Pinter & Pinter

[2021] FedCFamC2F 433

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Pinter & Pinter [2021] FedCFamC2F 433

File number(s):

LNC 869 of 2020

Judgment of:

JUDGE TURNBULL

Date of judgment:

25 November 2021

Catchwords:

FAMILY LAW – PROPERTY – 18-year marriage – parental gift to one party to the marriage – addback of legal fees – whether bound by partial property settlement agreement which is not an order or a financial agreement under pt VIIIAB – whether to exclude property purchased by the Husband post-separation.

Legislation:

Family Law Act 1975 (Cth), ss.79(1), 79(2), 79(4), 75(2)

Cases cited:

Beck & Beck (1983) FLC 91-318

C & C [1998] FamCA 143

Clauson & Clauson (1995) FLC 92-595

Dickons & Dickons [2012] FamCAFC 154

DW & GT [2005] FamCA 161

Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228

Fields & Smith [2015] FamCAFC 57

Foley & Foley [2019] FamCAFC 61

Gosper & Gosper  [1987] FamCA 43

Hayton & Bendle [2010] FamCA 592

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

Hsiao & Fazarri [2019] FamCAFC 37

Hsiao & Fazarri [2020] HCA 35

Jabour & Jabour [2019] FamCAFC 78

Lotta & Lotta [2017] FamCA 50

Mabb & Mabb [2020] FamCAFC 18

NHC & RCH [2004] FamCA 633

Stanford & Stanford [2012] HCA 52; 247 CLR 108

Woodcock & Woodcock [1997] FamCA 5

Division:

Division 2 Family Law

Number of paragraphs:

234

Date of last submissions:

25 October 2021

Date of hearing:

4 August 2021

Place:

Launceston

Counsel for the Applicant:

Mrs K Mooney SC

Solicitor for the Applicant:

McVeity Dean Lawyers

Counsel for the Respondent:

Ms A Trezise

Solicitor for the Respondent:

Andrea Trezise Barrister & Solicitor

ORDERS

LNC 869 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS PINTER

Applicant

AND:

MR PINTER

Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	25 NOVEMBER 2021

THE COURT ORDERS THAT:

1.Within 42 days of the date of this order:

(a)The Respondent Husband shall transfer to the Applicant Wife all his right, title and interest in:

(i)the former matrimonial home situate at B Street, Town C in Tasmania and comprised in Certificate of Title Volume … Folio … (‘the B Street, Town C house’);

(ii)the Applicant Wife’s Motor Vehicle 1, registration number … (‘the Motor Vehicle 1’); and

(iii)the parties’ joint F Pty Ltd offset account, account number …93 (‘the offset account’).

(b)The Respondent Husband shall pay to the Applicant Wife such sum representing a 50% share of rental income received by him since 15 September 2021 for the property at D Street, Suburb E in Tasmania and comprised in Certificate of Title Volume … Folio … (‘the D Street, Suburb E warehouse’) less a 50% share of reasonable expenses incurred for the said property from 15 September 2021, with the Respondent Husband to provide to the Applicant Wife a copy of bank statements evidencing the income received and receipts evidencing the expenses paid from 15 September to date of payment.

(c)The parties shall do all things reasonably necessary so as to close the joint F Pty Ltd account, account number …30 (‘the rent account’) and divide the balance of the funds held in that account and currently sitting at $85.41 equally.

2.Prior to the transfer pursuant to paragraph 1(a)(i) above, the Applicant Wife do all things necessary to effect the registration of a discharge of the parties’ existing mortgage to F Pty Ltd (mortgage number …);

3.Within 42 days of the date of this order the Applicant Wife shall transfer to the Respondent Husband all her right, title and interest in the D Street, Suburb E warehouse;

4.Prior to the transfer pursuant to paragraph 3 above, the Respondent Husband do all things necessary to effect the registration of a discharge of the parties’ existing mortgage to F Pty Ltd (mortgage number …);

5.Contemporaneously with the transfer of the D Street, Suburb E warehouse to the Respondent Husband pursuant to paragraph 3 above, the Respondent Husband shall pay the Applicant Wife the sum of $28,830.13;

6.Within 30 days of the date of this order, and on a date and time to be agreed between the parties, the Applicant Wife make available for collection by the Respondent Husband and/or his agent the following items from the B Street, Town C house:

(a)gym work bench including large press machine, weights and dumbbells;

(b)exercise bike;

(c)white shelves;

(d)books/novels;

(e)outdoor garden bench and stools;

(f)barbeque with granite bench/sink;

(g)tools chest and all tools in those tool chests, air compressor and hose;

(h)fire extinguisher;

(i)first aid kit;

(j)Victa lawnmower;

(k)DVD/CD towers;

(l)queen size wrought iron/timber bed frame and mattress;

(m)Samsung television;

(n)Toshiba television;

(o)timber bookshelf;

(p)timber rustic coffee table;

(q)black television stand;

(r)white glass top desk/table;

(s)cement mixer;

(t)signs;

(u)personal items/papers;

(v)prints;

(w)grey work locker;

(x)fridge;

(y)all dive equipment and tanks;

(z)firearms case;

(aa)small safe;

(bb)car jacks/stands;

(cc)moving trolley;

(dd)white shed cupboard;

(ee)wrought iron wine rack;

(ff)IXL turbo fan heater;

(gg)army gear;

(hh)single bed mattress;

(ii)desk chair;

(jj)iPad mini;

(kk)Dyson floor vacuum;

(ll)the old steel oven door from the Respondent Husband’s mother’s family home;

(mm)the blower vacuum which was a gift from the Respondent Husband’s father;

(nn)the remaining two (2) bottles of Penfolds Grange and remaining two (2) bottles of Shiraz;

(oo)the WWII bayonet to fit the .303 rifle;

(pp)one-half of the bucket of pennies gifted by the Respondent Husband’s father;

(qq)work memorabilia including the Respondent Husband’s Certificate, hats, helmets, badges from inside and under the house;

(rr)the Respondent Husband’s mother’s jewellery holder in the shape of a shoe;

(ss)the Respondent Husband’s certificates of education;

7.The Applicant Wife and Respondent Husband do all things reasonably necessary so as to sell the Motor Vehicle 2, and jet ski and jet ski trailer (either together or separately) and for the purposes of this order:

(a)the Motor Vehicle 2 is to be listed for sale with G Car Sales, Suburb H in New South Wales;

(b)the jet ski and jet ski trailer are to be listed for sale with J Motorcycles, Suburb K in Tasmania;

(c)the parties are to agree the manner of sale, listing price and sale price of each item to be sold and

(d)the parties have liberty to apply as to the mechanisms of sale in the event either of the Motor Vehicle 2 or jet ski and jet ski trailer remain unsold 9 months from the date of order;

8.The proceeds of sale of the Motor Vehicle 2, jet ski and jet ski trailer be applied as follows:

(a)to reimburse to the Applicant Wife the reasonable cost of purchasing a battery to be installed in the Motor Vehicle 2;

(b)to pay the reasonable fees and charges of the agreed agents appointed by the parties to sell the Motor Vehicle 2, jet ski and jet ski trailer; and

(c)the balance be disbursed between the Applicant Wife and the Respondent Husband in proportions of 62.5% to the Wife and 37.5% to the Husband;

9.Pursuant to s 90XT(4) of the Family Law Act 1975 (Cth), the base amount allocated to the Applicant Wife from the Respondent Husband’s interest in the Super Fund L (member number …) at the date if this order is $77,709.00;

10.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the Respondent Husband’s interest in Super Fund L superannuation fund (member number …) the Applicant Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using the base amount and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order;

11.The trustees of the said superannuation fund having been accorded procedural fairness, paragraphs 8 and 9 binds the said trustees and shall take effect from the operative time which shall be four business days after the day upon which the said trustees are served with a sealed copy of this order;

12.The Respondent Husband be and is hereby restrained from giving any instruction to the trustees of the said superannuation fund which would have the effect of reducing the Applicant Wife’s entitlement to payment of the adjusted base amount as a lump sum payment referred to in paragraphs 8 and 9 above, in so far as it does not place the trustee in breach of its governing regulations;

13.The Respondent Husband shall give the Applicant Wife not less than twenty-eight (28) days prior notice in writing of his intention to resign or retire and is to notify the Applicant Wife within seven (7) days of suffering a permanent or partial incapacity as defined by the trustee of the Respondent Husband’s superannuation fund and is to notify the Applicant Wife within seven (7) days of his election to accept an offer of redundancy or of any event which otherwise terminates the Respondent Husband’s employment;

14.Upon the Respondent Husband satisfying a ground upon which the trustee of the said superannuation fund will trigger a splittable payment, which includes but is not limited to the Respondent Husband resigning, retiring or being made redundant from employment, suffering a partial or permanent incapacity or being forced from the scheme when attaining 70 years of age, the Respondent Husband shall forthwith instruct the trustee to trigger a lump sum splittable payment sufficient to satisfy the adjusted base amount to be paid to the Applicant Wife pursuant to paragraph 8 above to the extent that such instruction does not place the trustee in breach of its governing regulations;

15.Subject to this order, the parties otherwise retain all property, real estate, bank accounts financial resources and liabilities in their names and/or possession, and for the purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker therein and service pensions are deemed to be the property of the person in receipt of the same;

16.The parties indemnify each other as to any outstanding liability encumbering any item of property to which that party is entitled pursuant to this order and in relation to any outstanding debts otherwise owed by them as at the date of this order; and

17.The parties undertake all things, do all acts and sign all relevant documentation to give effect to the terms of this order.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

Judge Turnbull

INTRODUCTION

1. Ms Pinter (‘the Wife’) and Mr Pinter (‘the Husband’) commenced cohabitation in 1998, and were married in Launceston in 2000.

2. The Wife, born in 1973, is currently 47 years of age. The Husband, born in 1974, is currently 46 years of age.

3. The parties have two children — X born in 2004 (‘X’), now 17, and Y born in 2010 (‘Y’), now 11.

4. On 25 March 2018 the parties separated, ending a marriage of over 18 years.

5. In February 2020, the parties reached a partial property settlement on the terms extracted at paragraph 31 of these Reasons (‘the partial settlement’).

6. On 10 August 2020 the parties attended private mediation with Mr M. This attendance at mediation was unsuccessful, as was further mediation on 4 May 2021, at resolving the property dispute.

7. The Wife instituted parenting and property proceedings on 23 November 2020.

8. On 16 July 2021 I made final parenting orders, by consent, to the effect that:

   ·the children live with the Wife;

   ·X spend time with his father (the Husband) as agreed; and that

   ·Y spend time with her father (the Husband) for five nights per fortnight and for one half of school holiday periods.

9. The property proceedings reached a final hearing on 4 August 2021, with submissions finalising on 25 October 2021.

   THE PARTIES’ PROPERTY AND BUSINESSES — A HISTORY

10. Prior to the parties commencing cohabitation in 1998, the Husband owned a property at N Street, Suburb E, Tasmania (‘the N Street, Suburb E house’). The Husband purchased the N Street, Suburb E house in 1995 for $87,000.00, for which he took out a loan of $80,000.00. In addition to acquiring real estate, the Husband also received some shares as a gift in 1995.

11. At the commencement of the relationship, the Wife lived in O Street, Suburb P, Tasmania (‘the O Street, Suburb P unit’). This unit was owned by her parents, and was transferred to the Wife’s sole name in 2009. The Wife also held some cash, superannuation, and a car when the parties’ relationship commenced.

12. Upon cohabitation commencing, the parties lived at the O Street, Suburb P unit. At this time, they substantially renovated the N Street, Suburb E house into which they moved in 1999.[1]

    [1] Affidavit of Ms Pinter, 19 July 2021, [7].

13. In 2002, they purchased a vacant block of land in B Street, Town C in Tasmania for $28,500.00, for which they took out a mortgage.

14. In 2003, the Husband established a business with a family friend known as Business Q. The Husband would later, in 2006, purchase his friend’s interest and rename the company to R Pty Ltd and commenced trading as ‘R’.

15. In 2004, they purchased a warehouse at D Street, Suburb E (‘the D Street, Suburb E warehouse’) as an investment property.

16. Also in 2004, the parties set up an online business named ‘Business S’ with another public servant and his wife. That business was set up only in the names of the Wife and the other public servant’s wife, and continued trading until 2010.[2]

    [2] Ibid [17].

17. Between late 2005 and early 2006, the parties established the T Unit Trading Trust. The associated business commenced trading, with the trustee being T Pty Ltd. That business was known in full as ‘T Pty Ltd, but was shortened to ‘T Pty Ltd’ by the parties and their other two T Pty Ltd business partners.

18. In 2006, the parties refinanced the N Street, Suburb E house.

19. In 2009, upon transfer to the Wife, the O Street, Suburb P unit was valued at $134,000.00. The parties paid the duty and fee on the transfer, being $3,457.00 and $131.00 respectively, from their joint savings. The parties then renovated that property.

20. Both parties were allocated F Pty Ltd shares in 2011, and added to their F Pty Ltd shareholdings in 2012.

21. In 2012, the Husband sold the N Street, Suburb E house. The parties applied the net sale proceeds, being $197,000.00, to constructing their family home at B Street, Town C (‘the B Street, Town C house’).

22. The parties further added to their individual shareholdings in 2014 by purchasing Company U shares.

23. In 2015, the Husband purchased a Motor Vehicle 2 for $22,500.00.

24. R Pty Ltd was wound up in 2018,[3] with the Husband continuing the ‘R’ business under a sole tradership.

    [3] Affidavit of Mr Pinter 19 July 2021, [19]-[20].

25. The parties held a joint offset account with F Pty Ltd which, by mid-2018, had accumulated $191,298.11. These monies were accumulated from the N Street, Suburb E house sale proceeds, as well as funds from the sale of various other assets.

26. In addition to the offset account, the parties also jointly held and received funds in a separate F Pty Ltd ‘rent account’. This account received the rental income from the N Street, Suburb E house and the O Street, Suburb P unit.

27. The Husband, on 25 July 2019, withdrew a total of $89,132.00 from the parties’ F Pty Ltd offset account.[4] This was done in three separate transactions of $83,632.00, $4,000.00, and $1,500.00, leaving a balance of $78,124.39. The Wife demanded that he return the amounts withdrawn.

    [4] Affidavit of Ms Pinter, 19 July 2021 (n 1), [30]; Affidavit of Mr Pinter, 19 July 2021 (n 3), [41].

28. The Husband redeposited the sum of $83,632.00 on 17 October 2019, but retained the sums of $4,000.00 and $1,500.00. In doing so, he considered he was squaring away debts between himself and the Wife. These debts were, in his view, for the $4,000.00 cash given by him to the Wife and for his half (being $1,500.00) of the ‘T Pty Ltd’ asset sale proceeds.[5] The Wife’s position was that the Husband retained the $4,000.00 as reimbursement for the earlier cash payment to her, and that the $1,500.00 retained by him was ‘what he thought he was owed from me’.[6]

    [5] Affidavit of Mr Pinter, 19 July 2021 (n 3), [41].

    [6] Affidavit of Ms Pinter, 19 July 2021 (n 1), [30].

29. The Wife sold the O Street, Suburb P unit on 14 October 2019, with net proceeds of $186,158.68. She placed the sale proceeds into a V Bank account, held in her sole name.

30. In January 2020, the Husband purchased a caravan for $23,000.00. This purchase was fully financed through a personal loan with W Bank.[7]

    [7] Affidavit of Mr Pinter, 19 July 2021 (n 3), [44]; Affidavit of Ms Pinter, 19 July 2021 (n 1), [42].

31. In February 2020, the parties agreed to the partial settlement. The Wife’s solicitor proposed, and the Husband through his solicitor accepted, the partial settlement in the following terms (emphasis added):

    “[The Wife] is prepared to provide to [the Husband] by payment direct to his conveyancer’s trust account $100,000.00 as a partial property settlement which she will pay from the sale proceeds of her unit, in order to not affect the lower interest rate attached to the mortgage that the offset account provides.

    When [the Husband] has located a property to purchase [the Wife] will transfer funds direct to the relevant trust account but will need at least a week’s notice, especially if the deposit is to clear in time for the settlement of the purchase.

    As a partial property settlement the payment [the Husband] receives is to remain in the pool at the quantum paid over, irrespective of what changes occur to that fund of money. Is that agreed?”[8]

    [8] Affidavit of Mr Pinter, 19 July 2021 (n 3), [47], annex B.

32. The Husband found a property on Z Street, Suburb AA, Tasmania (‘the Z Street, Suburb AA house’) that he wished to purchase. In June 2020, pursuant to the partial settlement, the Wife assisted his purchase of the Z Street, Suburb AA house by transferring $100,000.00 to the Husband’s conveyancers.

33. The Husband purchased the Z Street, Suburb AA house for $348,000.00 using the $100,000.00 partial settlement funds and by obtaining a loan of $254,530.00 from the Commonwealth Bank of Australia.

1. In the 12 months after purchasing it, the Husband renovated the Z Street, Suburb AA house.

2. June 2020 also saw the winding up of ‘T Pty Ltd’. The company’s Motor Vehicle 3 was transferred from the company to the Husband. The Wife and the Husband each received a share of the proceeds from the sale of company plant and equipment, with the Wife receiving the same less her income tax liability of over $10,000.00.[9]

   [9] Affidavit of Ms Pinter, 19 July 2021 (n 1), [43]; Affidavit of Mr Pinter, 19 July 2021 (n 3), [52].

3. On 19 October 2020 the Husband, for a second time, withdrew funds from the parties’ shared accounts without notice to or consent from the Wife. He withdrew $73,473.93 from the F Pty Ltd offset account and $2,192.43 from their F Pty Ltd rent account, each being approximately half of the balance of the account from which it was withdrawn.

   MATTERS AGREED

4. In the course of the proceedings, and indeed prior to their inception, the parties have to some extent limited the issues before the Court for final determination.

5. On 25 October 2021, following the trial, the matter was relisted for further submissions. At this time, Counsel provided a proposed order setting out the manner of asset distribution including an agreed superannuation split between the parties. It settles several aspects of the property dispute.

6. The proposed order provides that the B Street, Town C house be transferred to the Wife upon her discharge of the parties’ existing mortgage on that property, and that the Husband retain the D Street, Suburb E warehouse, subject to paying the Wife part of the rental income and discharging the parties’ mortgage for the same. It also provides that the Husband retain the Z Street, Suburb AA house, the Motor Vehicle 3, his shares, the ‘R’ business, his bank accounts, and his chattels as made available by the Wife under the order. The Wife will also retain certain items of property under the proposed order, being the Motor Vehicle 1 motor vehicle, her shares, bank accounts (including the F Pty Ltd offset account), her chattels, and her superannuation.

7. The proposed order also directs the parties to sell the jet ski and the Motor Vehicle 2, and divide the proceeds in accordance with this Court’s ultimate percentage determination pursuant to ss 79(4) and 75(2) of the Family Law Act 1975 (Cth) (‘the Act’). The proposed order also provides that the Wife receive a superannuation split of $77,709.00 from the Husband’s Super Fund L Superannuation Contributory Scheme superannuation fund.

8. The parties also appeared to agree that their furniture will be included in the property pool, despite their case outlines evidencing disagreement on this point.

   ISSUES FOR DETERMINATION

9. There are three preliminary issues with respect to the composition of the property pool.

10. In considering what order (if any) this Court will make under s 79 of the Act, I must apply the process identified by the High Court in Stanford & Stanford (2012) 247 CLR 108 (‘Stanford’). This Court must first identify:

    ‘according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.’[10]

    [10] Stanford & Stanford (2012) 247 CLR 108, 120 (French CJ, Hayne, Kiefel and Bell JJ).

11. Only after ascertaining the parties’ property and their interests therein can this Court, in its principled discretion under s 79, order that their existing interests should be adjusted by reference to their contributions and other factors under s 79(4)(d)-(g).[11]

    [11] Ibid 121.

12. The preliminary issues concerning the asset pool are:

    (1)whether, with respect to the Z Street, Suburb AA house:

    (a)the house be included in the property pool with its current value and liability; or

    (b)the partial settlement sum of $100,000.00 alone be included in the property pool, pursuant to the terms of the partial settlement as that sum was used to purchase the house;

    (2)whether the ‘R’ business should be included in the property pool; and

    (3)whether, with respect to the parties’ joint offset account:

    (a)the current balance of the account, and the remaining monies taken by the Husband which remains in his account, be included in the property pool; or

    (b)all existing monies either in or from the offset account be excluded from the property pool, with those monies to in effect be divided equally between the parties.

13. There is a further preliminary issue with respect to addbacks, being whether the parties’ legal fees, being $15,429.00 and $43,215.00 for the Wife and Husband respectively, should be added back to the property pool.

14. The key issues with respect to s 79 — namely the appropriate division of the net non-superannuation assets based on the parties’ contributions under s 79(4)(a)-(c) and adjustments under s 79(4)(d)-(g) — include:

    (1)how the parties’ offset and rental account withdrawals (except for those relating to legal fees) are to be regarded;

    (2)whether the Wife’s parents’ transfer of the O Street, Suburb P unit to the Wife in 2009 should be regarded as a contribution made by the Wife to the marriage; and

    (3)the impact, if any, of the Husband’s introduction of the N Street, Suburb E house to the marriage.

    DOCUMENTS RELIED UPON

15. The Wife relied upon the following documents:

    ·Application for Final Orders, filed 23 November 2020;

    ·Financial Statement of Ms Pinter, filed 19 July 2021;

    ·Affidavit of Ms Pinter, filed 19 July 2021;

    ·Affidavit of Mr BB, filed 19 July 2021;

    ·Affidavit of Mr CC, filed 20 July 2021;

    ·Affidavit of Mr DD, filed 20 July 2021;

    ·Affidavit of Mr EE, filed 28 July 2021;

    ·Tendered documents, being:

    ·Exhibit W1 – A payslip from the Husbands employer, Employer FF;

    ·Exhibit W2 – A statement from GG Real Estate dated November 2013 relating to O Street, Suburb P;

    ·Exhibit W3 – A statement from Super Fund HH showing the Wife’s contributions to superannuation from 2018-2021;

    ·Exhibit W4 – A statement showing the Wife’s paid legal fees of $6,938.00;

    ·Exhibit W5 – a F Pty Ltd statement for April showing various deductions from jointly held accounts; and

    ·Exhibit W6 – A letter from Super Fund L from July 2021 showing that they had no objection to proposed splitting orders observed at that time.

16. The Husband relied upon the following documents:

    ·Response to Application for Final Orders, filed 25 January 2021;

    ·Affidavit of Mr Pinter, filed 19 July 2021;

    ·Updated Financial Statement of Mr Pinter, filed 19 July 2021;

    ·Affidavit of Mr JJ, filed 19 July 2021;

    ·Amended Affidavit of Mr KK, filed 26 July 2021;

    ·Tendered documents, being:

    ·Exhibit H1 – a summary of assets and liabilities extracted from the Wife’s case outline, filed 29 July 2021, and as extracted in these reasons at paragraph 97; and

    ·Exhibit H2 – A statement showing legal fees of $41,958 paid by the Husband.

    EVIDENCE

    The Wife’s evidence

17. The Wife was cross-examined by Ms Trezise. She answered Ms Trezise’s questions directly, and did not significantly depart from her affidavit evidence.

18. The Wife was questioned about the partial settlement whereby, as extracted at paragraph 31 of these Reasons, she paid to the Husband the sum of $100,000.00 with that sum to ultimately be distributed as part of the property pool in these proceedings. The Husband invested that $100,000.00 into acquiring and renovating the Z Street, Suburb AA house, which has increased in value.

19. She said that the partial settlement was entered into on the clear condition that there would be no withdrawals from their joint offset account. In the Wife’s view, the Husband’s withdrawal of a further $73,473.93 from their offset account in October 2020 constituted a breach of the agreement reached in February 2020. On her understanding, this Court should not exclude from the property pool the asset acquired with the $100,000.00 because the Husband has breached that agreement.

20. Further on the offset account, the Wife conceded that she also withdrew funds from that account prior to the Husband doing the same. She maintained, however, that she withdrew those funds to pay joint debts. Those debts primarily concerned the B Street, Town C house, at which the Wife continues to reside. In her mind, she withdrew joint funds from the offset account to reduce joint debts, ultimately benefitting the Husband. The Wife further said on this point that she was also earning less than the Husband and had primary care of the children.

21. With respect to her legal fees, which the Husband seeks be added back, she conceded that she had paid $15,429.00, as of the date of hearing. This figure differs from that contained in Exhibit W4, being $6,938.00.

22. With respect to the substantive inquiry under s 79 of the Act, Ms Trezise asked the Wife about the O Street, Suburb P unit. The Wife maintained that the unit was transferred to her sole name in 2009 as a gift from her parents. She denied the Husband and herself obtained accountancy advice about registering the unit in their joint names. She did, however, accept that the rental income from the O Street, Suburb P unit was deposited into the parties’ joint rent account. Further, she conceded that the parties jointly met the transaction costs, including the duty on the transfer of property.

23. The Wife called her father, Mr BB, who confirmed in no uncertain terms that the O Street, Suburb P unit was only intended to benefit the Wife. He said that he wanted the Wife to have a property in her own name, and that he was unaware of the Husband undertaking work on the unit beyond perhaps trimming some trees with the Wife. He also denied that the parties discussed with an accountant the transfer of the unit to the parties’ joint names. I accept Mr BB’s evidence.

24. The Wife confirmed that the Husband made significant post-separation contributions to his superannuation. I note this because, although the parties have agreed to a superannuation split, the Wife stated that the Husband’s earnings being three times as much her own enabled him to make these significant post-separation superannuation contributions.

25. With respect to her work and earning capacity, the Wife confirmed that she has experienced success in the hospitality industry and that she had worked in several areas of the public service. She did not agree that there are full-time positions available to her. Further, she stated her wish to continue her ongoing role as the children’s primary caretaker. She conceded on this point that, with X being 17 years of age, she may need to drive him around but that he may soon obtain his driver’s licence.

26. The Wife further confirmed that the Husband pays child support, that the parties split the children’s private school fees equally, and that the Husband spends time with the children five nights per fortnight.

27. The Wife was a good witness and, in general, I accept her evidence.

    The Husband’s evidence

28. The Husband was cross-examined by Mrs Mooney SC.

29. At times during his evidence the Husband became emotional, particularly in response to questions about the children. It appears that, prior to the final parenting orders of 16 July 2021, there was a period in which the children (particularly X) had little contact with their father. This experience still greatly affects the Husband.

30. I note the Husband’s concession during cross-examination that the Wife’s evidence about historical detail is stronger than, and should be preferred over, his own. This concession was thoughtful and indicates to me that, despite his admitted memory difficulties, the Husband answered questions put to him as truthfully as he could.

31. I also note the Husband’s evidence during cross-examination that he suffers from depression and anxiety for which he has received treatment. Neither party produced evidence to the Court in this regard, but it is not difficult to accept that public service work and other front-line jobs affect employees’ mental health. I take little account of his omission in mentioning the same to the Family Consultant, since his interview occurred while he was not spending his desired time with the children. He said, and I accept, that the Family Consultant did not question him directly on this point. Insofar as this issue relates to the property proceedings, there is no evidence that his mental health has negatively impacted his capacity to work full-time. Indeed, the Husband conceded that he is likely to earn a higher income if he fulfils his ambition of obtaining a higher rank in the public service.

32. With respect to his withdrawals from the joint offset account, he confirmed that he withdrew funds without the Wife’s consent and applied those funds to purchasing the Z Street, Suburb AA house. He also applied some of the parties’ joint funds to meeting his legal fees. The Husband’s view on this point was that the offset and rent funds, though kept in joint accounts, were available to be divided equally and individually without being subject to any property settlement.

33. The Husband confirmed that his legal fees to date were $41,958.00, as evidenced by Exhibit H2. He conceded that he paid approximately $15,000.00 of his legal costs from monies withdrawn from the offset account.

34. The Husband said that the monies withdrawn should not affect the asset pool. He says that the Wife may retain the remaining sum of $71,930.00 which represents, in his view, an equal division of the offset funds. He further said that, without use of the joint funds, he would have had to obtain loans to meet renovation and legal costs.

35. With respect to the substantive inquiry under s 79 of the Act, the Husband made a number of concessions. He confirmed his current income as approximately $129,000.00 per annum (in fact, his Financial Statement confirms a sum of $129,740.00). He explained that his income increased because he has been allocated higher duties, and as stated he conceded that it may increase further if he obtains a higher rank.

36. The Husband said that he has been salary sacrificing into his superannuation since 2003, and that he has continued to do so since separation. He agreed that his superannuation had increased by $58,000.00 following separation. Ms Trezise subsequently conceded in final submissions that the current value of the Husband’s superannuation should be equally divided between the parties.

37. Mrs Mooney SC asked him to concede that it was appropriate for the Wife to remain employed part-time, as she had been during the marriage. He conceded, against interest, that the Wife should continue to work part-time to accommodate parenting commitments. He further conceded that this is in the children’s best interests.

38. The Husband also conceded that the Wife’s parents gifted the Wife her Company U Ltd shares, and that the Wife’s father never represented to him that he would receive half of the O Street, Suburb P unit.

39. With respect to the winding up of T Pty Ltd Pty Ltd, the Husband confirmed that both he and the Wife received profits from the sale of plant and equipment. The parties’ case outlines evidence a disagreement between them as to the Wife’s interest in ‘T Pty Ltd’ and any shareholdings in the corporate trustee, though the agreed asset pool as at the final hearing omits any mention of the same. Further, ‘T Pty Ltd’ has been wound up with the assets already distributed between the parties.

40. Leading up to and following separation, the Husband was stationed in City LL. He was away from the matrimonial home at B Street, Town C for long periods, and said that his relationship with the Wife was not in a good place at that time. His accommodation in City LL was either with his father or at employer accommodation, at which he paid reduced rent and food costs.

41. The Husband agreed that his current partner does not pay board or rent, and that she and her 12 year old son reside at the Z Street, Suburb AA house. The Husband said that his partner contributes to some expenses associated with their relationship.

42. I found the Husband to be a good witness, who made many concessions. Indeed, Mrs Mooney SC conceded that in giving evidence against interest there can be no argument that the Husband was not a credible witness.

    SUBMISSIONS

    The Wife’s submissions

43. With respect to the composition of the asset pool, I was urged to include the Z Street, Suburb AA house at its full value of $385,000.00. As such, I was urged to ignore the partial settlement. That agreement, if in effect, limits the value attributable to the Z Street, Suburb AA house in the property pool to $100,000.00. Mrs Mooney SC submitted to the effect that, from the moment that the Husband unilaterally withdrew monies from the offset account, he could no longer rely upon the $100,000.00 being quarantined for the purposes of final distribution. The partial settlement agreement, in the Wife’s submission, is void.

44. The Wife’s further submission on this point is that, not only is the partial settlement void, but the offset monies withdrawn were used to renovate the Z Street, Suburb AA house. Therefore, the Wife submits, she has financially contributed to the current value of that property.

45. On the issue of legal fees, Mrs Mooney SC argued that they should be added back because he met these costs in part with joint funds from the offset account. This use of joint funds, according to the Wife, justifies both parties’ total legal fees being added back to the property pool.

46. With respect to the inclusion of other assets in the pool, Mrs Mooney SC submitted that all the parties’ current assets should be accounted for, including the ‘R’ business, and the parties’ bank accounts, furniture and cars.

47. In relation to an order under s 79 of the Act, Mrs Mooney SC submitted that the net non-superannuation property pool should be divided on a 65 / 35 basis in the Wife’s favour. Broken down, she seeks an adjustment of the parties’ current interests of 7.5-10% for contributions under s 79(4) and of a further 10% for other factors under s 79(4)(d)-(g).[12]

    [12] Applicant Wife’s Amended Case Outline, 29 July 2021, 4-6.

48. The Wife’s position in her case outline was at its highest a 70 / 30 division and at its lowest a 67.5 / 32.5 division, taking into account all factors in s 79(4). At trial Mrs Mooney SC submitted that, on a conservative view of the Wife’s entitlements at 65%, this would amount to $723,864.00 of the Wife’s proposed asset pool. This, according to Mrs Mooney SC, would result in the Husband having to pay the Wife approximately $45,000.00 to meet her 65% entitlement.

49. This reflects, amongst other things, the Wife’s significant contribution of the O Street, Suburb P unit. The N Street, Suburb E house, on the other hand, should in the Wife’s view be given little weight as a contribution. The Husband, though he brought the N Street, Suburb E property into the relationship at commencement, had little equity in it at that time.

50. Mrs Mooney SC also submitted in relation to the Wife’s role as the children’s primary carer during the marriage and after separation. In her submission, the Husband’s long periods away for work (particularly in 2017) made the Wife’s contributions with respect to the children more onerous.

51. In relation to the factors under s 79(4)(d), (e), (f) and (g), I was urged to account for the parties’ disparate earning capacity and the Wife’s ongoing role as the children’s primary caretaker.

52. Further, Mrs Mooney SC submitted that I should account for the Husband’s current living situation with his new partner. He financially supports his partner and her son, and his partner does not appear to significantly contribute to their shared living costs.

    The Husband’s submissions

53. Ms Trezise, in addressing the composition of the asset pool, submitted that the Z Street, Suburb AA house should not be included at its full value. Instead, the Husband’s position is that the pool should include only the $100,000.00 figure (and not the value of any asset purchased with that sum) as agreed in the partial settlement.

1. The Husband’s position on this point is that, further to the agreement remaining in force and uncompromised, it would be unfair to include the Z Street, Suburb AA house at its full value because he has made significant post-separation contributions to that property.

2. In relation to addbacks generally, Ms Trezise argued that the monies withdrawn by the Husband from the offset account should not be reintroduced to the property pool. I should instead, in the Husband’s view, omit from the pool the reference to $71,930.00 and transfer those monies to the Wife. Any funds he has retained from the offset account would also be excluded. He proposes that this effectively results in those funds being equally divided between the parties. The Husband’s proposal that the Wife receive the balance of the joint funds, in Ms Trezise’s submission, also preserves the integrity of the parties’ partial property settlement.

3. With respect to the legal fees addback issue, the Husband’s position hinges on whether this Court adopts his proposal for the Wife to retain the balance of the offset account funds. His proposal assumes that, despite the joint account, the parties became entitled to a separate and purportedly equal share of those funds for their own use after separation. If this Court adopts his proposal, it would be unjust and inequitable to add back funds spent by the Husband (for legal fees or otherwise) from ‘his’ offset account funds. Alternatively, Ms Trezise submitted that both parties met their legal costs from post-separation resources. This is, of course, with the exception of $15,000.00 of the offset monies conceded by the Husband to have been spent on his legal fees. In that case, the Husband’s position is that the only legal fees which should be added back is the sum of $15,000.00.

4. I note that the Husband’s case outline indicates that he argues for the Wife’s interest in ‘T Pty Ltd’ to be included in the asset pool. Ms Trezise conceded that the same be removed from the agreed pool.

5. Finally in relation to the asset pool, Ms Trezise urged me to exclude the value of the ‘R’ business from the same. Ms Trezise also submitted that ‘T Pty Ltd’, and any shares or interest in the company and business, should be excluded from the property pool. ‘T Pty Ltd’ has, however, already been wound up with the assets distributed. As such, this Court only needs to determine whether ‘R’ should be excluded from the pool.

6. With respect to an order under s 79, the Husband’s position is that the contributions and other s 79(4)(d)-(g) factors justify a 60 / 40 division of the net non-superannuation assets in the Wife’s favour. Such an order, in the Husband’s view, would be just and equitable. Broken down, Ms Trezise submitted at trial that the Wife should be afforded 55% for contributions and ultimately up to another 5% under the other factors.[13]

   [13] Respondent Husband’s Case Outline, 27 July 2021, 12. I note here that the Husband’s case outline specifies an adjustment under s 79(4)(d)-(g) of 2.5%, but that this position was altered at trial.

7. Ms Trezise submitted that the O Street, Suburb P unit, transferred to the Wife in 2009, should be regarded as contribution by her to the relationship. I was, however, asked to acknowledge the parties’ joint contribution to conveyancing costs and duty on transfer for that unit.

8. In relation to earning capacity, Ms Trezise submitted that the Wife’s qualifications, experience and capacity enable her to earn more than her current income in time.

9. On the Husband’s assessment of the non-superannuation property pool’s net total value of $935,501.00, and with the Wife retaining real estate and other items as agreed, his proposal results in the Wife making a payment of $33,000.00 to the Husband.

   PRELIMINARY ISSUES WITH RESPECT TO THE ASSET POOL

10. As foreshadowed above, this Court must first ‘make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing’.[14] The Court is not necessarily bound to do so at the date of the hearing, and may establish the value of items of property at times which best serve the interests of justice.[15]

    [14] Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395, [39] (Nicholson CJ, Ellis and O’Ryan JJ).

    [15] Foley & Foley [2019] FamCAFC 61, [32] (Alstergren CJ, Watts and Austin JJ).

11. The following table extracts the property pool with the disputed items included as unresolved.

Assets	Value ($)
1	J	Warehouse at D Street, Suburb E	185,000.00[16]
2	J	B Street, Town C home	650,000.00[17]
3	H	Z Street, Suburb AA property	385,000.00[18]	OR $100,000.00, being the Husband’s partial settlement
4	W	Cash at bank	53,569.00
5	H	Cash at bank	38,206.00
6	J	Motor Vehicle 1	12,300.00
7	J	Motor Vehicle 2	52,500.00[19]	To be sold
8	H	Motor Vehicle 3	22,100.00
9	H	‘R’ business	$2,000.00	Inclusion in property pool disputed
10	H	Jet ski	7,500.00	To be sold
11	H	Furniture	10,000.00
12	W	Furniture	8,000.00
13	H	Shareholdings	9,263.00
14	W	Shareholdings	7,083.00
15	J	Joint bank accounts	71,930.00
Gross total	1,514,451.00
Liabilities
16	J	B Street, Town C home loan	163,814.00
17	H	Husband’s home loan	237,000.00	Only to be included in property pool if Husband’s partial property settlement is not included, with the Z Street, Suburb AA property being included instead
Total liabilities	400,814.00
NET TOTAL PROPERTY	1,113,637.00
Superannuation
18	H	Super Fund HH	1,542.00
19	H	Super Fund L defined benefits	419,319.00[20]	Parties have agreed that a sum of $77,709.00 be split from the Husband’s superannuation interest and added to the Wife’s interest
20	W	Super Fund MM	265,442.00
TOTAL SUPERANNUATION	686,303.00

[16] Affidavit of Mr CC, 20 July 2021, annex B, 8. Mr CC was not cross-examined, and the parties include Mr CC’s valuation as an agreed value.

[17] Affidavit of Mr JJ, 19 July 2021, annex D, 15. Mr JJ was not cross-examined, and the parties include Mr JJ’ valuation as an agreed value.

[18] Affidavit of Mr EE, 28 July 2021, annex B. Mr EE was cross-examined by Ms Trezise, and was not challenged as to his expertise or valuation. Mr EE confirmed that the valuation took into account the post-purchase renovations undertaken by the Husband. The parties include Mr EE’s valuation as an agreed value.

[19] Affidavit of Mr DD, 20 July 2021, 3. Mr DD was not cross-examined, and the parties include an agreed value of $52,500.00, being the median of the valuation range given by Mr DD.

[20] Affidavit of Mr KK, 26 July 2021, annex B, 15. Mr KK was not cross-examined. The parties include Mr KK’s valuation as an agreed value, and have agreed a superannuation split on the basis of his valuation.

Preliminary issue 1 — the Z Street, Suburb AA house and the partial settlement

1. This preliminary issue consists of two sub-issues, being:

   (a)whether the parties remain bound by the terms of the partial settlement; and

   (b)even if sub-issue (a) is answered in the affirmative, whether the Court should adhere to the terms of the partial settlement in adjusting the parties’ property interests.

2. With respect to sub-issue (a), the Wife argues that the partial settlement is no longer effective. The Husband, on the other hand, argues that that agreement should be maintained. The terms of the partial settlement are extracted at paragraph 31 of these Reasons, and were agreed by the parties with the $100,000.00 being advanced to the Husband in June 2020.[21]

   [21] Affidavit of Ms Pinter 19 July 2021 (n 1), [34]; Affidavit of Mr Pinter, 19 July 2021 (n 3), [47], [50].

3. I note at the outset that an agreement which purports to alter parties’ property interests, unless formalised by court order or through s 90G of the Act,[22] is vulnerable. This is true even of uncontentious agreements. The Full Court in Woodcock & Woodcock [1997] FamCA 5 concluded:

   “[i]t may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ “the worst of both worlds” as it would be impossible to predict from case to case, exactly what weight ought to be given to the agreement. … However it is the dominant and unwavering thread of all the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the court.”[23]

   [22] Family Law Act 1975 (Cth), ss 90G.

   [23] Woodcock & Woodcock (1997) FLC 92-739, 83,968 (Murray, Baker and Kay JJ).

4. The Full Court confirmed as much in Hsiao & Fazarri [2019] FamCAFC 37,[24] extracting the following from DW & GT [2005] FamCA 161:

   “Where parties enter into an agreement concerning property... the Court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing.”[25]

   [24] Hsiao & Fazarri [2019] FamCAFC 37, [82]-[84] (Strickland, Kent & Watts JJ).

   [25] DW & GT [2005] FamCA 161, [39] (Finn, May and O’Reilly JJ).

5. The Court in DW & GT also said the following with respect to the identification of property interests:

   “However, and perhaps more significantly, it would generally be necessary for the Court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed.”[26]

   [26] Ibid [40]-[41].

6. The partial settlement, as an agreement, does not go to the parties’ interests in property included in the pool. Instead, the partial settlement was in itself made as a representation of what the parties considered to be an appropriate interim agreement. As above, the parties’ own agreements as to sufficient property interests or alterations do not bind this Court in its determination under s 79.

7. Further, s 79 itself provides to this Court a ‘classical judicial discretion, where no one consideration, and no combination of considerations, is necessarily determinative of a result’.[27] The assessment of justice and equity is an overarching and continuing process, in which I may have regard to the principles in the Act itself and other relevant matters in the circumstances.

   [27] Bevan & Bevan [2014] FamCAFC 19, [45] (Bryant CJ and Thackray J).

8. That being said the facts which so often accompany a disputed agreement, and which would otherwise give rise to equitable estoppel, may aid this Court’s assessment of whether it is appropriate to make an order under s 79.[28] This Court may make an order in cognizance of an agreement by which it is not bound, but it cannot craft an order in that agreement’s shadow.

   [28] Woodcock & Woodcock (n 23), 83,968.

9. The terms in question with respect to sub-issue (a) relate to the following extracts (emphasis added):

   “[The Wife] is prepared to provide to [the Husband] by payment direct to his conveyancer’s trust account $100,000.00 as a partial property settlement which she will pay from the sale proceeds of her unit, in order to not affect the lower interest rate attached to the mortgage that the offset account provides.

   …

   As a partial property settlement the payment [the Husband] receives is to remain in the pool at the quantum paid over, irrespective of what changes occur to that fund of money. Is that agreed?”[29]

   [29] Affidavit of Mr Pinter, 19 July 2021 (n 3), [47], annex B.

10. The Wife argues that the ‘quantum paid over’ term is now void because the Husband, in October 2020 and without her consent, withdrew $73,473.00 and $2,192.00 from their joint offset and rent accounts respectively. This amounts to a combined sum of $75,665.00.

11. The events of July 2019 provide some important context to the partial settlement, ultimately finalised in February 2020. In July 2019, the Husband withdrew $89,132.00 from the offset account without notice to or consent of the Wife. This increased the payments on the parties’ mortgage. The Husband returned the sum of $83,632.00 to the offset account on 17 October 2019.

12. In June 2020, the Wife advanced to the Husband a sum of $100,000.00 (from the O Street, Suburb P unit sale proceeds) pursuant to the partial settlement. She did so under the impression that the Husband would ‘[leave] the offset account alone to leave the interest on it low’.[30]

    [30] Affidavit of Ms Pinter, 19 July 2021 (n 1), [34].

13. This is, plainly, different from the Husband’s understanding of the parties’ intentions for the offset monies. As outlined in the summary of Ms Trezise’s submissions, the Husband understood that account to contain joint funds which were to be divided equally instead of being included in the asset pool. He was, therefore, content for the Wife to retain the current balance of the offset account, being $71,930.00. In doing so, the Husband thought that the Wife would be afforded the same benefit of those monies as received by him.

14. The Wife disagrees that this is the case, and the Husband did not seek her permission to remove or divide the funds in the joint offset account.

15. From the last sentence of the first paragraph of the terms of the partial settlement, it is clear that a defining purpose for which that agreement existed was to maintain low interest on their mortgage. In making his withdrawal in October 2020, the Husband increased the interest payable on the outstanding mortgage principal. In the context of purely contractual disputes, such an action may invoke the equitable doctrine of promissory estoppel or more recent jurisprudence as to legally incidental implied obligations which ‘protect a vulnerable party from exploitative conduct which subverts the original purpose for which the contract was made’.[31]

    [31] Esso Australia Resources Pty Ltd v Southern Pacafic Petroleum NL [2005] VSCA 228, [25] (Buchanan JA).

16. The question in relation to sub-issue (b) is, in light of the authorities above, perhaps better described as a question of which option achieves justice and equity — those options being the inclusion of the Z Street, Suburb AA house or the $100,000.00 sum only.

17. When the Husband withdrew monies from the offset account in October 2020, he breached a fundamental term of the partial settlement agreement. That purpose, namely to maintain the low interest on the parties’ shared mortgage, was expressly stipulated in the terms to which the Husband agreed in February 2020. The Wife provided the Husband with the $100,000.00 partial settlement funds from the O Street, Suburb P unit sale proceeds because she did not want him to withdraw more offset funds. Had she known he would with draw those funds, she would not have provided him with the $100,000.00 as an interim settlement.[32]

    [32] Affidavit of Ms Pinter, 19 July 2021 (n 1), [34].

18. It is my view that, in conjunction with preliminary issue 3, it is just and equitable to include the Z Street, Suburb AA house in the property pool at its net value. I will therefore include the Z Street, Suburb AA house, with its mortgage, in the property pool for division.

    Preliminary issue 2 — the ‘R’ business

19. Ms Trezise argued on behalf of the Husband that the ‘R’ business should be excluded from the property pool.

20. The business, established as ‘R’ by the parties in 2005, has an agreed value of $2,000.00.

21. The Full Court stated in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 (‘Hickey’) that:

    “[s]ection 79 … requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property.”[33]

    [33] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (n 14), [40].

22. Further, Murphy J in Hayton & Bendle [2010] FamCA 592 cited the Hickey extract above saying that:

    “[i]t has long been the law that, just as there is no such thing as “matrimonial property” (as distinct from “the property of the parties or either of them”), no property is excluded from consideration because of its particular form or characteristics.”[34]

    [34] Hayton & Bendle [2010] FamCA 592, [90].

23. Consistently with their Honours’ remarks, I intend to include in the property pool the whole of the parties’ assets and liabilities at the date of the hearing. The business will, therefore, appear in the property pool at its agreed value.

    Preliminary issue 3 — the offset account balance

24. As outlined in the summaries of evidence and submissions, the parties’ perspectives as to the use of joint offset funds differ considerably. The Husband considered those funds to be for their individual use in ‘equal’ shares.

25. On his understanding, he withdrew funds from the offset account and put them to use for his own purposes. During cross-examination, the Husband admitted that part of the Z Street, Suburb AA house renovation costs were met with offset account monies. The Wife’s jointly-owned monies were used for the Z Street, Suburb AA house’s renovations, which in turn increased that property’s value. She has therefore contributed to the property’s value which, in line with preliminary issue 1, further justifies the inclusion of the Z Street, Suburb AA house in the property pool.

26. The key inquiry in preliminary issue 3 is whether the offset account value should appear in the property pool at its current balance, or instead whether I should add back the amount withdrawn by the Husband in October 2020.

27. In arguing that this Court should include only the $100,000.00 sum (in accordance with the purported partial settlement of February 2020), the Husband also argued that the current offset account balance represents an equal division of those funds. Directly transferring the current balance to the Wife would, according to the Husband, cure any injustice or inequity created by his withdrawal and use of the offset monies. This is, however, not the case.

28. The Husband received $75,665.00 from the offset and rent accounts. The Wife, on the Husband’s proposal, will retain only $71,930.00. As such, the funds cannot be divided equally as he proposes.

29. Even a truly equal division of the offset account monies between the parties would disadvantage the Wife. If this Court’s ultimate order adjusts the parties’ interests above 50% in the Wife’s favour the offset funds, on the Husband’s proposal, will be excluded from the order. In transferring the Wife an equal share, the Husband would receive an advantage in that those funds would not be subject to a higher percentage division if ordered. Indeed, Counsel for the Husband submitted that this Court should divide the property pool 60 / 40 in the Wife’s favour. It is, therefore, difficult to see how the Husband’s proposal with respect to the offset account monies is just and equitable.

30. The Wife also admitted that she used some offset account monies following the parties’ separation. She says that she used those funds to meet reasonable expenses in relation to the B Street, Town C house, including the mortgage, and to pay their joint credit card debts which she could not meet with her own funds at the time.[35] The Husband, in her view, received some benefit in her use of the joint offset funds. The Wife was not challenged during the trial on her use of the offset funds as described.

    [35] Affidavit of Ms Pinter, 19 July 2021 (n 1), [32].

31. I have already determined that I will include the Z Street, Suburb AA house in the property pool at its current value. That value, in part, has resulted from the Husband applying those funds to that property.

1. I note that, since both parties conceded some use of the joint offset account funds, their individual bank account balances include any offset monies remaining in their accounts.

2. As such, I will include in the property pool the current balance of the offset account. To include the offset account at its balance prior to the Husband’s October 2020 withdrawals would, alongside the Z Street, Suburb AA house and the parties’ own bank accounts, account for the same funds twice.

   Preliminary issue 4 — adding back the parties’ legal fees

3. Mrs Mooney SC, on behalf of the Wife, submitted that the entirety of both parties’ legal fees should be added back to the property pool. Those paid costs amount to $43,215.00 for the Husband and $15,429.00 for the Wife.

4. The Husband admitted during cross-examination that he paid approximately $15,000.00 of his legal costs from joint offset funds. There is no evidence to corroborate the Husband’s estimation in this respect, and he did not produce evidence as to whether his entire legal costs were met using joint offset funds.

5. Similarly, there is no evidence demonstrating the source of the funds with which the Wife met her $15,429.00 of paid legal costs.

6. The Full Court in C & C [1998] FamCA 143 said of addbacks generally that:

   “While not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives.”[36]

   [36] C & C [1998] FamCA 143, [46] (Nicholson CJ, Ellis and Kay JJ).

7. Legal fees are not justified as addbacks by reference only to their character as such. The Full Court in NHC & RCH [2004] FamCA 633 distinguished legal fees paid from the parties’ joint funds acquired during the relationship and the same as paid from a party’s own endeavours, as follows:

   “In summary while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.

   If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.

   If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.

   Outstanding legal fees themselves are generally not taken into account as a liability.

   If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.”[37]

   [37] NHC & RCH [2004] FamCA 633, [56]-[60] (Finn, Kay and May JJ).

8. I note that the Husband has retained a sum of $38,206.00 from the joint offset funds. This means that, of the $73,473.93 withdrawn from the offset account in October 2020, he has spent $35,267.93.

9. In light of these figures and the Husband’s other evidence, he could not have met his entire legal costs with the offset funds. His legal costs are greater than the amount of offset monies already spent, and he said that a proportion of these monies were used to renovate the Z Street, Suburb AA house. I have already included the Z Street, Suburb AA house in the property pool, in part because some of the offset funds ultimately contributed to its increase in value. In doing so, I must be careful to avoid double-counting monies withdrawn by the Husband from the offset account.

10. Given the lack of evidence as to the source of funds by which both parties met their legal costs, I am only prepared to add back those legal fees which the Husband conceded were paid from offset account funds. This results in $15,000.00 appearing in the property pool as an addback.

11. I decline to add back the Wife’s legal fees, as there is no evidence that they were paid from joint funds.

    CONCLUSION REGARDING THE ASSET POOL

12. The following table extracts the updated property pool, taking into account my determinations with respect to the four preliminary issues. This property pool serves as this Court’s identification of the parties’ existing legal and equitable interests in their property, pursuant to the first step in the well-established Hickey approach.

13. The gross non-superannuation asset pool amounts to $1,469,451.00, with the parties’ liabilities totalling $400,814.00.

14. The updated property pool also omits the Motor Vehicle 2 and the jet ski, as these items will be subject to separate provisions in the order.

15. The net non-superannuation property pool is, therefore, $1,068,637.00.

Assets	Value ($)
1	J	Warehouse at D Street, Suburb E	185,000.00
2	J	B Street, Town C home	650,000.00
3	H	Z Street, Suburb AA property	385,000.00
4	W	Cash at bank	53,569.00
5	H	Cash at bank	38,206.00
6	J	Motor Vehicle 1	12,300.00
8	H	Motor Vehicle 3	22,100.00
9	H	‘R’ business	$2,000.00
11	H	Furniture	10,000.00
12	W	Furniture	8,000.00
13	H	Shareholdings	9,263.00
14	W	Shareholdings	7,083.00
15	J	Joint bank accounts	71,930.00
15A	J	Husband’s legal fees	15,000.00
Gross total	1,469,451.00
Liabilities
16	J	B Street, Town C home loan	163,814.00
17	H	Husband’s home loan	237,000.00
Total liabilities	400,814.00
NET TOTAL PROPERTY	1,068,637.00
Superannuation
20	H	Super Fund HH	1,542.00
21	H	Super Fund L defined benefits	419,319.00[38]
22	W	Super Fund MM super	265,442.00
TOTAL SUPERANNUATION	686,303.00

[38] Affidavit of Mr KK, 26 July 2021, annex B, 15. Mr KK was not cross-examined, and the parties include Mr KK’s valuation as an agreed value and have agreed a superannuation split on the basis of his valuation.

SHOULD THIS COURT ALTER THE PARTIES’ PROPERTY INTERESTS?

The law

1. The Full Court in Hickey, as touched upon earlier, set out the preferred approach in relation to property alteration orders under s 79 of the Act.[39] After identifying the parties’ property as the first step, this Court must then undertake three further steps.

   [39] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (n 14), [39].

2. The second step is to:

   “identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property pool of the parties.”

3. After assessing contributions, this Court must thirdly:

   “identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g) … including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two.”

4. Fourthly, and finally, this Court should under s 79(2):

   “consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.”

5. The fact of separation alone does not enliven a presumption that the parties’ property interests should be adjusted. An order will only be made if this Court considers that leaving the parties’ existing interests intact would be unjust and inequitable.[40] Only after determining that it would be unjust and inequitable to leave intact the parties’ existing interests may a court embark upon the Hickey approach to determine how to alter those interests.

   [40] Lotta & Lotta [2017] FamCA 50, [283]-[286] (Foster J).

6. The High Court in Stanford insists that interference with legal and equitable interests of parties must adhere to principled reason.[41] Justice and equity does not admit to an exhaustive definition and it is ‘not possible to chart its metes and bounds’.[42] The principles to which this Court may have reference include, but are not limited to, ‘those principles which the Act itself lays down’.[43]

   [41] Stanford & Stanford (n 10), [41] (French CJ, Hayne, Kiefel and Bell JJ).

   [42] Ibid [36].

   [43] Stanford & Stanford (2012) 247 CLR 108, citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 257.

7. I note that the partial settlement, and the parties’ disagreements thereupon, may represent what each party considered to be a sufficient arrangement of their property interests in February 2020. As the authorities extracted with respect to preliminary issue 1 show, I am not bound nor can I be guided by such an agreement in determining whether an order is just and equitable.

8. Courts exercising jurisdiction under s 79 of the Act may, in some circumstances, accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[44] Of course, separation typically brings to an end any explicit or implied understandings between the parties as to the arrangement of their property interests. Parties in togetherness rarely create agreements or assumptions suitable for their post-separation circumstances. It may be that it will not be just and equitable to make a property alteration order, and that an agreement which {survives separation} may remain in place.[45]

   [44] Stanford & Stanford (n 10) [41].

   [45] Hsiao & Fazarri [2020] HCA 35, [50] (Kiefel CJ, Bell and Keane JJ). I note that this case involved a Deed of Gift executed by the appellant prior to the marriage which purported to adjust the parties’ own property interest in anticipation of the eventuality of their separation. Their Honours noted that, though no submissions were put to this effect, it may have been open to the primary judge to find that it was not just and equitable to adjust the parties’ existing property interests by reference to their Honours’ remarks in Stanford with respect to express or implicit agreements between parties as to the property interests as held by them during their relationship.

9. The partial settlement does not constitute an agreement in the sense discussed in Stanford, nor is it an agreement as formalised by a court order or s 90G of the Act. As such, I cannot consider the partial settlement’s terms in determining whether the s 79 discretion should be exercised.

   The parties’ existing legal and equitable interests — is an alteration just and equitable?

10. Both parties seek that their current property interests be altered. In the course of their 18-year marriage they jointly acquired assets, incurred joint liabilities, and together cared for X and Y.

11. The parties, in ceasing to live in a marital relationship, no longer understand their relationship to involve the common use of property in which they both hold an interest. This means that the ‘express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship’.[46]

    [46] Stanford & Stanford (n 10), [42].

12. It is, therefore, just and equitable for this Court to make an order altering the parties’ property interests.

    Contributions — s 79(4)(a)-(c)

    Section 79(4)(a) – financial contributions

13. Throughout their relationship, both parties earned income from employment. The Husband worked full-time during the relationship, and has continued to do so post-separation. The Wife predominantly worked part-time, particularly after the parties had children. She has continued to work four-day weeks, which the Husband conceded is in the children’s best interests.

14. The Husband earned a greater income than the Wife during the relationship, owing to the nature and position of his job as a public servant. The parties also earned income through their ‘R’ business and other small, jointly-operated businesses established during their marriage. They also jointly received rental income from the O Street, Suburb P unit and the D Street, Suburb E warehouse.[47]

    [47] Affidavit of Mr Pinter, 19 July 2021 (n 3), [25]-[26].

15. At the start of their relationship the parties owned motor vehicles and furniture and, notably, the Husband owned the N Street, Suburb E house. His equity in that property at the relationship’s commencement was between $7,000.00 and $15,000.00.[48] The parties first cohabited at the O Street, Suburb P unit, owned by the Wife’s parents at the time, and undertook renovations on the same. The Wife already lived there at that time, and it appears to be common ground that they continued to occupy the O Street, Suburb P unit during renovations to the N Street, Suburb E house.[49]

    [48] Ibid [13]; Affidavit of Ms Pinter, 19 July 2021 (n 1), [6].

    [49] Affidavit of Ms Pinter, 19 July 2021 (n 1), [7].

16. As stated, the O Street, Suburb P unit was transferred into the Wife’s sole name in July 2009.

17. At the beginning of the trial, the Husband argued that the O Street, Suburb P unit had been gifted to himself and the Wife. During cross-examination, the Husband agreed that at no time did the Wife’s father, Mr BB, indicate that the property was a gift to both of the parties. I accept Mr BB’s evidence that his intention was to benefit the Wife only. The Wife agrees that the costs of the transfer, including duty, were paid from the parties’ joint savings account.

18. Fogarty J in Gosper & Gosper (1987) FLC 91-818 (‘Gosper’) reviewed the authorities with respect to gifts received by one or both parties to a marriage by relatives of only one party to the marriage. Crucially, his Honour stated that:

    “The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a “financial contribution made directly ... on behalf of” the spouse relative...

    In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage...

    It is clearly a ‘financial contribution’ and one ‘made directly’ to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made ‘on behalf of’ one spouse.

    In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.”[50]

    [50] Gosper & Gosper (1987) FLC 91-818, 76,163-76,168.

19. The Full Court in Kessey & Kessey (1994) FLC 92-495 (‘Kessey’) referred, and added nothing further, to Fogarty J’s review as extracted above of the authorities and held that these principles:

    “... should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorized as a loan, or as any other recognized commercial transaction.”[51]

    [51] Kessey & Kessey (1994) FLC 92-495, 81,149 (Baker, Finn and McCall JJ).

20. Fogarty J in Gosper further said that:

    “[w]here there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction. Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding. Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor.”[52]

    [52] Gosper & Gosper (n 49), 76,167-76,168.

21. In Mabb & Mabb [2020] FamCAFC 18, the Full Court referred to Kessey, as follows:

    “Two important distinctions [from Kessey] must be exposed. First, Kessey involved the gift of money which enabled renovations to be done to a property in the sole name of one of the parties. Secondly, there was no evidence of the intention of the donor, who in that case, was the wife’s mother.

22. In reference to Fogarty J’s remarks above, their Honours in Mabb said the following in the context of the case with which they were faced:

    “Thus, whether, as the husband contends, the gift of the land was to benefit him alone, depends on the intention of his parents at the time of its transfer.

    It is the husband’s position on appeal that it was for the wife to prove the intention of his parents.

    We do not agree. Each party bore an evidentiary onus to establish the facts to support their respective contentions. While it is reasonable to assume, as the Full Court did in Kessey, that the presumed intention of the donor is to advantage the child in the marriage, it is no more than an evidentiary device. Clearly as Fogarty J said in Gosper, that presumption can be rebutted by evidence of the actual intention that accompanied the gift and in this case, the transfer of the land to the parties jointly is a “strong indicator” of intention.”[53]

    [53] Mabb & Mabb [2020] FamCAFC 18, [35]-[37] (Ainslie-Wallace and Aldridge JJ).

23. During submissions Ms Trezise conceded that, on the evidence, the O Street, Suburb P unit was gifted to the Wife only. Gosper and subsequent authorities dictate that, as a result, it is a direct financial contribution by her to the relationship. As such, I find that the O Street, Suburb P unit was gifted to the Wife by her parents and that property constitutes a direct financial contribution to the relationship.

24. Ms Trezise submitted, however, that the Husband’s contribution to the transfer and duty costs should be taken into account in the myriad contributions of both parties during a long marriage.

25. The O Street, Suburb P unit was sold on 15 October 2019, with the net proceeds of the sale being $186,158.00.[54] The Wife sold the unit post-separation, and deposited the sale proceeds in an account bearing her name only. Pursuant to the partial settlement, $100,000.00 of these sale proceeds were advanced to the Husband in mid-2020.

    [54] Affidavit of Ms Pinter, 19 July 2021 (n 1), [31].

26. The N Street, Suburb E house was sold on 12 December 2012, with the net proceeds of the sale being approximately $197,000.00.[55] Those sale proceeds were put towards constructing the family home at B Street, Town C.

    [55] Ibid [21].

27. The N Street, Suburb E house and the O Street, Suburb P unit are important contributions for this Court’s consideration. As aspects of the parties’ myriad contributions, these properties were of somewhat different nature in circumstances and use. Ultimately the O Street, Suburb P unit was a more substantial contribution.

28. The N Street, Suburb E house, as owned by the Husband before the relationship’s commencement, did not possess significant equity in 1998 when cohabitation commenced. That property was also substantially renovated, an effort to which the Wife contributed. Crucially, the N Street, Suburb E house was used by the parties (through its sale proceeds) to purchase and construct their family home at B Street, Town C.

1. By the same token, the O Street, Suburb P unit (as a gift from the Wife’s parents) was an important contribution by the Wife to the relationship. Part of the sale proceeds of that unit, as discussed above, formed the basis of the partial settlement to the primary benefit of the Husband. The funds from that partial settlement were, in part, invested into the property he now owns at Z Street, Suburb AA. The Wife’s contribution of the O Street, Suburb P unit in 2009 is a greater financial contribution that that of the Husband in introducing the N Street, Suburb E house. Most of the equity in the N Street, Suburb E house was gained and realised during the relationship — it was encumbered by mortgage at the point of cohabitation with the exception of up to $15,000.00 in estimated equity at that time. The Wife’s unit was, by comparison, unencumbered upon her receipt of it as a gift in 2009. That said, the parties jointly paid the transfer costs, renovated the property and met its outgoings. The O Street, Suburb P unit, pursuant to their joint efforts, increased in value after it was transferred to the Wife.

2. The evidence shows significant financial contributions to the marriage by both parties. I give all of their financial contributions, including the income of the parties and particularly the parties’ introduction of the properties to the relationship, significant weight. They form part of the myriad contributions over the course of a long relationship, and I will assess their contributions accordingly.

   Section 79(4)(b) – contributions other than financial contributions

3. Both parties undertook renovations to the O Street, Suburb P unit and the N Street, Suburb E house, and the parties shared the responsibilities of tenanting the O Street, Suburb P unit.

4. Both parties were involved in the businesses established and operated during their marriage.

5. While the Wife says that the Husband has exaggerated the scale of the work undertaken by him on the B Street, Town C house,[56] the Husband nevertheless contributed in this manner. I accept that the Wife, too, assisted during the build. Contributions in this respect were largely equal, though the Husband undertook more of the construction of the home. As a result, I assess the Husband’s contributions in this regard as being slightly higher than that of the Wife.

   [56] Ibid [21].

   Section 79(4)(c) – contributions as a homemaker and parent

6. I find that the Wife was, and following separation continued to be, the primary contributor to parenting the parties’ children. I also accept the Wife’s evidence that she was primarily responsible for the homemaking duties during the marriage.

7. The Husband was pressed to concede that the Wife was the children’s primary carer in cross-examination, and did not agree. My impression of his disagreement was that, in his view, he had been prevented from equally contributing to parental responsibilities post-separation. He felt that he should not be penalised as a result.

8. In reality, the Wife has been the primary contributor in relation to parenting as the children have remained primarily in her care post-separation. The Wife was also the main contributor with respect to parenting and homemaking during the marriage. This is by virtue of the way in which the parties structured their lives — the Husband worked full-time to benefit the family and the Wife, in working part-time, undertook primary responsibility for parenting and homemaking duties. This was also the case while the parties constructed their home at B Street, Town C, in that the Husband undertook more construction work and the Wife cared for Y at that time.

9. I reject the Wife’s submission that her parenting contributions were made more onerous by the long periods in which the Husband worked away from the family home at B Street, Town C, particularly towards the end of the marriage, and that this extra burden justifies a further percentage adjustment in her favour.

10. Many relationships require one party to work away from home while the other party remains primarily responsible for the children in their day-to-day care. In those circumstances, both parties make sacrifices for the benefit of the family as a whole. Such arrangements do not, in my view, justify any additional adjustment favouring the party caring for the children to the detriment of the party who was at times required in their employment to work away from home.

11. This Court’s finding in this respect is that the Wife made greater contributions to homemaking and child care, both during and after the relationship.

    Conclusion regarding contributions

12. The overwhelming weight of authority indicates that, in assessing contributions under s 79(4)(a), (b) and (c) of the Act, this Court must consider each contribution in the context of the ‘myriad’ or ‘miscellany of’ contributions made over the course of a long marriage.[57] The work of a court of first instance in this respect is explained in Fields & Smith [2015] FamCAFC 57 as follows:

    “the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s 79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.”[58]

    [57] Jabour & Jabour [2019] FamCAFC 78, [59] (Alstergren CJ, Ryan and Aldridge JJ); Wallis & Manning [2017] FamCAFC 14, [110] (Thackray, Ainslie-Wallace and Murphy JJ).

    [58] Fields & Smith [2015] FamCAFC 57, [168] (Bryant CJ and Ainslie-Wallace J). The Full Court has consistently cited this approach; Jabour & Jabour (n 56), [60].

13. Contributions are to be assessed according to their ‘nature, form and extent’, and not by reference to whether those contributions are a causative link in a chain ultimately leading to a capital gain.[59]

    [59] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J). I note here also their Honours’ remarks in Jabour & Jabour (n 56), [73], which specifies that a property brought into the relationship is itself to be regarded as a contribution, and that property is not to be viewed as a contribution by the party in so bringing that property into the relationship.

14. In essence, I am to regard each contribution as but one of all the myriad contributions made during the relationship. This approach is intended to avoid contributions being overlooked.[60]

    [60] Jabour & Jabour (n 56), [82].

15. It is clear that both parties worked hard throughout their 18-year marriage and following separation. Together they purchased, renovated and sold properties, and jointly engaged in constructing the family home at B Street, Town C. They were entrepreneurial in establishing and operating a number of small businesses, and I accept the Wife’s evidence (as repeated by her several times) that the parties were jointly involved in these ventures. Alongside their main jobs and shared ventures, they also cared for their children as agreed between them.

16. Both parties made myriad contributions, being financial and non-financial, and their contributions continue to this day. Specifically in relation to the N Street, Suburb E house and the O Street, Suburb P unit, these properties are both important contributions. While the O Street, Suburb P unit was financially more impactful as a contribution in 2009, the introduction of both properties was nonetheless important. It is to be remembered that the N Street, Suburb E house was sold to purchase the B Street, Town C house. By bringing this property into the relationship, the Husband provided a strong platform upon which the parties built their asset base.

17. I find that the parties’ contributions, as of commencing cohabitation and until the date of hearing, should be assessed as 52.5% attributable to the Wife and 47.5% attributable to the Husband.

18. The effect of this is the Wife retaining assets at a value of $561,034.34 and the Husband retaining assets at a value of $507,602.58.

19. Ms Trezise conceded that the parties’ contributions should be assessed as 55 / 45 favouring the Wife. Notwithstanding this concession, such an assessment would not properly realise the myriad contributions made by both parties over 18 years. It would, in effect, compare the contributions of the parties as against the contribution of the O Street, Suburb P unit by the Wife as opposed to viewing it as part of the parties’ extensive contributions.

    Other relevant factors — s 79(4)(d)-(g), including s 75(2) pursuant to s 79(4)(e)

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

20. The Full Court in Beck & Beck (1983) FLC 91-318 defined ‘earning capacity’ for the purposes of s 75(2)(k), applicable the Act generally, as:

    “a capacity to obtain income which could be used to provide maintenance … and not merely as current income from personal exertion or from the use of personal skills.”[61]

    [61] Beck & Beck (1983) FLC 91-318, 78,166 (Evatt CJ, Emery and Hase JJ).

21. I note that both parties will retain the benefit of real estate and superannuation assets which, by virtue of their character as such, typically appreciate in value over time.

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

22. Paragraphs 188 – 201 below extract the factors within s 75(2) which are relevant to include pursuant to s 79(40(e).

    Section 75(2)(a) — the age and state of health of each of the parties

23. The Wife is 47 years of age, and the Husband is 46 years of age.

24. The Husband is employed full time. The Wife works 4 days per week.

25. Neither party produced evidence nor submitted with respect to health issues which affect their ability to maintain gainful employment.

    Section 75(2)(b) — the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

26. The Husband earns approximately $129,740.00 per annum. The Wife earns approximately $67,892.76 per annum, noting that this figure includes her employment income, rental income, Family Tax Benefit and child support of $217.63 per week.

27. Both parties will retain the same level of superannuation as a result of the order ultimately made, and will both retain real estate assets.

    Section 75(2)(c) — whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

28. Pursuant to the final parenting order of 16 July 2021, the Husband spends substantial and significant time with the children. This time is spent for five nights per fortnight during school terms, and one half of every holiday period.

29. The children live primarily with the Wife.

30. Neither party produced evidence nor submitted that they are unable to support themselves, or the children, with their available incomes as including child support and government benefits.

    Section 75(2)(d) — commitments of each of the parties necessary to enable them to support themselves and a child or another person that the party has a duty to maintain

31. Neither party is responsible to support any other person other than X and Y.

32. The Husband appears to financially support his partner and her son, though I note his evidence that his partner does contribute to some costs of their relationship.

    Section 75(2)(f) —the eligibility of either party for a pension, allowance or benefit under any law or superannuation fund, and the rate of any such pension, allowance or benefit being paid to either party

33. The Wife receives the Family Tax Benefit A and B, being in the amount of $180.00 per week.

    Section 75(2)(g) — a standard of living that in all the circumstances is reasonable

34. During their marriage, the parties enjoyed a reasonable standard of living. There is no evidence to suggest that either of them cannot continue to attain a reasonable standard of living post-separation.

    Section 75(2)(h) — the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income

35. Neither party requires an additional adjustment in their favour for the purpose of engaging in further education courses.

36. The Husband gave evidence, which I accept, that he is ambitious to obtain a higher rank in the public service. He may need to sidestep into an administrative role for a time, and thus reduce his income, before becoming eligible for such a promotion. A reduction in the Husband’s income will not significantly affect his ability to support himself or his children.

    Section 75(2)(j) — the extent to which a party has contributed to the income, earning capacity, property and financial resources of the other party

37. The Wife gave evidence, and the Husband conceded, that she worked and continued to work part-time to continue being the children’s primary caretaker. She desires to continue working 4 days per week, as this affords her the flexibility to do so.

38. In undertaking the primary caretaker role during the relationship, the Wife contributed to the Husband’s income and current earning capacity. That arrangement was agreed between the parties during their relationship. The Husband largely conceded that the Wife doing so during the relationship and in the future is in the children’s best interests.

    Section 75(2)(k) — the duration of the marriage and the extent to which it has affected the earning capacity of each party

39. The Wife earns an annual income from all sources of $67,892.76. The Husband earns an annual income of $129,740.00.

40. The Wife therefore earns $61,107.24 less than the Husband per annum.

41. That said, I note the Husband’s current income is in part attributable to higher duties undertaken by him at work. Further, the Wife’s income includes child support and Family Tax Benefit.

42. There is also a marked difference in the income-earning potential of the parties, given the nature of their employment. Even if the Wife did undertake full-time employment, it would not significantly bridge the gap between the parties’ respective incomes.

43. I note finally that the Husband’s higher income also allows him to contribute more to his superannuation, which again affords him a financial benefit to which the Wife does not have access.

    Section 75(2)(m) — if either party is cohabiting with another person—the financial circumstances relating to the cohabitation

44. The Husband has re-partnered, and cohabits at the Z Street, Suburb AA house with his partner. His partner’s 12 year old son also resides there, at least some of the time. The Husband’s evidence was that his partner does not substantially contribute, in financial terms, to their relationship.

45. The Wife says that she, too, has re-partnered. On her evidence, they do not cohabit.[62]

    Section 75(2)(n) — the terms of any order made or proposed to be made under section 79 in relation to the property of the parties

    [62] Affidavit of Ms Pinter, 19 July 2021 (n 1), [49].

46. On the 52.5 / 47.5 division of the net non-superannuation and superannuation pool (being $1,068,637.00), as proposed, results in the Wife retaining assets of $561,034.34 and the Husband assets of $507,602.58. Pursuant to such an order, the Wife’s share amounts to $53,431.85 more than that of the Husband.

    Sections 75(2)(p)and 75(2)(q) — the terms of any financial agreement that is binding on the parties to the marriage or the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage

47. I have already determined that the partial settlement agreement, as contained in neither an order or in accordance with pt VIIIAB of the Act, does not bind this Court and shall not be taken into account in the determining justice and equity of an order under s 79.

    Section 79(4)(f) – any order made under this Act affecting a party to the marriage or a child of the marriage

48. As above, the parties are subject to final parenting orders made by consent on 16 July 2021.

    Section 79(4)(g) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

49. The Husband pays child support in the amount of $217.63 per week, and has done so from the time that the Wife applied for the same.

    Conclusion regarding s 75(2) factors

50. I have carefully considered the factors contained in s 79(4)(d), (e), (f), and (g), noting the incorporation of relevant s 75(2) factors by virtue of s 75(4)(e). In particular, I have considered the Wife’s primary care of the children, her lesser income, and the Husband’s relatively high earning capacity in years to come. I have also considered the fact that the Wife will receive $53,431.85 more than the Husband by virtue of my assessment under s 79(4)(a)-(c).

51. In my assessment, there should be a further adjustment in the Wife’s favour for s 79(4)(d)-(g) factors of 10%.

52. My determination in this respect means that, overall, there should be a 62.5 / 37.5 division of the non-superannuation asset pool in favour of the Wife.

53. In dollar terms, this results in the Wife receiving property and monies in the value of $667,898.13. The Husband will receive property and monies in the value of $400,738.88.

54. The Wife will retain net assets valued at $639,068.00 based on the parties’ agreed allocation of assets. The Husband will be required to pay the Wife a sum of $28,830.13 to achieve a 62.5 / 37.5 division.

55. Each party will retain real estate, shares, chattels and motor vehicles.

56. With respect to both the percentage division and the overall result upon the actual items contained with the property pool, I am satisfied that the proposed division of the non-superannuation asset pool is just and equitable.

    FINALISING THE PROPERTY SETTLEMENT

57. The parties consent to an equal division of superannuation, and provided a minute in relation to superannuation. The ultimate order will reflect that agreement.

58. The parties also agreed that the percentage division under s 79 would apply to the sale proceeds of the Motor Vehicle 2 and the jet ski. The order will therefore require that the sale proceeds from the Motor Vehicle 2 and the jet ski be divided on a 62.5 / 37.5 basis in favour of the Wife.

59. The total net property pool, including the parties’ superannuation entitlements, amounts to $1,754,940.00. In being afforded 62.5% of the net non-superannuation pool plus $77,709.00 pursuant to the agreed splitting order, the Wife will receive 57.61% of the total net property pool. This division also includes the Wife retaining her Super Fund MM superannuation interest. The Husband, in being afforded 37.5% of the net non-superannuation pool plus his remaining superannuation interests with Super Fund HH and Super Fund L, will receive 42.38% of the total net property pool.

60. To effect the 62.5 / 37.5 division, the Husband will pay to the Wife a sum of $28,830.13. This figure accounts for the gap between the value of the assets retained by the Wife and the value of her entitlement.

61. Including the $77,709.00 pursuant to the agreed superannuation split, the Husband will make a payment to the Wife of $106,539.13 pursuant to the fixed figures contained in the order. Procedural fairness was provided in relation to the superannuation splitting order on 11 October 2021.

62. I note that, while no fixed figure is yet available for the Motor Vehicle 2 and the jet ski, the parties will make further payments to give effect to the 62.5 / 37.5 division of those sale proceeds.

63. As said, both parties will retain quality assets. Standing back, and considering not only the mathematics of the exercise but also the practical effect of the order,[63] I am satisfied that the order made is just and equitable.

    [63] Clauson & Clauson (1995) FLC 92-595, 81,909-81-910 (Barblett DCJ, Fogarty and Mushin JJ).

I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

Associate: 

Dated:       25 November 2021