, she continued to work three days a week. In 2002 Ms J commenced school and from thereon she would drive Ms J and later Mr L to school and collect them, although the husband did collect them on occasions. She attended parent teacher interviews and the husband did attend some.
When both children had commenced school, she worked Thursdays and Fridays She took and collected the children to and from school on Monday and Thursday afternoons for a period of six years. She did the cooking cleaning, wash the clothes, shop and paid for a groceries, organise the children for their activities and attended their medical appointments. Both parties took them to sport.
In the early 2000’s, the husband commenced a business, DD Company which involved irregular hours of work. When he worked, he would leave the home most days from 6:00AM and did not return until 7:00PM. He also worked weekends, although there were days when he did not work.
In 2005 the wife commenced working as a casual in hospitality and no longer worked as a tradesperson. This work was usually on Friday and Saturday nights and on Sunday. Whilst she was at work either the husband or her mother would look after the children.
The parties’ daughter, Ms J swore an affidavit on 21 May 2020, which was filed on behalf of the wife. Ms J was not required for cross-examination. I accept Ms J’s evidence that:
i)both parties took the children to school and assisted with homework, depending on the subject;
ii)both parents were involved with different extra-curricular activities;
iii)her mother was at home more during the school holidays as her father worked more hours, although he did stay at home some days.
After reviewing the evidence of all parties, I find that both parties contributed as homemaker and parent to the best of their respective abilities, bearing in mind their respective work commitments.

Section 79 (4)(d),(e),(f) and (g) and the Section 75(2) factors

Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.

The orders which I propose to make will not have any effect on the earning capacity of either party.

Section 79(4)(e): the matters referred to in section 75(2) so far as they are relevant

The husband is aged 54 and his health is compromised to some degree, which is referred to later in these reasons. He is currently self-employed and estimates his business derives income of $528 per week plus GST, although his tax return for 30 June 2019, which is exhibit A – 51 discloses a taxable income of $40,971. His expenses are set out in his Financial Statement filed 19 May 2020.
On 8 June 2019, the husband made a claim on his W Bank income protection insurance arising from Tennis Elbow in his left elbow and Bursitis in his left shoulder. Since 16 July 2019 he has received income protection insurance payments from W Bank of between $5,700 and $6,800 per month. The W Bank payments commenced on 16 July 2019 and will continue for 5 years from the date of the first payment, until July 2024.
The husband’s evidence is that he does not undertake jobs which require significant manual labour and his work is primarily fixing issues with customers equipment. During cross-examination he conceded that he employed people to carry out more physical work on the bigger jobs by using subcontractors as required. For example, subcontractors would be utilised when a job required significant amounts of cables.
The husband’s expenses are set out in his Financial Statement filed 19 May 2020. During cross-examination the husband conceded that he had not paid any rent since October 2017 and that he was provided with rent free accommodation by his partner.
The wife is aged 50 and enjoys reasonable health. She has recently undergone an operation for a longstanding medical condition. Prior to the COVID-19 pandemic she was casually employed in hospitality as a supervisor. She earned approximately $750 per fortnight depending on available work. She is now in receipt of government social security benefits under the Job Keeper scheme. On 6 April 2020, she commenced as an assistant at healthcare facility and earns $367 for two days. On 5 May 2020, she commenced to receive a carers pension of $944 per fortnight to care for her ill mother, which will be reduced depending on the amount of hours worked. As at the date of trial and these reasons, the Job Keeper scheme is scheduled to conclude in September 2020 and given the current pandemic restrictions, the wife’s future employment prospects at the catering venue are unknown.
The wife’s expenses are set out in her Financial Statement filed 22 May 2020.

Section 79 (4)(f) and (g)

There are no matters relevant to these sections.

Section 75(2)(o): any fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken into account

In April 2018, the husband received an inheritance from his late father's estate, some 15 years post separation in 2005. Neither party submitted that this should be included in the asset pool and during the mention on 23 July 2020, both Counsel agreed it should be taken into account pursuant to s75(2)(o).
At paragraph 115 of his trial affidavit he deposes to having received the sum of $69,119 from the estate. Exhibit A 41 is a letter from the estate solicitors dated 27 March 2019. That exhibit demonstrates that the husband received $143,254.88 from the estate. The husband evidence is entirely inconsistent with his exhibit.
It is apparent from the exhibit that the husband received approximately $140,000 from his late father's estate which was a one seventh share.
During cross-examination he was asked why he did not disclose the true extent of the inheritance. His evidence was that he had received just over $100,000, he didn’t take into account the amounts he repaid to his siblings and he would have to do the calculations. I consider that response to be unsatisfactory.
The husband deposes that the inheritance was applied as follows:
i)$32,178 to pay his Visa card;
ii)$10,000 to pay his solicitors on 31 May 2018;
iii)the balance on his general living expenses.
That evidence of the husband is contrary to the letter from his solicitors dated 20 June 2020 which is referred to at paragraph 77 hereof, where it is stated that $58,308.85 of legal costs was paid from the post separation inheritance.
I find that the husband received approximately $140,000 from his late father’s estate and as a result of the husband’s lack of transparency in his evidence, that it is not possible to make a finding as to the complete application/disposition of the funds. I am however able to find that none of the funds were applied for the benefit of the wife.
I intend to take into consideration the receipt of the husband’s inheritance.

Discussion and Conclusion as to Contributions

It is not controversial that:
i)the parties married in 1991 and separated under the one roof in 2005, a marriage of 14 years duration;
ii)they remained living separated under the one roof until August 2016, 11 years after they separated.
Counsel for the wife submitted in the absence of the discrete contributions, which are considered earlier in these reasons, it would be appropriate to assess the contributions of the parties as equal. However the initial contribution of the wife and the advances of her parents warrant departure from such an assessment, so that the wife’s contribution should be assessed at 70%.
The husband’s Counsel did not directly address the issue of what weight should be accorded to the wife’s initial contribution of her interest in the D Street property, other than to submit that in the context of a lengthy marriage and all of the other contributions of the parties, the respective contributions of the parties should be assessed equally.
Firstly, Counsel for the wife submitted the Court should give major weight to the wife’s initial contribution of her interest in the D Street Suburb E property and that the Court should assess the value associated with such a contribution, no matter the length of the marriage or the quantum of the initial input.
Reference was made to the oft quoted statement of the Full Court in Pierce& Pierce (1999) FLC 92-844 at p85,881:
It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
The property was purchased unencumbered in 1988 and the wife then owned and still does a two thirds interest in the property, which is valued at $540,000, almost 25% of the asset pool as determined by me. The husband does not submit that he made any direct contribution to the initial acquisition of the property although he does assert and I accept that he did make some direct financial contribution to the property during the 9 years the family lived with the wife’s parents.
Secondly, I will address the submissions relevant to the advances of the wife’s parents.
The wife’s case is that her contributions should be accorded greater weight because of the significant lump sums contributed by her parents. She does not seek to characterise the advances as loans, rather as advances made on her behalf by her parents.
The contributions enabled the parties to purchase a series of properties, which ultimately resulted in the parties being able to reduce the mortgage on the Suburb C property and benefit from a significant increase in value of the D Street Suburb E property. Absent these lump sum contributions, the couple would never have been in a position to purchase the properties.
Counsel for the husband submitted that the advances of the wife’s parents should be regarded as contributions made by both parties.
Counsel for the husband devoted considerable cross-examination of both the wife and her father about the status of the advances, that is, whether they were loans or gifts.
Counsel for the wife submitted:
i)not once in the five year history of litigation between the parties, did the wife contend that the advances of her parents were enforceable loans;
ii)had she sought to do so, she would inevitably have been unsuccessful;
iii)the perception of the wife’s father was that they were loans, but such characterisation is that of a lay person and is not determinative of the legal nature of the advances;
iv)the wife’s parents had never taken any steps to call for repayments;
v)the wife’s father was not asked in cross-examination what steps he had taken to enforce repayment of the loans.
Counsel for the wife referred to various authorities where the court is entitled to disregard in entirety or partly a liability not likely to be enforced, for example a loan from a parent of a party, or because of the circumstances surrounding the incurring of the liability, it ought to be wholly or partly disregarded in determining the appropriate order to make when adjusting property between parties. Biltoft & Biltoft (1995) FLC 92-614 and Af Petersens & Af Petersens (1981) FLC 91-095.
I accept the submissions of Counsel for the wife in respect to the advances not being sought to be characterised as loan. Counsel for the husband also submitted that the advances were not loans, and that the wife’s father appeared resigned to the fact that he would not be repaid by either party. I accordingly find that the advances are not loans.
Having determined that the advances were not loans, I will address whether the advances should be considered as contributions on behalf of the wife or both parties.
Counsel for the wife submitted that the authorities, Kessey & Kessey (1994) FLC 92-495; [1994] FamCA 162 and In the Marriage of Gosper (1987) 11 Fam LR 601, make it clear that even if there was a close relationship between parents and a son-in-law, the provision made by his parents-in-law to the then married couple is deemed to represent a contribution to the benefit of their adult married offspring and not their son-in-law.
In Kessey, the Full Court said:
This is because this case would establish that where there is no evidence of any [84727] intention by a parent-donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the fact of the parent- child relationship, especially in circumstances where that has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent. In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.
Fogarty J stated in Gosper:
Here the gift of the McCrae land was to the parties jointly. However, in my view, it is clear that the motivating circumstance was the relationship between the wife's parents and the wife and it was transferred to benefit her and because she was a daughter of the Thompsons.
The property at McCrae should be treated as a financial contribution made directly on behalf of the wife. The husband has made no contribution to that property. The small amount of clearing and the payment of one year's rates are, in the context of the value of this property, so minor that they should be disregarded.
Counsel for the husband submitted that there was evidence to establish that it was not the intention of the wife’s parents to benefit only their daughter. That evidence includes:
i)a reference in the wife’s affidavit filed 16 March 2016 to the parents “lending to us” monies for various acquisitions;
ii)evidence of the wife’s father in his affidavit sworn 20 December 2016 that the funds were advanced to both parties;
iii)the evidence of the wife’s father under cross-examination that the funds were advanced to enable a couple to benefit from a reduced interest-rate;
iv)the abandonment of enforcement of repayment.
I do not accept the submissions of Counsel for the husband that the advances should be seen as an advance to both parties. It is clear to me that the funds were advanced to the parties because of the relationship between the wife and her parents and a desire to financially assist her. In the words of Fogarty J in Gosper the motivating circumstance was the relationship between the wife’s parents and the wife.
The capital amounts advanced by the wife’s parents will be treated as a contribution by the wife.
Taking into account my findings as to the quantum of the advances to enable the parties to purchase the properties referred to at paragraphs 105 to 152 hereof, the total amount advanced by the wife’s parents is roughly $387,000 calculated as follows:
i)$75,000 in June 1992 (Suburb F);
ii)$150,000 in August 1997 (Suburb G);
iii)$50,000 - $60,000 in April 2000 (Suburb C);
iv)$112,000 in September 2003 (Suburb E).
The husband’s “lump sum” contribution has been determined as $97,428 in 1999, being his Z Company compensation payment applied towards the renovations of Suburb C.
The lump sum advances of the wife’s parents additionally were the “springboard” which enabled the parties to purchase subsequent properties, as profit was realised from the sale of one property and applied to the acquisition of the next.

Husband’s compensation award

The wife submits that the compensation payout should not be considered as the sole contribution of the husband. Rather, the wife’s contribution towards the damages payout should also be considered in the overall assessment of contributions.
The wife’s unchallenged evidence is:
i)at the time of the injury the husband’s arm was in a sling;
ii)she cooked and cleaned for him and washed his clothes;
iii)she took him to medical appointments and drove when he could not drive himself.
Counsel for the wife submitted:
i)the wife’s contribution towards the voluntary care provided to the husband , could be regarded as Griffiths and Kerkemeyer damages; and
ii)her income which would have assisted the household during periods, when the husband was incapacitated
should be regarded as a contribution towards the compensation payout and that the weight the court attributes to the husband’s contribution should be diminished.
In support of the proposition referred to in the preceding paragraph, the wife referred to various authorities, Griffiths v Kerkemeyer (1977) 139 CLR 161, Re Q (Damages for sexual assault) (1994) 18 Fam LR 442.
During the trial, Counsel for the wife called for a response to a letter dated 30 July 2019 from his instructors to the husband’s solicitors. That letter sought a breakdown of the components that led to the decision of the District Court of New South Wales awarding the husband personal injuries damages. There was no response made to the call.

Counsel for the wife submitted that the failure to respond to the call resulted in the wife relying on the principles in Jones & Dunkel (1959) 101 CLR 298, that such evidence would not have assisted the husband. Implicit in the failure to respond is that the husband’s breakdown of personal injury components included a Griffiths v Kerkemeyer type factor as well as past economic loss, and that those components are the type that a non-injured spouse can make as a contribution in family law property proceedings.
The issue of the contribution of a non-injured spouse was considered by the Full Court of this court in Aleksovski & Aleksovski (1996) 20 Fam LR 894, where the majority of the Full Court said at [903]
In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.
There is merit in the submissions of the wife’s Counsel as I accept that during the time the husband was injured, the burden of the household tasks and caring for the children would have primarily been her responsibility. However, I attach significant weight to the husband’s contribution of the damages payout which were applied for the benefit of the family.

Contribution of income of the parties and non-financial contributions

The husband’s initial case seemed to advance the proposition that because his day to day contributions of income to the family, substantially exceeded the wife’s, his contributions should be accorded greater weight than the wife’s financial and non-financial contributions.
It is unclear whether that proposition is relied upon by the husband in his final submissions, although he refers to the Notice to Admit Facts and Authenticity of Documents which was filed on 18 May 2020. It was submitted that the husband applied his income towards joint expenses through the relationship and post separation.
I am of the view that there should not be any discrepancy between the parties, in assessing their respective contributions, both financial and non-financial apart from the discrete contributions I have addressed individually, including:
i)the wife’s initial contribution of her interest in D Street Suburb E;
ii)the lump sum advances of the wife’s parents which were applied to the acquisition of various properties;
iii)the husband’s personal injury claim.
I prefer the wife’s evidence about her version of post 2005 homemaker and parenting contributions and that of the unchallenged and evidence of the Ms J, which suggests that the parenting contributions were roughly equal and that the wife was at home more frequently than the husband.
As previously referred to, I am of the view that both of the parties contributed both financially and non-financially to the best of their capacity during the marriage and whilst a separated under the one roof, until final separation in 2016. I agree with the submissions of Counsel for the wife that adopting the correct approach does not require an assessment of who made the greater financial contribution nor who made the greater homemaker and parenting contribution during the relationship and while separated under the one roof.

Conclusion as to Contributions

As previously referred to, Counsel for the husband submitted that I should assess the party’s contributions as equal.
Counsel for the wife submitted I should assess the contributions as to 70% in favour of the wife and 30% in favour of the husband. That would result in a contribution differential of $916,149 in favour of the wife. In my view, neither submission is appropriate.
I do not intend to attach percentages to the parties' initial contributions; those made during the marriage and post-separation.
As the Full Court said in Dickons & Dickons [2012] FamCAFC 154:
[23] We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24] There can be little doubt that the classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions", can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
The initial contribution of the wife’s interest in the D Street Suburb E property, which is not challenged and my findings pertaining to the advances of the wife’s parents, even when balanced with the husband’s compensation claim, lead me to the irresistible conclusion that the contributions of the parties cannot possibly be considered as equal. Those “lump sum” or “discrete” contributions carry significantly greater weight than the other financial and non-financial, both direct and indirect, contributions of the parties. I do, however, agree with the submission of Counsel for the wife, that absent those discrete contributions, the contributions of the parties would have been assessed as equal.
Having regard to my findings as to contribution and weighing up and assessing the myriad of contributions of the parties, both financial and non-financial, direct and indirect, at the commencement of the relationship, during the relationship and post-separation, and their contributions as homemaker and parents, and taking into consideration pursuant to s75(2)(o), the husband’s inheritance, I assess those contributions as 60% to the wife and 40% to the husband. Applying that assessment to the asset pool I have determined, results in a contribution differential of $458,074.

Discussion and conclusion as to Future Needs

Counsel for the husband initially submitted in accordance with the husband’s Outline of Case document that there should be an adjustment in favour of the husband of 10% of the asset pool on account of his medical conditions in tandem affecting his income and earning capacity and arguments pertaining to nondisclosure. The wife’s alleged non-disclosure was not advanced in the husband’s final written submissions, where it was contended that there should be an adjustment of not less than 5% in favour of the husband on account of s79(4)(e) considerations.
A 5% adjustment of the asset pool as determined by me equates to a differential between the parties of approximately $229,037. Such an adjustment in his favour on the basis of the husband’s alleged medical conditions, income and earning capacity cannot be supported.
The gravemente of the husband’s asserted inability to earn income is his health and underlying medical conditions.
Prior to the trial, the husband filed an Application in a Case seeking the appointment of a Single Expert Witness in relation to his health. That application was heard and determined by me on 28 April 2020. An order was made appointing a single expert witness. Dr O was appointed to provide his opinion about the husband’s health.
In order to understand the application made by the husband, as previously referred to, he sustained injuries in 1997 from a fall. He injured his shoulder and knee and required surgery as a result of that accident. He asserts that he has continual health problems although it is not certain that that incident was the cause of his health difficulties.
During cross-examination he conceded that he had been involved in a car accident in 2012 with his son, following which he was taken to hospital and was treated with rest and physiotherapy.
As to the extent of his current health problems, the husband relied on the report prepared by Dr O, which was annexed to his affidavit filed 26 May 2020. He also particularised his health history in his trial affidavit. In summary the husband has problems with his back, shoulders, right knee, osteoarthritis in his left hand, a tear of a tendon in his right elbow and some lung problems.
The husband attended a teleconsultation with Dr O on 8 May 2020, however Dr O was unable to conduct a physical examination. He was provided with extensive X Rays, scans and reports. In particular he refers to a report dated 4 May 2020 of Professor EE, the husband’s treating specialist. That report concludes:
At this stage, as he is improving, I think we can see how he goes with a Conservative approach with some physiotherapy and exercise. If of course, his foot drop deteriorates, or he gets increasing pain or other symptoms, we need to consider an L5/S1 laminectomy and fusion and we talked about this at length today.
Dr O agrees with that sentiment and states:
The natural history of all of the areas of injury and disability is for deterioration over time. The back is the most vulnerable. He has recently seen his treating neurosurgeon, Professor EE, and because his symptoms in the league are slowly improving, Professor EE has recommended conservative care.
I strongly suspected that within the next 2 to 3 years, he will need to consider a surgical stabilisation procedure as I do anticipate the leg will deteriorate and the pain will become unbearable.
The treatment will include at the very least a fusion at the L5/S1 level but I strongly suspect that the L4/5 will need to be included as well. In regard to the neck, shoulders and the right knee, I do not anticipate any further interventional treatment in the foreseeable future, but he should be encouraged to exercise to optimise function. He also should be encouraged to avoid strenuous and repetitive tasks overhead, kneeling, squatting, climbing or repetitive bending and lifting in order to limit any exacerbation of the condition that may occur over time.
In terms of the nexus between the husband’s health and his capacity to earn an income, Dr O is of the opinion that his ongoing disability will impede his ability to work as an technician or any other chosen field, particularly in activities that require him to use his arms overhead or to bend, twist, lift or kneel and squat.
It is apparent from an examination of the report that Dr O seems to be under the impression that the husband has not been able to return to work. The evidence of the husband is contradictory to that proposition, as he deposes to continue to work for his own business. Furthermore, his tax return, exhibit A 51 clearly demonstrates that the husband was working during the 2018/2019 financial year.
During cross-examination, the husband conceded that he had not told Dr O the following relevant information:
i)he had conducted his business, P Company, since 2011;
ii)had carried out manual work, when he travelled to Melbourne in 2018 and constructed corrugated walls in a storage facility;
iii)carried out renovations to the Suburb C property for 6 months;
iv)he had ridden a motor bike as recently as late 2018 or early 2019.
Whilst I accept the unchallenged diagnosis of Dr O and Professor EE, it is clear that the husband’s health impairments have not precluded him from earning an income, albeit his evidence is that he employs contractors to carry out physical work. What is different is the nature of the duties he undertakes, not that he is unable to earn an income. I was left with the impression that his current duties were more administrative and IT related and involved fixing customer computer and internet related problems, which does not involve heavy physical work. He also conceded that his taxable income of 2019, $40,971 was around double his income of 2016, based on a comparison of the income deposed to in his Financial Statement sworn February 2016 and his tax return for the 2019 financial year. His recent income has also been sufficient to enable the husband to pay income protection insurance premiums of around $204 per week, as deposed to in his recent Financial Statement.
The husband’s own evidence is that he has the certainty of considerable income protection payments until July 2024. The payments are $6,008 per month. The wife does not enjoy any such certainty. Her employment prospects can only be assessed on the current evidence. I cannot speculate about the continuation of Job Keeper, nor whether the wife’s pre COVID-19 employment will be available to her at any time in the future. Apart from the carer’s pension, the evidence does not establish any continuity of income for the wife in the foreseeable future. She was not challenged about her future employment prospects.
In conclusion, I am of the view that the husband’s income position, at least until July 2024 is superior to the wife. It is impossible to reach any definitive conclusion about the respective earing capacities beyond that date. The husband has certainty of income and enjoys rent free accommodation provided by his partner. There was no evidence to suggest that the rent free accommodation had a limited duration. Neither party has received the benefit of a tertiary education nor have historically been high income earners. Both children are adults and neither parent has the responsibility to care for them. Accordingly I have determined that there should not be any adjustment to either party arising from s.75(2) factors.

Alleged non-disclosure by the wife

The husband initially was highly critical of the wife for her alleged failure to make full and frank financial disclosure. That submission seemed to be in the context of the argument of the husband, which was properly abandoned during the trial, that the wife’s expenditure post separation should be added back into the pool. The final submissions did not pursue an adjustment in favour of the husband, arising from the wife’s alleged failure to disclose.

Adjustment of Interests

On the asset pool as determined by me a division of assets of 40% in favour of the husband and 60% in favour of the wife will result in the husband receiving $916,149 and the wife receiving $1,374,224.
The division of assets will result in the wife retaining her home at B Street Suburb C, which is valued at $1,150,000 and her interest in D Street valued at $544,666, together with her motor vehicle and some minor assets. She will of course be liable for the mortgage of $260,961 secured against the Suburb C property. which will need to be increased to make a payment to the husband.
The husband will receive $590,090 from the funds currently held in trust, retention of various assets and liabilities and an additional payment from the wife, of $226,965.
The assets and liabilities of each party will be as follows:

Wife
Assets	Value
B Street, Suburb C	$1,150,000
D Street Suburb E	$544,666
CBA Goal Saver	$906
CBA Complete Access	$4,956
Motor Vehicle 4	$13,000
Household contents	$10,000
Interim property settlement	$100,000
Cash withdrawn from Term deposit	$52,000
Superannuation	$7,991
Total assets	$1,883,519
Liabilities
CBA Home Loan Suburb C	$260,961
Capital Gains Tax liability	$21,369
Cash payment to husband	$226,965
Total Liabilities	$509,295
Nett assets	$1,374,224

Husband
Assets	Value
Funds in trust	$590,090
Cash payment from wife	$226,965
CBA Business transaction account	$1,511
CBA Smart Access account	$2
P Company	$5,000
Motor Vehicle 5	$20,200
Motor Vehicle 1	$14,810
Motor Vehicle 3	$2,750
Household contents	$1,000
Partial property settlement	$100,000
Superannuation	$641
Total assets	$962,969
Liabilities
CBA Diamond awards MasterCard	$11,778
ATO integrated account	$1,926
Loan from Ms J	$2,677
ATO Debt	$4,354
Capital Gains tax liability	$26,085
Total liabilities	$46,820
Nett Assets	$916,149

I am satisfied the proposed division of assets is just and equitable and I intend to make orders accordingly.
I am also satisfied that the husband should pay to the wife from his share of the asset pool, the costs of $2,950 owing pursuant to the Order of February 2018. That can be achieved by the wife receiving that amount from the funds held in trust.

I certify that the preceding two hundred and seventy nine (279) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 15 September 2020.

Associate:

Date: 15 September 2020

Description		Wife’s value	Husband’s value
Assets
B Street, Suburb C NSW		$1,150,000	$1,150,000
Net proceeds of sale of D Street, Suburb E NSW		$590,090	$590,090
CBA Smart Access (…84)		$2	$2
CBA Business Transaction (…84) (as at 19 May 2020)		$1,511	$1,511
P Company (ABN …)		E$5,000	E$5,000
Motor Vehicle 5		$20,200	$20,200
Motor Vehicle 1		$14,810	$14,810
Motor Vehicle 3		$2,750	$2,750
D Street, Suburb E (2/3)		$544,666	$544,666
CBA Goal Saver (…03)		$906	$906
CBA Complete Access (…64)		$4,956	$4,956
Motor Vehicle 4		$13,000	$13,000
Household Content		$10,000	$10,000
Household Content		$1,000	$1,000
Total		$2,358,891	$2,358,891
Addbacks
CBA/R Bank Term Deposits, withdrawn 15/1/2014 and applied to legal fees of H Pty Ltd solicitors as per costs assessment		$52,000	$60,000
Interim property settlement – proceeds of sale of D Street, Suburb E		$96,194	$100,000
Interim property settlement – proceeds of sale of D Street, Suburb E		$100,000	$95,296
Legal fees paid to Taylor & Scott Lawyers excluding fees paid from the husband’s partial property settlement and from his inheritance.		$186,239	186,239
Total		$434,433	$441,535
Liabilities
CBA home loan registered over Suburb C (x1302)		$260,961	$260,961
CBA Diamond Awards MasterCard (…05)		$11,778	$11,778
ATO Integrated Client Account		$1,926	$1,926
Loan from Ms J		$2,677	$2,677
ATO Debt for last financial year		$4,354	$4,354
Capital Gains Tax Liability		$21,369	$21,369
Capital Gains Tax Liability		$26,085	$26,085
Total		$329,150	$329,150
Superannuation
Name of Fund	Type of Interest
Held by ATO due to low balance	Accumulation	$641	$641
Super Fund 2	Accumulation	$NIL	$1,877
Super Fund 3	Accumulation	$7,991	$7,991
Total		$8,632	$10,509