PILCH & PILCH - [2016] FamCA 740

FAMILY COURT OF AUSTRALIA

PILCH & PILCH

[2016] FamCA 740

FAMILY LAW – PROPERTY SETTLEMENT – Long marriage – issue as to contributions and the significance of an inheritance received by the husband – where the husband sought to minimise the wife’s contributions as homemaker and parent during the relationship – husband argues that his initial contributions and an inheritance justify a 74/26 adjustment in his favour – mathematical approach adopted by the husband – where the husband’s initial contributions comprise of two properties sold over forty years ago – no adjustment made with respect to the husband’s initial contributions – where the husband’s inheritance received at the approximate mid-point of a 42 year marriage – where some of the properties claimed as an inheritance were held by the husband prior to his mother’s death – where properties held by the husband were improved during the course of the marriage – adjustment made in the husband’s favour to account for the properties received from his mother or her estate –final property orders made for a 60/40 division in the husband’s favour.

FAMILY LAW – PROPERTY SETTLEMENT – Where the wife alleges she was subjected to family violence during the marriage and that there should be an adjustment in her favour – Kennon v Kennon (1997) FLC 92-757 considered – finding that the husband was financially controlling and verbally abused the wife – no evidence as to the effect of the husband’s behaviour upon the wife’s contributions – Kennon argument not made out.

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Bremner & Bremner (1995) FLC 92-560
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
Clives & Clives [2008] FamCAFC 172; (2008) FLC 93-385
Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060
Garrett & Garrett (1984) FLC 91-539
Gould & Gould [2007] FamCA 609; (2007) FLC 93-333
Kennon v Kennon (1997) FLC 92-757
Norbis v Norbis (1986) 161 CLR 513
S & S [2003] FamCA 905
Sinclair & Sinclair [2012] FamCA 388
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling [2013] FamCA 57

APPLICANT:

Ms Pilch

RESPONDENT:

Mr Pilch

FILE NUMBER:

MLC

1749

2013

DATE DELIVERED:

2 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

15 – 18 March 2016 & 15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Beswick Foulkes Family Law

COUNSEL FOR THE RESPONDENT:

Mr Thompson

SOLICITOR FOR THE RESPONDENT:

Johnston Family Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilch & Pilch 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: MLC 1749 of 2013

Ms Pilch

Applicant

And

Mr Pilch

Respondent

REASONS FOR JUDGMENT

Introduction

These are property proceedings between Ms Pilch (“the wife”) and Mr Pilch (“the husband”) pursuant to s 79 of the Family Law Act1975 Cth (“the Act”).
The husband and the wife were married for a period of 43 years, a union that produced three children, now adults. Although the parties have shared half a lifetime together, these proceedings were marked by the antipathy each exhibited towards the other. Whilst there was agreement as to the value of their legal and equitable interests and that justice and equity required that there be an adjustment of those interests, there was little other common ground between them, the parties not even able to agree as to the division of their family photographs.
It was submitted on behalf of the wife that the husband, by virtue of the manner in which he conducted the proceedings, sought to airbrush from his life her very existence. The husband’s attitude and approach to matters such as the division of the parties’ chattels, including their collection of art and personal photographs, coupled with the submissions made upon his instructions during the closing of his case as to the appropriate division of the parties’ interests, give much force to the wife’s contention. I will address those issues in the course of this judgment.
The principal issues between the parties about which determination is sought are:-
(a)Whether the wife has failed to disclose assets, the husband alleging that the wife has failed to account for in excess of $600,000;
(b)Whether the wife has been imprudent in the manner in which she has dealt with her assets and if so, the impact of such conduct upon the property division;
(c)The weight to be attributed to the contributions made by the husband at the commencement of the cohabitation as a result of property held by him at that time;
(d)The weight to be attributed to the husband by reason of inheritances or gifts received by him from his mother during the marriage, the husband alleging that he received almost $5.7 million from his mother’s estate and sister during the marriage;
(e)The weight to be attributed to the wife’s contributions during the marriage from her efforts as a homemaker and parent and in support of the husband’s property developments;
(f)Whether the wife was subjected to family violence during the relationship and if so whether that conduct by the husband made the wife’s contributions more difficult;
(g)Whether there should be an adjustment pursuant to s 75(2) of the Act.
The wife sought orders that there be a transfer to her of the property held by the husband at X Street, the effect of which would be a division of their interests as to 44 per cent to the wife and 56 per cent to the husband.
The husband’s position, maintained throughout the hearing, was that the wife retains assets held by her and that he pays to her the sum of $500,000. Based upon the parties’ agreed balance sheet that proposal represents an adjustment of approximately 26 per cent of the parties’ interests to the wife, with the husband retaining 74 per cent of their interests.

The Parties

The husband was born in 1944 and is aged 71 years. He is a professional and save for the early years of the marriage was self-employed, developing property throughout the parties’ relationship.
The wife was born in 1948 and is aged 67 years. At the time of the parties’ marriage, the wife was studying teaching. Upon the marriage, the wife did not complete that course.
Throughout the marriage the wife was engaged in homemaker and parenting duties and contends that she supported and assisted the husband in his property developments.
The husband was critical of the wife for failing to complete her teaching course and for what he alleged was her refusal to undertake paid employment during the marriage. The nature and extent of the wife’s contributions, including to the parties’ property developments, was an issue between the parties which I will address later in this judgment.
The parties married in 1970; in late-1996 or early 1997 they separated. During that period of separation the wife was an in-patient at the A Clinic for a period of approximately four weeks.
On 29 May 1997 final orders were made by consent in the Family Court of Australia with respect to the parties’ property interests (“the 1997 orders”).
In mid-1997, within a matter of weeks of the making of the 1997 orders, the parties resumed cohabitation. Final separation occurred in April 2012 when the wife vacated the former matrimonial home.
The parties divorced in October 2013.
There are three children of the marriage, AP (aged 44 years), BP (aged 42 years) and CP (aged 38 years). Both AP and CP live independently. BP lives with the wife from whom he receives some limited financial assistance.

Material Relied Upon

The wife relied upon the following material:-
·Case outline document (including Minute of Orders sought) filed 11 November 2015;
·Affidavit of the wife filed 12 December 2014;
·Affidavit of the wife filed 13 February 2015;
·Affidavit of the wife filed 24 August 2015;
·Affidavit of the wife filed 15 October 2015;
·Affidavit of Ms E filed 16 December 2014;
·Affidavit of Ms O filed 16 December 2014;
·Affidavit of Ms K filed 22 December 2014;
·Affidavit of Dr W filed 19 February 2015;
·Amended Financial Statement of the wife filed 15 October 2015.
The husband relied upon the following material:-
·Case outline and summary of argument dated 13 November 2015;
·Affidavit of the husband filed 30 January 2015;
·Affidavit of the husband filed 22 September 2015;
·Affidavit of the husband filed 25 September 2015;
·Affidavit of Mr F filed 2 February 2015;
·Affidavit of Mr V filed 23 February 2016;
·Affidavit of Mr V filed 13 February 2015;
·Financial Statement of the husband filed 22 September 2015.

The Hearing

The hearing commenced before me on 15 March 2016 and proceeded over five days. Each of the parties was represented by counsel throughout the proceedings.
I was informed at the commencement of the hearing that as a result of a conference of the appointed expert valuers, the parties’ pool of assets, liabilities and financial resources had an agreed value. A schedule of the assets, liabilities and financial resources was prepared and tendered on the second day of the hearing (Exhibit W2).
The wife and her witnesses, Ms O, Ms K and Ms E were cross-examined. The husband and his witnesses, Mr F and Mr V were also cross-examined. At the conclusion of the evidence, the matter was adjourned part-heard to 15 April 2016 to enable the parties to consider that evidence and formulate their closing submissions.

The Evidence

In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140 of the Evidence Act1995 (Cth) provides that, without limiting the matters the court may take into account in applying that standard of proof, the court must take into account:-
(a)the nature of the cause of action or defence;
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and the demeanour of the witnesses when giving their evidence in Court.
In making my findings, I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
Counsel for the husband submitted that the wife was not a reliable witness and that where her evidence is in conflict with that of the husband, the husband’s evidence should be preferred. For the reasons that follow I do not accept that submission.
In support of that submission the husband’s counsel relied upon the contradictory evidence given by the wife with respect to the husband’s attendances upon her when she was an in-patient at the A Clinic in early 1997. The wife was in psychiatric care at that clinic for a period of approximately four weeks following the sale of the former matrimonial home and the announcement by the husband that he wished to separate. The husband is critical of the wife due to the inconsistency between the pleadings in her Amended Initiating Application filed 8 August 2014, wherein it is asserted that the husband “repeatedly visited” her at the clinic and her Affidavit filed 20 June 2013 where she deposes at paragraph 69 that the husband visited her at the clinic once during that period.
When cross-examined about her recollection of that period, the wife stated that she could not recall how many occasions the husband visited her; it was her evidence that she was on high doses of medication at that time. She described that period as being the “middle of [her] total mental destruction”. The wife denied that she had a poor memory of events but acknowledged her difficulty in recalling events that occurred in 1997 when she was in hospital.
It is clear that the wife is confused as to the events that occurred during the period of her hospitalisation. However, it does not follow that all of her evidence is tainted and therefore untruthful. That the wife has an imperfect recollection of events that occurred almost 20 years ago at a time when she was suffering illness, was hospitalised and required psychiatric care is unsurprising; of greater moment is that the husband would rely upon the wife’s poor recall of that period to support his contention that his evidence should be preferred. In my view, those contentions are indicative of the husband’s limited insight as to the impact of those events upon the wife.
It was also submitted on behalf of the husband that the wife’s evidence was exaggerated and at times “blatantly false”. In support of that submission the husband relied upon the wife’s evidence that she attended the building site at 1-3 Y Street, Suburb D on “an almost daily basis”[1] as compared with the evidence of Mr F, the building consultant and site foreman, who deposed that the wife “was rarely seen visiting the sites”.[2] It was submitted that Mr F was a credible witness who “has got no agenda”.
[1] Wife’s Trial Affidavit filed 12 December 2014, paragraph 14.
[2] Affidavit of Mr F filed 2 February 2015, paragraph 5.
In his Trial Affidavit filed 30 January 2015 the husband deposed that he undertook the development of the Y Street project “with virtually no assistance or input from the wife”.[3] The only concession made by him as to the wife’s attendances at the site was that she “occasionally assisted in collecting an extra bag of cement or the like on the rare occasions she visited the site”.[4]
[3] Husband’s Trial Affidavit filed 30 January 2015, paragraph 26.
[4] Husband’s Trial Affidavit filed 30 January 2015, paragraph 42.14.
Mr F is an employee of the husband who has worked on the husband’s various property developments over many years. He has a close working relationship with the husband and also has a fiduciary relationship with him. As a result, I am satisfied that his loyalty to his employer has likely influenced his evidence. During cross-examination, Mr F conceded that the wife may have attended the building sites during periods when he was not present. Further, notwithstanding the matters contained in his Affidavit, during his evidence in chief Mr F conceded that the wife attended the Y Street site every two to three weeks. It was clear from his oral evidence that the wife was well known to him; she was a friend whom he considered to be a “great person”.
The wife’s friend Ms K was also cross-examined with respect to the extent of the wife’s involvement at the building site. It was her evidence that the wife was fully involved in the building projects, collecting items, delivering invoices and acting as the husband’s gopher. Indeed during her evidence she stated that she also attended the site with the wife on one or two occasions. I accept that evidence.
Having regard to the evidence of the wife and Mr F, I am satisfied that the wife has likely overstated the time spent by her at the building site. Equally, I am satisfied that the evidence of the husband and Mr F that the wife attended the sites “rarely” is exaggerated; it was conceded by Mr F during his oral evidence that the wife had attended the sites on a regular basis. It was also evident that Mr F considers himself to have a warm and friendly relationship with the wife; had her visits to the building sites been limited to rare occasions it is unlikely that he would have such a relationship with the wife of his employer.
Accordingly, I do not accept the submission made on behalf of the husband that the wife’s evidence is “blatantly false”. I am satisfied that both the husband and the wife have each sought to present their case in the best possible light and in doing so, have at times overstated, exaggerated or embellished the extent of their respective roles.
I observed that when giving her evidence the wife was, at times, emotional, argumentative and uncontained; at times this adversely impacted her ability to answer questions. It was clear from the manner in which she gave her evidence that the wife harbours strong negative feelings towards the husband. Nonetheless, the wife was able to make appropriate concessions, particularly with respect to the husband’s contributions as a parent, she conceding that the husband was “better than other fathers” with respect to his assistance with the day to day care of the children.
In contrast, I observed the husband to be controlled and contained when giving his evidence.
The husband openly displayed antipathy towards the wife, staring at her whilst giving his evidence and denigrating her contributions at almost every opportunity. Indeed at one point in his evidence the husband sought to compare and contrast his life now with his current partner to the life he apparently endured with the wife over the 43 years of their marriage. The explanation proffered by the husband’s counsel with respect to that evidence was that the husband was not denigrating the wife; rather the husband’s “arteries are quite hardened emotionally” as a result of what he says was a difficult marriage. I have no doubt that at times the marriage was difficult for both the husband and the wife; nonetheless, the wife, unlike the husband, retained a capacity to make concessions as to her former partner’s contributions to that marriage.

The Law

The parties’ competing property applications are to be determined in accordance with the provisions of Part VIII of the Act. The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108. At page 121 the High Court said that “[t]he power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’”. Section 79(2) of the Act provides that a court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so.
That decision has been considered in detail by the Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) and more recently in Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592.
In Bevan at [73] the Full Court referred to the three “fundamental propositions” laid down by the High Court which should guide trial judges in approaching the task under s 79. They were summarised as follows:-
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(original emphasis)
Accordingly, in determining competing applications pursuant to s 79, the Court is required to:-
·Identify the parties’ respective legal and equitable interests in property;
·Determine whether, in accordance with s 79(2), it is just and equitable to make a property settlement order having regard to the parties’ existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in s 79(4)(a) to (c) inclusive; and
·Consider the matters contained in s 79(4)(d) to (g) inclusive and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2).

The Act does not prescribe the order in which the matters in s 79(4) are to be considered. The circumstances of individual marriages as to their nature and form differ; how parties have organised and lived within the marriage are factors which may be relevant in the exercise of the discretion pursuant to s 79(2) of the Act.
The Court’s approach may be less compartmentalised than was previously the case and a more “holistic” approach, as described by Murphy J in Watson & Ling [2013] FamCA 57 at [13], adopted.
As previously stated, it was conceded by counsel for each of the parties that an order is necessary in this case. Both the husband and the wife ask the Court to make orders adjusting the parties’ property interests. There was no challenge to the proposition that it is just and equitable to make orders for property settlement. Accordingly, in circumstances where it is agreed that the parties will no longer have the joint use and enjoyment of their property, I am satisfied that it is just and equitable to make orders for an adjustment of their interests.

Background

At the time of their marriage, the husband held properties at 1 Z Street, Suburb W and C Street, Suburb H. Both properties were subject to mortgages.
The wife had no assets of significance at the time of the marriage.
The parties, through the corporate entities in which they held interests purchased and developed a number of properties during the course of the marriage.
In 1971 the parties commenced operation of N Pty Ltd. The husband and the wife were appointed directors of N Pty Ltd and each held one share in that company. The wife resigned as a director and transferred her share in N Pty Ltd to the husband following the making of the 1997 orders.[5]
[5] Exhibit W3.
N Pty Ltd was originally established to hold the parties’ property interests and separate them from the husband’s professional practice. It was the registered proprietor of the former matrimonial home in Suburb U. N Pty Ltd is the registered proprietor of the properties at 4-5 Y Street and M Street Suburb D.
In 1976 the husband commenced operation of XXX Nominees Pty Ltd (“XXX”). XXX is the trustee for the XXX Investment Trust.
The wife was appointed a director of XXX in 1978 and held that position until the 1997 orders. The husband and the wife each held one share in XXX until 1997. The husband has been the sole director and shareholder of XXX since 1997.[6]
[6] Exhibit W4.
XXX was established as a vehicle through which the parties could conduct their property developments.
In 1987 J Pty Ltd, an entity established by the husband’s mother, Mrs S, advanced the sum of $422,506 to XXX. That sum was applied by XXX towards the redevelopment of property held by it at 1-3 Y Street, Suburb D. That property was redeveloped by the parties, through XXX over the ensuing years.
The husband confirmed during cross-examination that the money advanced by J Pty Ltd to XXX was not the subject of a loan agreement nor recorded in the company accounts. The advance was never repaid and no interest payments were made to J Pty Ltd in respect of the advance. The husband was appointed a director of J Pty Ltd in 1990. He was also a shareholder in J Pty Ltd. The husband confirmed that by the time of his mother’s death in 1995 the advance by J Pty Ltd to XXX had been “given up” and was not referred to in his mother’s will. The husband also confirmed that at the time of his mother’s death he was one of the two directors and shareholders in J Pty Ltd. I am satisfied that the advance of those funds by J Pty Ltd to XXX represents a significant contribution on behalf of the husband, albeit a contribution made some 29 years ago.
At the time of his mother’s death J Pty Ltd was the registered proprietor of units in B Street, Suburb H and CC Street, Suburb H. The husband’s sister was appointed as a director of J Pty Ltd following his mother’s death. By agreement with his sister, the husband retained the units at CC Street and his sister retained the B Street units.
There was a substantial renovation of the eight apartments at CC Street in 2004 and they were sold between 2005 and 2006.
In 1988 the husband was appointed as a director of L Pty Ltd. The husband’s mother was the other director of L Pty Ltd. The husband and his mother were the shareholders of L Pty Ltd. The husband currently holds the 12 issued shares in L Pty Ltd and is its sole director.[7]
[7] Exhibit W5.
L Pty Ltd is the trustee of the Pilch-S Family Trust. The appointor of the trust is Mr G, the solicitor for the husband’s late mother. During cross-examination, the husband conceded that since his mother’s death that solicitor acts upon the husband’s instructions.
The husband confirmed that L Pty Ltd held the property at 6 Y Street, Suburb D in 1988. Following the death of the husband’s mother the husband redeveloped the property, subdividing it into two residential units with a ground floor shop. The two residential units were sold in 2006 and 2013 respectively.
The husband’s mother died in 1995. Her will, dated 22 February 1995 provides that the husband inherit the following assets from his mother’s estate:-
·Shares in Q Pty Ltd, valued at $77,169;[8]
·The property at 10 Z Street, Suburb W. That property was sold by the husband in December 1995 for $375,000.
[8] Husband’s Affidavit filed 22 September 2015, Annexure IPP3.
In addition, the will provides that a loan advanced to the husband by his mother in the sum of $90,000 was forgiven.
During cross-examination the husband confirmed that he received no payment in respect of the shares in Q Pty Ltd; rather the family had received benefits from that company between the time of the child AP’s birth in 1972 and his mother’s death in 1995.
Further the husband confirmed during cross-examination that the loan forgiven related to moneys advanced to the parties in 1981 to assist them with the renovation of the former matrimonial home. The husband conceded that the moneys had been advanced by his mother to benefit his family. He also confirmed that there was no loan agreement, that there had been no repayment of the loan, nor had there been any request by his mother for repayment or interest on the loan since the moneys were advanced.
As to the moneys received from the sale of 10 Z Street, the husband conceded that the net sale proceeds, being approximately $365,000 were invested by him in a variety of livestock, and that he lost money on each of those investments.
In late 1996 the parties sold the former matrimonial home at Suburb U. Shortly thereafter the wife was admitted to the A Clinic for treatment; as previously referred to, she was a patient at that clinic for a period of approximately four weeks.
Final property orders were made in May 1997. Following the making of the 1997 orders the wife resigned as a director and relinquished her interest in XXX and N Pty Ltd. The husband transferred to the wife his interest in AAA Nominees Pty Ltd (“AAA Nominees”) and the AAA Investment Trust which held five flats in P Street, Suburb UU and three carparks. Further, the wife was paid the sum of $229,000 from the proceeds of sale of the former matrimonial home. The husband retained the balance of the sale proceeds and his interests in XXX and N Pty Ltd.
The husband had resigned from offices held by him in J Pty Ltd in October 1996. In June 1997, following the making of the final orders he was re-appointed as a director of J Pty Ltd.[9]
[9] Exhibit W6.
The husband purchased the property at TT Street, Suburb H in 1997. The wife and the husband resumed cohabitation in mid-1997 at TT Street; the parties’ children BP and CP, who were then aged approximately 23 and 19 years, lived with them at that property. The wife’s evidence was that she believed TT Street to be a rental property, only learning that it was held by the husband after the commencement of these proceedings.
The wife’s mother died in 2000 and the wife inherited the sum of approximately $500,000 from her mother’s estate. Approximately $290,000 of that inheritance was applied by her towards the purchase of a holiday apartment at OO Resort. The balance of the inheritance was invested by her and was subsequently lost during the global financial crisis.
In 2007 the husband purchased the property at X Street, Melbourne for the sum of $1.83 million. The wife advanced to him the sum of approximately $125,000 from the sale of one of the P Street flats to assist him with the renovation of that property.
The parties’ final separation occurred in April 2012 when the husband changed the locks on X Street and informed the wife of that fact by text message.
In March 2013 the wife filed an Initiating Application in which she sought orders pursuant to s 79A of the Act that the final property orders made in 1997 be set aside and that there be an alteration of the parties’ property interests. The husband filed a Response to Initiating Application in which he sought that the wife’s application be dismissed.
The matter was placed in my docket in July 2014. Ultimately, it was conceded by the husband that having regard to the history of the parties’ relationship, it was just and equitable that property orders be made. He conceded that the orders made by the Court in 1997, although fully implemented, should be set aside. Accordingly, the trial proceeded on that basis.

The Asset Pool

The balance sheet tendered by the wife (Exhibit W2) which identifies the agreed pool of assets notes the parties interests as follows:-

ASSETS	Ownership	Agreed Value
Real Property
[X Street], Melbourne	Husband	$1,600,000
[1-3 Y Street] and [M Street, Suburb D]	[N Pty Ltd] ([Mr P] Family Trust)	$3,000,000
[1 P Street, Suburb UU]	Wife	$300,000
[2 P Street, Suburb UU]	Wife	$300,000
[MM] St, [Suburb YY]	Wife	$425,000
Storage facility – [MM St]	Wife	$5,000
Total Real Property	$5,630,000
Bank Accounts
ANZ Online Saver (as per Husband’s FS 22/09/2015)	Husband	$4,620
CBA Netbank Saver	Husband	$301,923
ANZ (as per Husband’s FS)	Husband ([XXX])	$3,537
ANZ ANZ Super 7000	Husband ([N Pty Ltd])	$22
ANZ V2 Plus (Wife’s FS 12/10/2015)	Wife	$1,801
ANZ	Wife	$298
Macquarie Cash Management Account	Wife	$10,991
Total Bank Accounts	$323,192
Superannuation
Superannuation – Macquarie	Wife	$59,938
Superannuation (excluding art)	Husband	$823,000
Total Superannuation	$882,938
Artwork & Chattels
NB – values are agreed, the disagreement is in ownership of a small portion. Average given	Husband says $275,875 Wife says $282,210	$279,042
Motor Vehicles
Honda vehicle	Wife	$10,000
Mazda vehicle	Husband	$12,500
Total Motor Vehicles	$22,500
TOTAL ASSETS	E$7,137,672
LIABILITIES	Ownership	Agreed Valuation
Commonwealth Bank Loan	Wife	$18,343
[EE]Accountant	Wife Husband	$2,000 E$5,000
Owner’s Corporation Fees	Wife	$5,000
Income Tax unpaid	Wife	$25,958
Husband’s outstanding accounts for maintenance	E$5,000
Mortgage/Overdraft – [Y Street] – ANZ	Husband	$800,000
Liability via [L] Pty Ltd (CBA) re balance of [Y Street] borrowings	Husband	$200,000
Total Liabilities	E$1,061,301
NET ASSETS	E$6,076,371

Husband’s Initial Contributions

As noted above, at the commencement of the marriage the husband had interests in the properties at:-
·Z Street, Suburb W, which was subject to a mortgage; and
·C Street, Suburb H, which was subject to a mortgage.
The property at C Street was sold by the husband in 1972, approximately two years after the parties’ marriage, for the sum of $21,000. It was subject to a mortgage at the time of its sale. There is no evidence before the Court as to the value of the property at the time of the parties’ marriage or as to the net proceeds received by them upon its sale.
The property at Z Street was purchased by the husband for $18,000 and was subject to a mortgage of approximately $15,000 to $16,000. It was sold by the parties in 1973. Again, there is no evidence before me as to the property’s value at the time of the marriage or the net proceeds received upon its sale.
It is submitted on behalf of the husband that notwithstanding the fact that those properties were sold more than 40 years ago and that the net proceeds of sale were modest, there should be an adjustment in favour of the husband as a result of those contributions. It was submitted that the fact of those contributions was relevant as the sale proceeds became the “seed capital” for the subsequent purchase of properties by the parties.
It was conceded by the husband’s counsel that there is no direct lineal progression with respect to the application of the proceeds of sale from the two properties and the interests held by the parties today.
The initial contributions made by the husband are acknowledged by the wife. However it is submitted on her behalf that they are but one category of contribution over the course of a very long marriage and of themselves are not contributions which would justify a further adjustment to the husband.
In the decision of Bremner & Bremner (1995) FLC 92-560 the Full Court considered the approach to be adopted with respect to such contributions. The Full Court at [17] cited with approval the approach of Fogarty J in Money & Money (1994) FLC 92-485 where his Honour stated at page 81,054 that:-
[A]n initial substantial contribution by one party may be eroded to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party.
In the context of a 43 year marriage, weighing up the contributions of the husband and wife, many and varied, both direct and indirect, financial and non-financial, including in their capacities as homemaker and parent, I am not persuaded that there should be any further adjustment to the husband as a result of the contributions made by him at the commencement of the marriage.

Husband’s Inheritance

It was submitted on behalf of the husband that the inheritance received by him was “the epicentre of his case” insofar as an assessment of his direct financial contributions was concerned. At paragraph 8 of his Affidavit filed 25 September 2015, the husband summarised the financial benefits he alleges were received by him from his mother’s estate and from his sister during the marriage as follows:-
(a)[L] Pty Ltd   $   929,540
(b)[J] Pty Ltd
·Sale of residential units  $2,465,292
·Net Rental Income  $   392,237
·Management Fees  $    52,600
·Management Renovations      $    16,800
·Loan [XXX]  $   422,826
Sub total                  $3,349,755
(c)From my mother’s Estate   $   631,962
(d)Financial benefit from my sister  $   853,923
TOTAL  $5,765,180
Whilst the wife acknowledged that there were substantial direct contributions made on behalf of the husband by virtue of inheritance and advances from his mother, she did not admit the values alleged with respect to that contribution by the husband or concede the weight sought by him to be attributed to those contributions.
The husband was cross-examined extensively as to the extent of his inheritance and the value he attributes to it. Although the husband deposed in his Affidavits that he had inherited his interests in the properties at 6 Y Street (held by L Pty Ltd) and CC Street (held by J Pty Ltd), the reality is that he was a director and shareholder in the entities which owned those properties well prior to his mother’s death. Therefore it could not be said that he had inherited those assets.
Further, the husband seeks to attribute value to the assets either advanced to him or inherited by him on the basis of their realisation value, rather than their value at the time of receipt, thus ignoring the efforts of the parties during the marriage to improve and enhance the value of those assets.
The husband asserts that the sum of $929,540 is the value of his inheritance of L Pty Ltd, which held the property at 6 Y Street, Suburb D. However, L Pty Ltd is a company of which the husband was director and shareholder with his mother since 1988; the husband asserts that he took control of that company as part of his inheritance under his mother’s Will.[10] The Will of the husband’s mother is silent with respect to L Pty Ltd and it is not included in the inventory of assets. Having regard to that history, I am satisfied that the husband’s interest in L Pty Ltd was not inherited by him, but rather one held by him since 1988, some seven years prior to his mother’s death.
[10] Husband’s Affidavit filed 22 September 2015, paragraph 9.
It is common ground between the parties that there was a significant redevelopment of the property at 6 Y Street in 2004/2005, almost 10 years after the death of the husband’s mother. The husband’s evidence was that the property at 6 Y Street was purchased by L Pty Ltd in 1994. At the time of his mother’s death it was a single-level shop. The redevelopment of that property included a full excavation of the site, the construction of two, two-storey residential units and the strata sub-division of the site. Those sub-divided units were sold between 2005 and 2015.
The husband deposes that the capital gain received by him in respect of the sale of the redeveloped site was $735,871. In addition, he gives evidence as to the net rental received by him between 1995 and 2013 from those properties. He alleges that the total received by him from sale of the properties and rents received is $929,540 and he seeks to claim that amount as the benefit received from his mother’s estate.[11] That contention ignores the contributions made by the parties to the development and improvement in value of that property which resulted in the capital gain.
[11] Husband’s Affidavit filed 25 September 2015, paragraph 7.
The husband was cross-examined as to the development of 6 Y Street. He confirmed during cross-examination that he was a director and shareholder of L Pty Ltd prior to his mother’s death but asserted that his mother had complete control of that entity. The husband conceded that his Trial Affidavit was incorrect insofar as he deposed that he received his interest in L Pty Ltd upon his mother’s death in accordance with her Will.
The husband confirmed during cross-examination that there was much work and effort expended in the redevelopment of the property at 6 Y Street. It was his evidence that the property had been purchased by L Pty Ltd for the sum of $250,000. At the time of its acquisition, the husband was a director and shareholder in L Pty Ltd. It was sold as three separate sites between 2005 and 2015 for a total of $1,515,000.
There is no evidence as to the value of the husband’s interest in L Pty Ltd at the time of his mother’s death.
The husband’s evidence was that he undertook the design work and oversaw the renovation of the site.
The husband was cross-examined as to the cost of the redevelopment of the Y Street site. He did not know the cost of the redevelopment and conceded that he had no idea what amounts were expended on the site.
Having regard to the husband’s evidence as to the significant redevelopment of the property at 6 Y Street after his mother’s death which resulted in its expansion from a single-storey shop-front to a shop and two residential units, I do not accept the husband’s contention that the amount alleged as the “financial benefit” from L Pty Ltd can be attributed as a contribution made on his behalf from his mother. Rather, it is my view that the amount received upon the sale of the property is attributable not only to the contribution of the un-renovated property but also to the significant works undertaken by the parties in the period following the husband’s mother’s death and prior to its sale.

The husband also asserts that the sum of $3,349,755, being the proceeds of sale of the properties at CC Street, Suburb H together with rents received on that property, management fees and a loan from XXX should be included in the financial benefits received by him from his mother’s estate.[12] The husband’s assertion that his interest in CC Street was inherited from his mother’s estate ignores the fact that he was a director and shareholder of J Pty Ltd, the entity which held the property, at the time of his mother’s death. Again, his mother’s Will is silent as to the assets in J Pty Ltd; they did not form part of her estate.
[12] Husband’s Affidavit filed 22 September 2015, paragraph 19; Husband’s Affidavit filed 25 September 2015, paragraph 8.
The husband was extensively cross-examined as to the redevelopment of the units at CCStreet. The renovation of the CC Street units occurred between 2004 and 2006, again almost 10 years after the husband’s mother’s death. The husband’s evidence was that profits from developments undertaken by him during the marriage were applied to the renovations at CC Street.
Mr F was also cross-examined as to the nature and extent of the renovations to CC Street. Neither the husband nor Mr F could provide the Court with an estimate as to the costs of the renovations of CC Street. However, Mr F confirmed that it was a major redevelopment of the site. His evidence was that the property was “gutted” and redeveloped. He confirmed that the block of apartments was transformed and that the renovation would have cost a lot of money. Indeed, Mr F confirmed that his work on the site “[didn’t] come cheap”. I accept that evidence.
There is no evidence before me as to the value of CC Street at the time of its acquisition by J Pty Ltd or at the time of the husband’s mother’s death. However, the evidence of both the husband and Mr F confirms that substantial improvements were effected to that site in 2004 and 2005. It was conceded by the husband that the cost of those renovations was borne by the husband or his entities.
Hence, having regard to that evidence, in my view the husband cannot claim the sale proceeds of the redeveloped site as being wholly attributable to a gift or inheritance from his mother’s estate.
The husband has also sought to claim as contributions made on his behalf by his sister the management fees paid to him during the period of the renovation of the B Street properties retained by his sister. Those fees total $16,800. He also seeks credit for the management fees received by him for the management of the apartments at B Street. Those fees totalled $52,600. I do not consider the payment to the husband of those amounts to be contributions made on his behalf by his sister. It was income earned by him for work and services provided to his sister during the course of the marriage. In my view there is no basis for his claim that those sums should be included in the benefits otherwise received by him from his mother or sister or through his mother’s estate.
As noted above, the husband inherited the property at 10 Z Street, Suburb W from his mother’s estate. That property was sold by the husband in December 1995. The net proceeds of sale being the sum of approximately $365,000 were invested by him in his livestock interests and subsequently lost. The husband seeks to obtain credit for the full amount received by him upon the sale of the property, ignoring his subsequent loss of those amounts.
Likewise, the husband seeks credit for monies advanced to the parties by his mother and J Pty Ltd in the early years of the marriage to enable them to renovate their home in Suburb U and to develop the property held by XXX at 1-3 Y Street. As noted earlier, the contribution of funds to XXX, although significant, is one made 29 years ago and must be considered against the backdrop of all of the contributions made by each of the parties throughout the relationship.
My impression of the husband is that he has adopted a pedantic and mathematical approach to the calculation of the benefits received by him from his family.
The assessment of the parties’ contributions is not a mathematical exercise. This was confirmed by the Full Court in Garrett & Garrett (1984) FLC 91-539 at page 79,372 where it said:-
The wide and indefinite terms of para. (a) themselves suggest that where appropriate, and certainly in a case like the present, a broad estimate of the financial contribution of each party must be made. Under sec. 79(4)(b) non-financial contribution of each is to be taken into account. This must of necessity be a matter of judgment and not of computation. Similar indications can be found amongst the relevant matters in sec. 75(2). It is also worth noting that para. (a) and (b) refer to the “contribution” and not to the contributions of each party.
In this case it has been possible to determine with some degree of accuracy what the parties brought into the marriage and what they received during cohabitation from their respective families. However, the long term significance of these contributions is not determined as a mathematical exercise. They enhanced the life style of the parties and their children who all benefited from them.
In Norbis v Norbis (1986) 161 CLR 513, Mason and Deane JJ referred to the decision of Nygh J In the Marriage of G and G (1984) FLC 91-582. Their Honours stated at pages 522-523 that:-
… Nygh J. expressed his agreement with the proposition “that it cannot be required of the Family Court that it assesses contributions with mathematical precision with respect to each item”…
…
In this respect we agree with the comment of Nygh J. … that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party’s contribution to them.
(citations omitted)
In Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060 Finn J stated at [49] that-:
As to the specific complaint that his Honour's reasons do not reveal how he arrived at the figure of $750,000, it has to be said, that it is not generally possible in the exercise of the discretion under s.79 to say or to ascertain why a particular award is ultimately arrived at. Given that awards under s.79 are virtually never calculated with mathematical precision, no amount of enumeration of, or indeed of evaluation of, contributions, or of the s.75(2) matters, or indeed of any of the matters listed in s.79(4), can ever explain exactly why a particular figure, or more usually a percentage, is eventually arrived at (other than that it is within the recognised “range”). Absent a strict mathematical approach, the reasons for judgment requirement ultimately becomes impossible of total fulfilment in the jurisdiction under s.79.
(emphasis added)
The Full Court more recently confirmed that approach in Clives & Clives [2008] FamCAFC 172; (2008) FLC 93-385. Warnick, Boland and Cronin JJ stated at [44] that:-
We accept that the task to be undertaken by a trial Judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise…
I have carefully evaluated all of the evidence as to the contributions made by or on behalf of the parties. However, I have not done so with a rigid and specific mathematical approach as agitated by the husband.
There is no evidence before me as to the value of the properties at 6 Y Street or CC Street at the times of their acquisition by the husband or his entities. The husband has seemingly ignored the growth in value of the properties as a result of their redevelopment, renovation and enhancement by the parties or their entities during the marriage in the years following his mother’s death. He has also failed to take into account the fact that the redevelopment of those properties was funded by the husband or entities controlled by him during the marriage. Moreover, the husband ignores the direct or indirect contributions made by the wife during those periods, which I will address in more detail below.
At times the husband exhibited surprising lapses in his memory; that he could not recall significant aspects with respect to the property developments was of particular concern. For example, he could not assist the Court with evidence as to the amounts expended by him or his entities in respect of the redevelopments of 6 Y Street or CC Street. He produced no evidence as to the value of those properties at the time of their acquisition or at the time of his mother’s death. As to the costs of the developments and profits received upon sale, the husband repeatedly stated that those questions should be put to his accountant. The husband maintained that position notwithstanding the fact that his accountant, Mr V, who gave evidence in the proceedings, was not the accountant who acted for the husband at the time the developments were undertaken and did not have the source material to enable him to answer those questions. In light of that approach by the husband, I am satisfied that at times he was selective in his recall of events in order to maximise the weight to be given to those contributions.
My impression of the husband was that he was cautious to avoid close scrutiny of the redevelopments of those properties as to do so may lead the Court to the conclusion that the wife in one form or another has made contribution to those properties. That approach did not serve him well.
There can be no doubt that the husband should receive credit for the introduction of the properties at 6 Y Street and CC Street into the marriage. Those properties were acquired through entities held by the husband and his mother; the parties acquired an interest in them by virtue of the husband’s appointment as a director and shareholder in the entities. Indeed, the CC Street property was acquired by the husband’s mother well prior to the parties’ marriage.
However, the evidence of the husband and Mr F confirms that those properties were significantly enhanced and developed during the marriage and the parties profited from their efforts in that redevelopment.
Cronin J helpfully reviewed a number of cases which considered the treatment of inheritances in the decision of Sinclair & Sinclair [2012] FamCA 388. That review highlights the wide discretion invested in the Court in determining what is just and equitable in such cases. Those cases also highlight the importance of not fettering the judicial discretion.
I have regard to those authorities in assessing the husband’s contributions in this case. However, each case must be determined on its own unique set of facts.
I am satisfied that the fact of the contributions by or on behalf of the husband of those properties and the advance of funds to XXX is a matter which necessitates recognition in the overall assessment of the parties’ respective contributions. However, it must be recognised that those advances were contributions made more than 20 years ago, and substantial redevelopment and improvement was effected to the subject properties after their acquisition by the husband or his entities and prior to their realisation. Those improvements were funded by the parties or their entities. In my view the contributions made by the parties during the marriage to the improvement of the subject properties cannot be ignored when assessing contributions.

Husband’s Conduct During The Marriage

The wife submits that her contributions to the marriage were made more difficult by reason of the husband’s conduct towards her. She asserts that she has been subjected to family violence during the course of the marriage and that there should be an adjustment in her favour in accordance with the principles enunciated in Kennon v Kennon (1997) FLC 92-757 (“Kennon’s case”).
Family violence is defined at s 4AB of the Act. Pursuant to that definition family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour are set out at s 4AB(2) of the Act.
The behaviour of the husband which is alleged to constitute family violence towards the wife is set out at paragraphs 76 to 90 inclusive of her Trial Affidavit filed 12 December 2014.
The wife alleges that the husband was financially controlling of her. The wife alleges that the husband hid her housekeeping money in the wall library at the family home necessitating her to undertake a search for such money or to have to beg the husband to tell her where money was hidden.
Although denying that allegation in his Trial Affidavit,[13] during cross-examination the husband admitted that he did place the housekeeping money in books in the wall library. During his oral evidence the husband conceded that if she required money, the wife would have to ring him and discuss such request; if he agreed to the wife’s request, he would inform her where the money was hidden. Having regard to that evidence, I am satisfied that the husband was controlling of the family finances, as alleged by the wife.
[13] Husband’s Trial Affidavit filed 30 January 2015, paragraph 42.76.
The wife also alleges that she was subject to verbal abuse by the husband, calling her names, such as “idiot” and “cretin”.[14] The husband admits that there were occasions when he called her names.[15]
[14] Wife’s Trial Affidavit filed 12 December 2014, paragraph 78.
[15] Husband’s Trial Affidavit filed 30 January 2015, paragraph 42.77.
Further, the wife alleges that the husband regularly belittled her, including in front of other people. The husband denied that allegation in his Trial Affidavit.[16] Nonetheless, during cross-examination the husband stated that he would correct the wife’s comments, regardless of who was there; he stated that “if she talked about facts of which she knew very little, if in fact nothing, and this could lead to a situation that could provide problems for us as a family [he] clarified the issue”.
[16] Husband’s Trial Affidavit filed 30 January 2015, paragraph 42.89.
The wife’s friends, Ms E, Ms O and Ms K each swore Affidavits and were cross examined during the proceedings. The evidence of Ms E was that she observed the husband “talking down” to the wife. She deposes at paragraph 3 of her Affidavit filed 16 December 2014 that the manner in which the husband spoke to the wife was unpleasant, particularly his tone and the way he constantly “put her down without letting her talk” during a visit by the parties to her in the United Kingdom. Ms E confirmed those observations during cross-examination.
It was submitted on behalf of the husband that little weight could be attributed to that evidence given the close and long-standing friendship between Ms E and the wife. That Ms E shares such relationship with the wife is clear; it was conceded by her during cross-examination. However in my view that relationship does not undermine or in any way diminish her evidence with respect to her observations of the husband’s conduct towards the wife. I accept that evidence, particularly having regard to the manner in which the husband described the wife’s contributions during the course of his cross-examination (to which I will refer in more detail later in this judgment) and his own concession as to how he would reproach the wife in front of others. The evidence of Ms E was consistent with my own observations of the way in which the husband speaks of the wife and her contributions to the parties’ relationship.
Ms E’s evidence was also consistent with that of the witness Ms K. At paragraph 6 of her Affidavit filed 22 December 2014 Ms K deposes to an occasion where she visited the parties at their home in Melbourne and how the husband informed her as to “how useless [the wife] was”. That evidence was confirmed by her during cross-examination.
I accept the evidence of the wife, Ms E and Ms K that the husband verbally abused and belittled the wife during the marriage.
During an argument in 2000, the wife alleges the husband threw her wardrobe of clothes into the garden at the former matrimonial home.[17] The husband’s evidence was that he threw the wife’s clothes on the floor. Whether the clothes were thrown into the garden or on the floor, I am satisfied that in so doing the husband displayed anger and aggression towards the wife.
[17] Wife’s Trial Affidavit filed 12 December 2014, paragraph 80.
In 2004 the husband placed a log of wood down the centre of the parties’ matrimonial bed due to arguments between them as to the space occupied by the husband in the bed. The husband admitted that conduct in cross-examination. When the log was removed from the bed, the husband placed it on the floor of the bedroom. The wife’s counsel submitted that this was another example of the husband’s controlling behaviour, the log being a subtle reminder to the wife of what would occur were she to misbehave. I accept that submission.
On 25 December 2005 during an argument the wife alleges the husband physically assaulted her, pushing her and grabbing her wrists.[18] As a result the police were called to the home and the wife obtained an interim intervention order against the husband. The wife subsequently withdrew her application for an intervention order upon an undertaking given by the husband. The husband denies assaulting the wife but admits that he pushed her away.[19]
[18] Wife’s Trial Affidavit filed 12 December 2014, paragraph 86.
[19] Husband’s Trial Affidavit filed 30 January 2015, paragraph 42.86.
The wife was cross-examined in relation to this incident. She conceded during her evidence that she attempted to film her exchange with the husband, her intention being to show him his behaviour later; she agreed that her actions inflamed the husband and that she should not have tried to film him or retrieve her camera from him. Counsel for the husband put to the wife that she had fallen over deliberately when pushed. The wife denied that allegation stating that she does not fall over deliberately. I accept the wife’s evidence in relation to that incident.
As noted above, I am satisfied that the husband sought to control the wife during the marriage. That control ranged from requiring her to justify expenditure before informing her as to the whereabouts of housekeeping money, to verbally abusing her and belittling her in the presence of others.
I am also satisfied that the wife was subjected to a physical assault in December 2005; that this is so is admitted by the husband albeit that it is his position that he was provoked by the wife. To her credit, the wife acknowledges the role she played on that occasion and concedes that her actions likely inflamed the situation.
The evidence of Ms E and Ms K is that as a result of the husband’s behaviour they observed the wife was fearful of him. There were occasions when the wife fled the former matrimonial home and stayed with Ms K at her home in rural Victoria. I accept that evidence.
It was submitted on behalf of the wife that the husband’s evidence as to his conduct in hiding money in books and placing a log of wood in the middle of the matrimonial bed were powerful examples of the controlling and coercive conduct endured by the wife during the parties’ 43-year marriage. Further, it was submitted that the husband’s behaviour during the course of the proceedings and the manner in which he gave his evidence was indicative of the vindictiveness and spite displayed by the husband towards the wife; it was submitted that the fact that the husband indicated no remorse nor regret at his behaviour and proffered no apology for such conduct highlights the attitude of the husband towards the wife both now and during the course of their long marriage. It was submitted that based upon that conduct the wife’s claim that there should be an adjustment has been made out, it being submitted that her contributions were made more difficult than they ought to have been.

The issue is whether the wife’s contributions have been affected by that conduct.
It is submitted on behalf of the husband that notwithstanding the admissions as to his conduct in the face of the wife’s allegations, such conduct does not found a basis for a further adjustment to the wife as she has not established that that conduct made her contributions more difficult. It is submitted on behalf of the husband that in circumstances where the wife does not assert that his conduct caused her to suffer incapacity to undertake her contributions in accordance with s 79(4) of the Act nor that his conduct made it difficult for her to contribute, there should be no adjustment to her with respect to that conduct. It was also submitted that the husband’s behaviour alleged by the wife is not shown to have had a discernible impact upon the wife’s ability to contribute to the marriage.
The wife was cross-examined as to the extent of her contributions and the impact of the husband’s behaviour on those contributions. The wife conceded that she performed her role as a mother freely and without inhibition; it was submitted on behalf of the husband that that evidence indicates that the wife’s contributions were not made more difficult as a result of the husband’s conduct.
The husband also relies upon the wife’s concession that he did not inhibit the performance by her of her domestic chores nor did he prevent her from completing those chores; based on that evidence he submits that there is no link between his behaviour and the performance of her role being more difficult.
Further, it was put to the wife that the husband’s budgeting to ensure that the children of the marriage were educated at a private school was controlling behaviour, but in a “good way”. The wife’s response to that proposition was a concession that the husband was very good with his budgeting for payment of the school fees. Again, the husband relied upon that concession in support of his submission that the wife does not establish a basis for an adjustment relying on Kennon’s case.
In support of those submissions counsel for the husband relied upon the majority judgment of Fogarty and Lindenmayer JJ in Kennon’s case at page 84,294 where they stated:-
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage or put the other way to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account when assessing the parties’ respective contributions within s 79.
Further, at page 84,295 the majority continued:-
To be relevant it would be necessary to show that the conduct that occurred during the course of the marriage had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage …
Since the majority judgment in Kennon’s case the Act has been amended so as to provide specific definitions for family violence as set out above. Society and the law have changed in the 19 years since Kennon’s case was decided. Now more than ever, there is a greater understanding within the community as to the damaging impact of controlling behaviour, verbal and physical abuse within relationships.
In assessing the wife’s claim, I must have regard to all of the evidence; that is the period over which the alleged conduct is said to have occurred, the nature of that conduct and the impact of that conduct upon the wife. The question should then be asked, having regard to that evidence, as to whether the wife’s contributions were made more arduous as a result of that conduct. It is not for the wife to assert that this is so. Rather, it is the assessment of the trial judge having regard to the evidence.
There is no evidence before me as to the impact of the husband’s conduct upon the wife. The Full Court considered in the decision of S & S [2003] FamCA 905 whether a trial judge may infer from the evidence, once a course of violent conduct is established, that a party’s contributions have been affected. The issue was identified at [45] of the judgment where the Full Court agreed with the trial judge’s summary of the law in relation to Kennon’s case that:-
13.If one looks at that passage, it seems to me that the key words are that the violence is demonstrated to have ‘a significant adverse impact’ on the parties’ contributions, or made them ‘significantly’ more arduous.
…
18.It seems to me that that question of interpretation of the judgment in Kennon is of great importance in resolving this matter. As has been apparent, I have found it a difficult one. It seems to me that the question of whether the evidence in this case is admissible or not, is one of some difficulty. It is partly one of difficulty because the wife’s material, although it refers to some specific acts of violence, does not expressly refer to the impact of the violence on her contributions. It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person’s contributions. The question in the present case is whether the material on behalf of the wife can be aid to fall within that category.
At [47] the Full Court held as follows:-
An insufficiency of evidence … leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:-
·The incidence of domestic violence;
·The effect of domestic violence; and
·Evidence to enable the Court to quantify the effect of that violence upon the party’s capacity to “contribute” as defined by section 79(4).
I am satisfied that the husband has acted in a controlling and coercive manner during the marriage; that at times he has demeaned the wife by his words and actions. Further I am satisfied that the wife was physically assaulted by the husband on one occasion. However, there is no established evidentiary link between that conduct and the assertion that the wife’s contributions were made more difficult as a result; indeed when pressed, the wife readily conceded that she performed her roles within the marriage freely and without inhibition. In my view, the absence of evidence as to the effect of the husband’s conduct upon the wife limits the Court’s ability to make an adjustment in her favour in accordance with the principles enunciated in Kennon’s case. Accordingly, in my view that part of the wife’s application must fail.

Alleged Failure To Account For Moneys By The Wife

It is submitted on behalf of the husband that the wife has failed to make full and frank disclosure as to savings accounts held by her. Further, the husband alleges that a close analysis of monies received by the wife in the period July 2011 to June 2014 discloses that she does not account for approximately $612,000 received by her during that period. In addition, it is alleged that the wife failed to disclose how she applied the sum of $85,000 withdrawn by her from an ANZ cash management account in November 2014. Reliance is placed upon Exhibit H11 in support of that submission.
The husband also relies upon Exhibit H6 which is an aide memoire prepared on his behalf which sets out monies received and spent by the wife during the period July 2011 to June 2014. That document lists the monies received by the wife during the stated period from her superannuation pension entitlements, rents received, proceeds of sale of properties, payments received pursuant to Court orders, insurance claims and the like.
It is contended that during the period alleged the wife received cash in the sum of $2,253,848. The wife was cross-examined in relation to monies received by her during that period. During the course of her evidence she admitted that she had received the amounts alleged in that period.
Exhibit H6 also provides a summary of cash expenditure for the wife during the same period. It notes rental deductions, selling costs, the acquisition of the MM Street property, loan repayments and rental expenses and legal costs. The total of amounts identified as having been expended by the wife is $1,641,255. On that basis, it is asserted that the wife has not accounted for the difference between the cash received and monies expended as identified in Exhibit H6. The amount unaccounted for is alleged to be $612,593.
Again the wife was cross-examined as to the expenses identified in the document and conceded the amounts alleged to have been expended by her. When cross-examined the wife was unable to explain or to account for the whole of the $612,593.
The difficulty with the submission made on behalf of the husband is that it makes no allowance for the wife’s other living expenses during the three-year period identified. For example, there is no allowance for food, payment of utilities, motor vehicle expenses, holiday expenses and the like.
The wife in her Amended Financial Statement filed 15 October 2015 deposes that her total weekly personal expenditure is $1,037 per week. She was not challenged in respect of those expenses. Hence her disclosed weekly living expenses total approximately $54,000 per annum. Calculating that amount over the three-year period, I accept that the wife has likely expended at least $162,000 in respect of such expenses.
The husband in his Financial Statement filed 22 September 2015 discloses weekly expenses of $1,520 per week, which is approximately $79,000 per annum. Hence, based on those figures the husband likely expended $237,000 on such expenses over the same period.
The wife’s evidence was that she purchased a car during the relevant period and that she had significant medical expenses during that period.
Again, the husband adopted a precise and mathematical approach in assessing the wife’s expenditure; he sought that the wife account for every dollar she has received over the three year period. In the context of a 43-year marriage, in my view this was a time consuming and unhelpful approach to the proceedings.
It is evident from the material that throughout the marriage the parties enjoyed a comfortable standard of living. They travelled overseas regularly including trips to Europe, Asia, cruises, and travel to South America. They enjoyed collecting works of art.
The evidence of the husband indicates that he has maintained that standard of living in the aftermath of the breakdown of the marriage. He was cross-examined as to his own post-separation expenditure. He confirmed that in 2015 he had travelled with his partner on a tour in Europe for a four to five week period; he was unable to state the cost of that holiday. The husband confirmed that he had been living off capital. When asked as to his own personal expenditure in 2013 he confirmed that he had no idea as to the amounts expended by him.
The husband was also cross-examined as to his disclosure in his Financial Statement filed 3 May 2013. He confirmed that he had a personal credit card that was not disclosed in that document. He also conceded that that document did not disclose bank accounts or investments. The husband also confirmed that the assets held or controlled by him at that time were valued at approximately $7.835 million, whilst his interests disclosed in his Financial Statement filed 22 September 2015 are valued at approximately $5.3 million. The husband admitted that he had used a $200,000 facility in L Pty Ltd to support his lifestyle and that he had maintained his standard of living by drawing on capital, notwithstanding the diminution in the value of assets. Otherwise, his explanation for the decline in the value of his assets was attributable to the sale of the Y Street property at an amount less than anticipated.
The evidence of both parties with respect to their expenditure and lifestyle in the post-separation period was unimpressive. Neither the wife nor the husband was able to provide particulars as to their expenditure. Both parties had omitted relevant financial information from their sworn Financial Statements filed at the commencement of the proceedings.
In all of the circumstances, I am satisfied that it is unreasonable for the husband to expect the wife to account for every dollar received by her during the three-year period; the husband demonstrated a similar inability to account for his expenditure. However, unlike the husband the wife did not seek to apply a strict mathematical approach requiring that he account for each and every dollar spent.
I am satisfied that it is reasonable for the wife to have expended sums on her day to day living expenses, her medical expenses, holidays, the purchase of a motor vehicle and the like as did the husband during the relevant period. This is particularly so in circumstances where the wife received no maintenance from the husband during the relevant period. Accordingly, I do not accept the submission made on behalf of the husband that the moneys unaccounted for should be treated as moneys retained by the wife to be taken into account as part of her property settlement.

Alleged Non-Disclosure by the Wife

The husband is also critical of the wife for failing to disclose the existence of accounts held by her with ANZ Bank and National Australia Bank. In her first Financial Statement she failed to disclose three accounts held by her, being ANZ V2 account number …54 which as at 12 December 2014 had a balance of approximately $2,207, National Australia Bank account number …99 which as at 28 November 2014 had a balance of approximately $7,767, and ANZ Cash Management account which as at 20 November 2014 had a balance of approximately $51,344.
The wife was cross-examined as to her failure to disclose those accounts in her Financial Statements filed 12 March 2013 and 12 December 2014. The wife could proffer no explanation as to why those accounts were not disclosed in her Financial Statements. She denied that she had deliberately omitted the accounts from her Financial Statements. The wife acknowledged that the Financial Statements were incorrect. Having regard to that evidence I accept the submission made by the husband that the wife failed to disclose those accounts in her earlier Financial Statements.
The wife disclosed the existence of those accounts prior to the commencement of the hearing. That she failed to disclose those documents at an earlier time is unfortunate. It is likely that her failure to disclose those accounts at an early stage in the proceedings has created an air of suspicion and distrust by the husband and has influenced his attitude towards the wife and shaped his view as to her entitlements in the case.
I was urged by the husband’s counsel to adopt a robust approach in assessing the wife’s entitlements in accordance with the principles enunciated in Gould & Gould [2007] FamCA 609; (2007) FLC 93-333, having regard to the wife’s “non-discovery of relevant financial information”. In circumstances where the wife disclosed the relevant accounts, albeit late in the day, I do not accept that such approach is warranted in this case. As noted earlier, there were errors and omissions in the Financial Statements filed on behalf of both the husband and the wife in 2013. By the time the hearing had commenced, disclosure was complete and indeed, the husband was in possession of the wife’s documents and able to compile a Court Book (Exhibit H11) with respect to the matters about which he complained.

Sale of OO Resort

The husband also complains of the sale by the wife of the unit at OO Resort which he alleges was sold at a discounted price. The wife denies that allegation. That property was purchased by the wife in 2003 for the sum of $290,000. She sold the OO Resort property in 2014 for the sum of $160,000 to her friend, Mr GG. The wife was cross-examined in relation to that transaction. It was her evidence that the property was listed for sale with an agent for a period of seven months. The property had been valued by a property valuer at $185,000. It was put to the wife that another property in the same block of apartments sold for $195,000. The wife stated during cross-examination that she was aware of that sale and that she had questioned her appointed selling agent about that sale given that she had been unable to effect a sale of her unit. The wife stated that she felt pressure to sell the property as she was then drawing upon her superannuation to support herself. She denied that she sold the property at a discounted price; it was her evidence that Mr GG offered to purchase the property on the basis that he match the highest offer received by her.
In the absence of any expert evidence as to the value of the property at the time of sale, I am not in a position to make any finding as to whether or not the wife has sold the property at a discounted price. It is clear, however, based on her evidence that the property had significantly reduced in value from the price at which she purchased it in 2003.
The husband has suffered a similar reduction in value of the property at X Street, which was purchased by him for $1.83 million. That property was renovated by the parties subsequent to the purchase. Notwithstanding the purchase price and the renovation of the property, that property is now valued at $1.6 million. That there has been a reduction in value of that investment is not a matter for criticism by the wife of the husband.

Chattels

At paragraph 3 of the orders sought by the wife she seeks that the husband make available to her 12 items. By the conclusion of the trial the following items remained in dispute:-
·Candlesticks;
·Crystal ornament;
·Murano glass;
·Canadian sculpture;
·Indigenous pottery;
·Two brilliant-cut diamonds;
·The wife’s photographs and albums.
The wife was cross-examined with respect to the chattels sought by her. Her evidence in relation to the candlesticks was that they were her Godmother’s 1950s silver-plated candlesticks. The husband was also cross-examined with respect to the candlesticks. The husband acknowledged in his evidence that the candlesticks represented an important part of the Jewish household. The husband’s view with respect to them was that that aspect of his life ceased upon the death of his own mother. This again was indicative of his attitude and antipathy towards the wife who of course is the mother of the parties’ children.
The husband also conceded that it was the usual practice for the candlesticks to pass down the maternal line. Notwithstanding his acknowledgement of the practice of passing the candlesticks down the maternal line the husband maintained his opposition to the wife having those candlesticks.
Having regard to the husband’s evidence as to the usual cultural practice with respect to the candlesticks and the wife’s own evidence that they were items from her Godmother, I am satisfied that an order should be made that she retain those items.
The trial reached its nadir with the husband’s trenchant opposition to the collection of family photographs being made available to the wife for copying. That was a suggestion made by me to the husband’s counsel during his closing submissions when it became apparent that the husband was maintaining his opposition to providing those photographs to the wife for that purpose. The submission made by the husband’s counsel, upon his client’s instruction, was that the only photographs to be made available to the wife were photographs personal to her. When that proposition was explored with the husband’s counsel it became apparent that the limitation sought to be imposed by the husband was that the wife must be a subject of the photograph in order for it to be made available. The effect of that position was that any photographs of the children or photographs taken during family holidays in which the wife was not a subject would not be made available. Further, the husband’s counsel indicated that the husband would remove himself from any photo in which he was a subject. In circumstances where the parties have shared almost half a lifetime together, I found the husband’s attitude towards the photographs disturbing.

The wife deposes in her Trial Affidavit to the many holidays enjoyed by the parties during the course of the marriage. The parties have a shared history of raising three children together. In my view the appropriate course is that all of the family photographs should be made available to the wife for copying and returned to the husband. Further, I am satisfied that it is appropriate that the husband pay one half of the costs of the copying of the photographs.
As to the other chattels the subject of dispute, in circumstances where each party maintains their entitlement to them and asserts that the purchase of those items was instigated by them, I propose to order that the items be sold and that the sale proceeds be divided in accordance with my assessment as to the parties’ percentage entitlements. In circumstances where I am unable to make determinations as to the parties’ entitlements to the individual items, in my view that is the only approach open to me. It was an approach I indicated would likely be adopted in the event the parties were unable to agree as to the division of those chattels.

Works of Art

The parties also disputed ownership of their collection of artworks. That art has been valued at between $275,875 (as asserted by the husband) and $282,210 (as asserted by the wife). For the purposes of the preparation of the joint balance sheet (Exhibit W2) the artwork has an agreed value of $279,042.
The history of the art collection is addressed in the wife’s Trial Affidavit filed 12 December 2014 at paragraph 69. There she deposes that the parties undertook a trip in 2001. She deposes that they then commenced building a collection of artworks for investment and enjoyment. Whilst some of the artwork was acquired by their self-managed superannuation funds, the wife deposes that other pieces were hung in their home at TT Street, Suburb H. The wife deposes that the artwork was selected together. The husband retains all of the artwork collected during the marriage.
The husband’s response to the wife’s allegations is set out at paragraph 42.69 of his Trial Affidavit filed 30 January 2015. He there deposes as follows:-
As to paragraph 69, I agree, save that the artworks were purchased by me, not the Wife and I together. All artworks were paid for through by legal entities owned by me, except for 3 artworks which were purchased equally with the Wife’s superannuation fund. On the 2001 trip, the Wife and I travelled ….
It would appear that the husband concedes that the artworks were purchased during the marriage when the parties travelled. The point in issue, from the husband’s perspective, is that he asserts that he paid for the artworks and that they were not purchased by the wife and him together. Seemingly, it is his view that as a result of the fact that the monies were sourced from accounts controlled by him or his entities that he therefore has a greater entitlement to them.
It was submitted on behalf of the husband that I should have regard to the fact that he has a legal interest in the artwork and that the principles enunciated in Stanfordv Stanford (supra) should apply.
In circumstances where it is common ground between the parties that the artwork was acquired more than 10 years prior to separation at a time when the parties were holidaying together and had a shared life, in my view justice and equity requires that there be a division of the artworks. Given that the husband worked throughout the 43-year marriage and the wife was a homemaker, it would be surprising were he not to fund the acquisition of the artwork. In my view the fact that the payments were made by him does not inevitably lead to the conclusion that he should retain the totality of the art collection. Having regard to the above matters, I find that the husband has no greater entitlement to the retention of the artwork than the wife.
The order sought by the wife is that the artwork be divided in specie between the parties. There was no evidence led before me as to how such division should be effected. In circumstances where there is no proposal put as to an appropriate division in specie, I am left with little alternative than to order a sale and division of the proceeds in the same proportion as the property division. Again, this was an approach that I foreshadowed during the course of the closing arguments.

Section 79(4) Contributions

The parties have shared half a lifetime together and raised three children. Theirs was a traditional relationship; the husband assumed the role of breadwinner and the wife was responsible for the upkeep of the home and the care of the parties’ children.
The wife’s case is that she contributed to the best of her abilities in her role as a homemaker and parent and in support of the husband’s business.
In her Trial Affidavit filed 12 December 2014 at paragraph 7 the wife deposes as to her contribution during the early years of the marriage, assisting the husband in administrative tasks for his professional practice.
The parties’ eldest child was born in 1972, some two-and-a-half years after the parties’ marriage. Thereafter the wife was principally responsible for the care of the children.
The wife deposes in her Trial Affidavit as to the various contributions made by her to the husband’s property developments. For example with respect to the property at 1-3 Y Street, Suburb D, the wife deposes at paragraph 13 that she researched heritage colours for the development and sourced a specialist painter. She deposes that the parties undertook some of the painting themselves. Further, the wife deposes at paragraph 14 that she attended the building site on an almost daily basis to assist with errands, including collecting materials for the site.
With respect to the property at CC Street, the wife deposes at paragraph 59 that she set up a display flat, chose fixtures and fittings and colour schemes for the flats and cleared the gardens. She deposes at paragraph 61 that she undertook site inspections, landscaping works, typed specifications and attended to other administrative duties such as answering emails, making phone calls and the like.
The husband challenges the nature and extent of the wife’s contributions both in the period prior to the 1997 orders as well as in the period after those orders were made. In his Trial Affidavit filed 30 January 2015 the husband deposes that the wife had “minimal involvement” with the projects undertaken by him prior to 1997.[20] Further, the husband deposes that the wife was not actively involved in his projects after 1997. He maintains that her duties to assist him in his practice prior to the birth of the parties’ first child were “limited” and notes that the wife “unsuccessfully” ran a shop for a short period. The husband complains that the wife refused his request to undertake paid employment to assist with the parties’ living expenses.[21]
[20] Husband’s Trial Affidavit filed 30 January 2015, paragraph 8.
[21] Husband’s Trial Affidavit filed 30 January 2015, paragraph 9.
The husband deposes at paragraph 25 of his Trial Affidavit filed 30 January 2015 that by 1997 the parties each performed household duties although he notes that he “undertook the vast majority”.
As to his projects commenced after 1997, it is the husband’s position that those projects were undertaken with “virtually no assistance or input from the wife”.[22]
[22] Husband’s Trial Affidavit filed 30 January 2015, paragraph 26.
The husband expanded upon his views as to the wife’s contributions (or lack thereof) during cross-examination. As to her involvement in the care of the children, the husband reluctantly conceded that she was involved in the children’s care although he sought to reinforce his status as a hands-on father when present. The wife, in contrast, readily conceded that the husband’s contributions as a parent were greater than most fathers of his generation.
As to her contributions as a homemaker the husband’s view was that she could have applied herself in a stronger and more positive fashion to her household duties. That evidence is telling as to the husband’s attitude towards the wife. It was my impression that he would avail himself of every opportunity to criticise or denigrate the wife’s contributions to the marriage. That he was unable to make concessions as to the wife’s role as a homemaker and parent is indicative of that approach.
Given the manner in which the parties structured their lives with the husband working fulltime and the wife as a fulltime homemaker and parent, I am satisfied that the wife did contribute in that sphere to the best of her abilities. The evidence of both parties supports the view that the husband was dedicated to the various property developments undertaken by him during the course of the marriage. He worked long hours on those projects. Of necessity, the wife was primarily responsible for the management of the parties’ busy household, attending to the needs of the husband and the parties’ three sons.
The husband relied upon the evidence of Mr F in support of his position that the wife had exaggerated her contributions to the various building projects over the course of the marriage. As I have observed earlier in this judgment, Mr F conceded that the wife did attend the building sites regularly. Further, it was clear that Mr F had a warm and friendly relationship with the wife. I am satisfied that it is unlikely that he would share such a relationship with the wife were her visits to the building sites rare events.
As I have observed earlier in the judgment it is my view that both the husband and the wife have likely exaggerated their positions with respect to the wife’s contributions. I am satisfied that the wife did make contributions to the husband’s work both prior to and after the 1997 orders. Undoubtedly the bulk of the work with respect to those developments was performed by the husband; that was his accepted role within the parties’ marriage. I accept his evidence and that of Mr F that the husband was intimately involved in every aspect of those developments from design to construction and even labouring from time-to-time.
Equally, I accept that the wife was a supportive and interested wife. I accept that there were occasions where she ran errands for the husband, delivering items to the sites, and assisting the husband with the selection of fittings.
The wife also maintains that she made contributions to the husband’s developments in her role as an office-holder in his entities until 1997 and that since that time she has supported the husband in the development projects.
In 2006 the wife executed documents to enable one of the P Street flats held by AAA Nominees to be used as security for the acquisition of the development site at M Street, Suburb D.
When living at the property in TT Street, Suburb H, it is common ground that the wife landscaped the yard. Further, the wife assisted with the design of a new kitchen at that premises. Such contribution is indicative of a shared life and a unity of purpose. Whilst the husband concedes that the wife designed the garden and assisted with the design of the kitchen, he relies upon the fact that tradespeople were engaged and paid for by him as evidence which supports his contention that the wife made only limited contributions. I do not accept that contention. In my view the parties had separate and differing roles during the course of their long marriage and each contributed to the best of their abilities in their respective spheres.
The husband’s evidence is that in the period prior to 1997 he hid money in the wall library at their home requiring the wife to discuss with him expenditure before providing money to her. In the period post-1997 he relies upon the fact that he paid for renovations and other expenses as support for his contention that the wife’s contributions were limited. That arrangement is really indicative of the position of these parties throughout the marriage; that is that the husband controlled the parties’ finances and met the bulk of their expenses. The difference between the pre- and post-1997 period is that during the latter period, as a result of the transfer of some of the parties’ assets to her, the wife had a greater degree of financial independence. She had an income which meant she was not entirely dependent upon the husband’s will as to whether or not funds would be made available to her.
In December 2007 the husband purchased the property at X Street. The wife sold one of the flats held by AAA Nominees in Suburb UU to provide funds for the renovation of the X Street property. After the flat was sold the husband commenced paying to the wife quarterly amounts of $2,000. The husband asserts that those payments represent interest on monies loaned by the wife to assist with the renovation. The wife denies that there was a loan agreement or that the quarterly payments were interest on the loan. I accept the wife’s evidence with respect to the renovation of X Street. At that time the parties were living as husband and wife. They continued to enjoy holidays together and otherwise share all aspects of their lives.
In my view had such a loan agreement been in existence, it is likely it would have been reduced to writing. Previously, when the parties have entered into arrangements with respect to their assets, the husband has engaged lawyers to act on his behalf to prepare necessary documentation. This was the positon adopted by him in 1997 when the orders were made.
The behaviour of the parties at the time of the acquisition of the X Street property in my view is inconsistent with the parties having entered into a loan agreement.
Having regard to the parties’ evidence with respect to contributions, I am satisfied that each party has contributed to the best of their ability in their respective roles.
As noted earlier, the husband has made substantial direct financial contributions to the parties’ assets by way of advances received from his mother as well as the inheritance received from his mother’s estate. Those contributions in my view are deserving of recognition.
There is no evidence before me as to the value of the properties at 6 Y Street, and CC Street at the time they were acquired by the husband or entities controlled by him. As a result I am unable to make findings as to the value of those properties at the time of their acquisition. Nonetheless, I accept that the acquisition of those properties provided the parties with a significant spring-board to develop the pool of assets available to them today.
However, it must also be recognised that those properties when realised by the parties were significantly different to those originally transferred to them; the parties together made substantial contributions to the redevelopment of those properties which was reflected in their sale prices. Accordingly, the contributions of the parties to the redevelopment of those properties must also be recognised.
The husband has been staunch in his criticism of the wife’s contributions both in his Trial Affidavit and during cross-examination. In my view the husband’s manner and approach to the wife’s contributions was vindictive and his complaints as to her contributions were petty. Having regard to the totality of the evidence, particularly the evidence of Mr F, Ms E and Ms K, the reality is that each of the parties contributed individually and jointly to the acquisition and improvement of their assets.
Further, I am satisfied that both parties contributed to the best of their abilities to the welfare of their family as parents and homemakers. Having regard to the extent of the contributions made by each of the parties over such a long period of time, I am satisfied that a global approach to the adjustment of their property pool is appropriate. That approach will ensure that the parties’ varying contributions may be assessed and recognised.
It was submitted on behalf of the husband that the appropriate adjustment, having regard to his contributions, is that he make a payment to the wife of $500,000, representing an approximate 75 per cent adjustment to the husband and 25 per cent to the wife. The wife’s positon was that she should retain the X Street property and the assets held by her, representing a 44 per cent adjustment in her favour.
Whilst I am satisfied that the contributions made by the husband require recognition, in my view that adjustment cannot be at the level sought by him, particularly given that the assets claimed by him as having been received from his mother or her estate were assets received more than 20 years ago, and the form of those assets was vastly different to those ultimately realised by the parties.
I am satisfied having regard to the contributions made by each of the parties that an adjustment in the husband’s favour of 62.5 per cent is appropriate. An adjustment in those terms represents a 25 per cent adjustment in the husband’s favour which in dollar terms represents approximately $1.5 million (based on a pool of approximately $6 million). That adjustment recognises the contributions on behalf of the husband of the inheritance and the transfer to him or his entities of funds and the interests in the properties at Y Street and CC Street.

Section 75(2) Factors

The husband is aged 71 years. He has been self-employed for the majority of the parties’ relationship. He is now retired and draws income from his accumulated superannuation entitlements and property investments.
The wife is aged 67 years. She is reliant upon investment income and her superannuation for her support. The wife has not been in paid employment since the parties married in 1970.
Neither party is responsible for the support of another person.
The husband’s proposal was that the adjustment to the wife of 25 per cent includes a consideration of the matters relevant pursuant to s 75(2). It was submitted that there was no fact or matter pursuant to s 75(2) which would warrant a further adjustment in favour of either party, having regard to their age and stage of life.
It is common ground that neither the husband nor the wife will work in the future.
It was submitted on behalf of the husband that I should take into account pursuant to s 75(2)(o) the fact that the wife has been a spendthrift, having almost depleted her superannuation entitlements and having failed to account for an amount in excess of $600,000. Further in support of that submission reliance was placed upon what the husband asserts is the imprudent decision by her to sell the OO Resort property at a discounted price. I have dealt with each of those allegations earlier in this judgment. I do not accept the husband’s contentions that the wife has acted in a financially imprudent manner.
The wife’s positon with respect to s 75(2) factors was that the further away the contribution assessment is from an equal division the greater the adjustment should be to the wife with respect to s 75(2). That submission was put on the basis that not only does the husband have to care for himself in his retirement but also the wife must be supported as well. It was on that basis that it was submitted that an adjustment of 44 per cent in favour of the wife was appropriate taking into account both the contribution elements of the case as well as s 75(2).
The orders I make will provide that the husband continue to retain the property at X Street, it being a property valued at approximately $1.6 million.
By contrast, the wife currently resides in a studio apartment in Suburb YY. In my view, having regard to the standard of living enjoyed by these parties throughout the marriage, it is inappropriate that the wife be expected to continue to live in such modest accommodation.
The husband has a self-managed superannuation fund which has an agreed value of $823,000. The wife’s superannuation is valued at approximately $60,000.

Taking into account the disparity between the parties’ respective superannuation interests, I am satisfied that a modest adjustment of 2.5 percent in favour of the wife is appropriate. Based on a pool of $6,076,371, that adjustment is approximately $151,909.

Conclusion

Taking into account the matters pursuant to s 79(4) of the Act, I am satisfied that there should be a division of assets on the basis that the husband receives 60 per cent and the wife receives 40 per cent of the available pool.
It is agreed between the parties that the wife will retain her interest in the properties at P Street, Suburb UU and MM Street, Suburb YY. Further, the wife will retain the savings accounts in her name and her superannuation entitlements. The assets retained by the wife are valued at $1,061,727.
I have determined that the disputed collection of artworks should be sold and that the proceeds of sale divided in the proportions of the other parts of the property pool, that is, 60 per centum to the husband and 40 per centum to the wife.
Accordingly, I will deduct the value of that art from the pool of assets for division. After deduction of the value of the artwork (which is agreed as having a value of $279,042) the pool available for division is $5,797,329. Forty per cent of that pool is $2,318,931; after deduction of the value of the assets held by the wife, the husband is required to pay to her the sum of $1,257,204.
The husband will retain assets valued at $3,478,398. Hence, the disparity between the parties’ respective positions will be $1,159,467. In addition there will be the 60/40 division of the proceeds of sale of the art collection and chattels in favour of the husband. Having regard to the direct financial contributions made by or on behalf of the husband by his mother and her estate, I am satisfied that that adjustment in his favour is appropriate.
Throughout the trial the husband struggled to commit to a sale of any of his properties in order to facilitate a settlement to the wife. Seemingly, he could not contemplate a payment to the wife that might require a sale of one of his assets. His preferred position is that he will borrow funds to effect a payment to the wife. During closing submissions it was conceded on behalf of the husband that in the event that the husband did not make the payment by the due date the property at 4-5 Y Street, Suburb D should be sold. Accordingly, I will make an order in those terms.
Notwithstanding the desirability from the husbands’ perspective of delaying a payment to the wife until 2017, in my view such delay would be unjust in circumstances where currently the husband holds approximately 82 per cent of the parties’ assets. The wife should not be denied the fruits of this judgment. Accordingly, I will order that the husband make the payment to the wife within 60 days of this order and in default of payment that the Y Street property be sold forthwith.
In the circumstances of the case, having regard to all of the matters set out above, I consider the orders I make will be a just and equitable result as between the husband and the wife.

The Orders

The orders I will make subject to submissions as to form, in particular with respect to the sale of the artworks, are as follows:
1.That the orders made by consent in the Family Court of Australia at Melbourne on 29 May 1997 be set aside.
2.That within 60 days (“the Date”) the husband pay or cause to be paid to the wife the sum of $1,257,204 (“the Payment”).
3.That contemporaneously with the Payment the wife do all such acts and things and sign all such documents as may be required to withdraw the caveat lodged by her over the title to the property situate at and known as X Street, Melbourne in the State of Victoria.
4.That within 14 days the husband do all such acts and things as may be required to make available for collection by the wife:-
(a)Candlesticks;
(b)… painting;
(c)… charcoal;
(d)… vase;
(e)… bronze;
(f)Her collection of botanical books;
(g)The felting machine.
5.That within 14 days the husband do all such acts and things as may be required to make available to the wife for copying, all photographs and photograph albums collected during the parties’ marriage in his possession and he pay to the wife one half of all copying expenses within 7 days of receipt of an invoice for the same.
6.That within 30 days the husband and the wife do all such acts and things as may be required to effect a sale of the following chattels:-
(a)Crystal ornament;
(b)Murano glass;
(c)Canadian sculpture;
(d)Indigenous pottery;
(e)Two brilliant-cut diamonds;
(f)Collection of Indigenous art.
7.That the proceeds of the sale of the chattels pursuant to paragraph 6 hereof be applied as follows:-
(a)First, in payment of costs and commissions of the sale;
(b)The balance then remaining to be divided as follows:-
(ii)    Sixty per cent to the husband;
(iii)   Forty percent to the wife.
8.That in default of the Payment the husband in his capacity as director of N Pty Ltd do all such acts and things as may be required to effect a sale of the property situate at and known as 4-5 Y Street, Suburb D (“the sale”).
9.That the proceeds of the sale be applied as follows:-
(a)In payment of all expenses of and incidental to the sale, including estate agents’ commission, costs and any necessary disbursements;
(b)In payment of any outstanding rates and taxes and other outgoings;
(c)In discharge of any encumbrance registered against the title to the property;
(d)To the wife, the balance then outstanding in respect of the Payment together with interest thereon calculated in accordance with the rate prescribed by the Family Law Rules 2004 (Cth);
(e)The balance then remaining, if any, to the husband.
10.That there be liberty to apply with respect to the terms and conditions of the sale.
11.That the wife retain to the exclusion of the husband for her own use and benefit absolutely:-
(a)The property situate at and known as MM Street, Suburb YY in the State of Victoria together with the storage unit;
(b)The property situate at and known as 1 P Street, Suburb UU in the State of Victoria;
(c)The property situate at and known as 2 P Street, Suburb UU in the State of Victoria;
(d)Payments made to her pursuant to the orders of 4 March 2014 and 16 November 2015;
(e)Proceeds of any insurance claims made by her;
(f)Any choses-in-action relating to claims against her previous solicitors relating to the orders made on 29 May 1997;
(g)The Honda … motor vehicle registration number      …;
(h)Household chattels in her possession;
(i)Shares held by her in AAA Nominees Pty Ltd.
12.That the husband retain to the exclusion of the wife for his own use and benefit absolutely:-
(a)The property situate at and known as X Street, Melbourne in the State of Victoria;
(b)Shares held by him in N Pty Ltd, inclusive of the properties at 4-5 Y Street, Suburb D and M Street, Suburb D in the State of Victoria;
(c)Chattels and artworks in his possession or control subject to paragraphs 4 to 6 hereof;
(d)The Mazda … motor vehicle registration number …
13.That unless otherwise specified in these orders and save for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all property including choses-in-action in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other;
(d)All insurance policies are to become the sole property of the owner named thereon;
(e)Each party be liable for any debt in their name including credit card debts and indemnify the other against any personal guarantees given by them in their capacity as company director and any liability encumbering any item of property to which the party is entitled pursuant to these orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
14.That pursuant to r 19.50 of the Family Law Rules 2004 (Cth) this matter involved the reasonable and proper engagement of counsel.
15.That all extant applications be otherwise dismissed.
IT IS DIRECTED
That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 September 2016.

Associate:

Date: 2 September 2016.