Rayment & Pinkham (No 2) - [2023] FedCFamC2F 990

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rayment & Pinkham (No 2) [2023] FedCFamC2F 990

File number(s): PAC 4274 of 2020

Judgment of: JUDGE STREET

Date of judgment: 6 September 2023

Catchwords: FAMILY LAW – PROPERTY - UK Pensions not asset - transfer of investment property to wife - allowance for same from net sale proceeds of matrimonial home - split 60:40 – husband greater financial resources and greater income earing capacity

Legislation:
Armed Forces Act 2006 (c.52)

Armed Forces Pension Scheme Act 1975

Bankruptcy Act 1966 (Cth)

Family Law Act 1975

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Babett & Falconer (2015) FLC 98-067

Carron & Laniga [2019] FamCAFC115

C & C (2005) FLC 93-220

Dickons & Dickons [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

Gresham & Gresham No 2 (2023) FedCFamC1F 51

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143

Jabour & Jabour [2019] FamCAFC 78

Kennon & Kennon [1997] FamCA 27

Kildea v Kildea (2007) 38 Fam LR 347

Manolis v Manolis (No 2) [2011] FamCAFC 105

Perrin & Perrin (No 2) [2018] FamCAFC 122

Preston & Preston [2022] FedCFamC1A 157

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 166

Date of hearing: 15-18, 22 – 23 May 2023 and 17 July 2023

Place: Sydney

Applicant Representative: Mr D Blackah of Counsel

Solicitor for Applicant: John Hall Lawyers

Respondent Representative: Ms R Druitt of Counsel

Solicitor for Respondent: Hills Family Law Centre
ORDERS

PAC 4274 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RAYMENT

Applicant

AND:
MR PINKHAM

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

23 MAY 2023

THE COURT ORDERS THAT:
1.The marriage of the applicant and the respondent is dissolved by this divorce order under Part VI of the Family Law Act 1975 (Cth) which takes effect, given that the Court declares it is satisfied that proper arrangements being, final parenting orders dated 18 May 2025, have been made for the children X born in 2007 and Y born in 2010, at the expiration of one month from the making of this order.
2.Any other requirements under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth.) for the making of the divorce application in respect of the order in the Further Amended Initiating Application filed 23 May 2023 are dispensed with and waives any additional fees in respect of the divorce application and upon the taking effect of order 1 above directs the Registry Manager to issue the signed certification of divorce to the applicant and the respondent.
3.That the husband shall within 28 days sign all deeds and instruments including all documents and do all acts and things necessary to be done by him to transfer to the wife all his right title and interest in B Street, Town D being all that land contained in folio identifier: … ('Town D').
4.That within 120 days of the date of these orders the former matrimonial home located at C Street, Suburb E in the State of New South Wales ("the Suburb E property") is to be sold by private treaty at a price to be agreed upon between the parties and failing such agreement, to be determined by the proper officer of the Real Estate Institute of NSW or their nominee and the parties take all steps and sign all documents to effect the sale and by way of further consequential order in relation to the sale:
(a)Within 7 days of the date of these orders the parties shall jointly instruct John Hall Lawyers Pty Ltd 2023 to prepare a contract for sale and to act as the Conveyancer.
(b)Within 7 days of the date of these orders the parties shall jointly instruct F Company as Agent to market the property for sale.

5.That in the event that the Suburb E property fails to be sold by private treaty in accordance with Order four (4) above, then both parties shall take all necessary steps and execute all necessary documents to cause the property to be sold by public auction at the earliest possible date at a reserve price to be agreed between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of NSW or their nominee and the parties take all steps and sign all documents to effect the sale.
6.That after discharge of G Bank mortgages and accounting for all the usual costs of sale, the net sale proceeds of the Suburb E property are to be applied first in payment of the amount of $274,000 to the respondent and the balance thereafter be divided between the parties such that the Applicant receives 60% and the Respondent receives 40%.
7.Pending the sale of the Suburb E property under Order 4:
(a)The Applicant shall be solely responsible for the payment of all rates, G Bank monthly loan payments for the two loan accounts and outgoings of the Suburb E and Town D property as they fall due up to and including the settlement date.
(b)The Applicant shall maintain the Suburb E property and ensure that it is kept in a clean, neat and marketable condition.

8.The parties shall otherwise retain all other property owned by each of them, to the exclusion of the other, including superannuation and pensions.
9.Should either party refuse or neglect to sign, within fourteen days of a request to do so by the other party, any deed or instrument including any documents necessary to give effect to these orders, then the Registrar of the Federal Circuit and Family Court of Australia in its Parramatta Registry and in his absence, the Deputy Registrar, are authorised and empowered under s 106A of the Family Law Act 1975 (Cth.), to sign all necessary documents and do all necessary things on behalf of the parties.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION

These proceedings are now only property proceedings under Part VIII that were commenced by the applicant mother on 18 August 2020. There were final parenting orders made on 18 May 2023 being day four of a joint parenting and property hearing. The Court published written reasons at the time of making those final parenting orders and discharged the ICL.
There are the two children of the marriage, X, born in 2007, and Y, born in 2010. X is to live with his mother and spend time with his father in accordance with his wishes. Y is to spend effectively equal time with both parents.
The property proceedings occupied 7 days having been heard over 15-18 May, 22-23 May 2023. The Court accepted the invitation of the respondent to provide an aide memoire made on 23 May 2023 at T396.16, and on 29 May 2023 emailed the parties inviting provision of an aide memoire by the respondent within 7 days and by the applicant within a further 7 days and permitted either party to request for further oral argument. The respondent provided an aide memoire on 2 June 2023 and the applicant provided an aide memoire on 9 June 2023.
The respondent, pursuant to the permission given on 29 May 2023, requested a date for a further oral argument at the same time as providing the aide memoire dated 2 June 2023 and, after liaison with the parties as to dates, on 8 June 2023 the matter was fixed for further oral argument on 17 July 2023. The Court had the seventh hearing day on 17 July 2023, receiving further oral submissions on that day and received further written submissions from the respondent dated 17 July 2023.
BACKGROUND
The parties commenced cohabitation during 2003 and were married in 2004. The parties separated on 20 February 2019 and the respondent moved out of the matrimonial home on 13 June 2020. The matrimonial home at Suburb E was purchased in joint names in 2016 and although contested, for reasons identified below, the Court finds a current market value for this property of $3,300,000. There was also purchased a property at Town D, as tenants in common, 80% owned by the applicant and 20% owned by the respondent in 2017 with an agreed current market value of $685,000. The Suburb E property was used as mortgage security for the loan to purchase the Town D property.
The applicant contended that the respondent’s UK Armed Force Pension should be included in the asset pool with an equivalent value of $652,635.35 and the respondent maintained this was not an asset of such value that should be treated as a future financial resource.
The applicant sought a 60%:40% property split in her favour including the UK pension as an asset from an alleged net pool of between $2,297,977- $3,024,977.
The parties agreed that the applicant wife should retain the Town D property, but with different views as to how the transfer of the respondent’s 20% interest should be treated in being brought to account in the net property pool and determination of what is just and equitable.
The applicant contended that the retention of the UK Pension by the respondent and the transfer of the respondent’s interest in the Town D property should be treated as effectively cancelling each other out so that the net property pool for adjustment would be the proceeds of Suburb E.
The respondent maintained that the UK Pension was not an asset and sought a 52%:48% split of a net property pool comprising the whole of the current value of the Town D property and the net proceeds of the Suburb E property.
The respondent submitted that the applicant should receive the Town D property treating it as at the full value of $685,000 together with the net proceeds from the sale of the Suburb E property being $3,300,000 less the two loan accounts amount to $1,512,658 less sale costs assume $100,000 leaving $1,687,342. The respondent submitted that adding the value of Town D of $685,000 to the net proceeds of Suburb E of $1,687,342 meant that the net property pool should be $2,372,342.
The respondent submitted the applicant should receive 52% of $2,372,342 being $1,233,617 and that the respondent should receive 48% amounting to $1,138,724. Both parties assumed selling costs of Suburb E at $100,000 and the net proceeds from the sale of Suburb E would then be $1,687,342.
The respondent maintained that the applicant would receive the benefit of that 52% by including the transfer of Town D at full value and then 33% of the net proceeds of sale of the Suburb E property amounting to $548,617. The respondent says this equates with 52% of the net property pool comprising both properties giving the applicant $1,233.617. The respondent maintained that the respondent would then receive 67% of the Suburb E property being $1,138,724.
The at law position of the applicant owning as tenant in common 80% of the Town D property amounts to $548,000 and the respondent owning as tenant in common 20% of that property amounts to $137,000. The at law position for Suburb E being 50%:50% means the applicant’s interest in the net proceeds amounts to $843,671 and the respondent’s interest in the net proceeds amounts $843,671.
This means at law the applicant’s combined interest in the net property pool comprising Town D and Suburb E amounts to $1,391,671. This means the applicant’s combined interest in the net property pool comprising Town D and Suburb E amounts to $980,671.
The respondent’s proposed net pool approach of both properties amounting to $2,372,342 apportioned 52%:48% in favour of the applicant reduces the applicant’s at law interest by $158,671. The respondent’s proposed net pool approach increases the respondent’s at law interest by $158,053.
The key issues in the proceedings are the value of Suburb E, whether the UK Pensions are an asset, the contributions, the future earning capacities, the future needs, and adjustment so that the % and amounts that are a just and equitable exercise of the power under s79.
DOCUMENTS RELIED UPON
The applicant mother relied upon the following Affidavits:
(a)Affidavit of Ms Rayment filed 14 April 2023;
(b)Affidavit of Ms H filed 26 April 2023;
(c)Affidavit of Ms J filed 7 May 2023;
(d)Affidavit of Ms K filed 7 May 2023;
(e)Affidavit of Ms L filed 8 May 2023;
The respondent father relies upon the following Affidavits:
(a)Affidavit of Ms M failed 16 April 2023;
(b)Affidavit of Mr Pinkham filed 16 April 2023;
The following material was tendered into evidence:
·Exhibit A – Financial Statement of Applicant Wife filed 14 April 2023;
·Exhibit B – Notice of Child Abuse, Family Violence or Risk of Applicant Wife filed 5 May 2023;
·Exhibit C – Tender Bundle 1 of Applicant Wife;
·Exhibit D – Tender Bundle 2 of Applicant Wife;
·Exhibit E – Financial Statement of Respondent Husband filed 14 April 2023;
·Exhibit F – Tender Bundle 2 of Respondent Husband;
·Exhibit G – Tender Bundle 3 of Respondent Husband;
·Exhibit H – Tender Bundle 1 of Respondent Husband;
·Exhibit I – Child Inclusive Conference Memorandum filed 15 June 2021;
·Exhibit J – Family Report filed 22 July 2022;
·Exhibit K –Logbook of Respondent Husband;
·Exhibit L – Section 50 Evidence Act 1996 (Cth) – Proof of Voluminous or Complex Documents demonstrating the Respondent Husband’s nights away sourced from his Logbook;
·Exhibit M – Respondent Husband ATO Tax Screenshot;
·Exhibit N – Tender Bundle 3 of Applicant Wife;
·Exhibit O – Tender Bundle 4 of Respondent Husband;
·Exhibit P – Tender Bundle 4 of Applicant Wife;
·Exhibit Q – Joint Balance Sheet sent 2pm (23 May 2023);
·Exhibit R – Copy of the parties’ marriage certificate dated 2004.
CHRONOLOGY

Date Event

1978 Applicant wife born

1979 Respondent husband born

1999 Respondent husband joins Armed forces (United Kingdom)

2003 Parties commence cohabitation in the United Kingdom

2004 Parties marry in the United Kingdom

2007 X is born. Applicant wife takes 6 months maternity leave.

2010 Y is born. Applicant wife takes 12 months maternity leave.

2011 Respondent husband offered armed forces 3-year exchange in Australia and family relocates to Sydney in 2011. Applicant wife takes 6 months off work pending her health care registration.

2012 Applicant wife commences 10-year moratorium work as a health care worker at the clinic and 3 days a week work with N Company.

2015 Respondent husband returns to the United Kingdom for 2 year return of service.

2016 Applicant wife and the children become Australian citizens.

2016 Applicant wife starts work as health care worker at Suburb O 3 days a week.

2017 Town D property is purchased for $480,000 to facilitate the children’s sports activities and competitions.

2018 Respondent husband join armed forces

2019 Respondent husband becomes an Australian citizen.

2019 Respondent husband commences relationship with Ms M

23 February 2019 Parties separate under same roof.

Early 2020 Applicant wife fractures a bone.

13 June 2020 Respondent husband moves out of the family matrimonial home and in with his defacto partner Ms M at Suburb P.

19 August 2020 Applicant wife commences proceedings.

September 2020 Respondent Husband ceases making contributions to the joint account ending #...29

2020 – 2021 Respondent husband resides in Town Q rental.

May 2021 Respondent husband resides in Suburb R rental.

Mid-2021 Respondent husband makes complaint about applicant wife and officers visit the applicant wife and children at Town D.

Late 2021 Respondent husband makes Police and Health Care Complaints Commission complaint about the applicant mother vaccinating the children.

2 September 2021 Interim parenting Orders made.

October 2021 – 2022 Respondent husband refuses to sign children’s passport renewal.

February 2022 X stops spending time with the respondent husband.

March 2022 Fixed rate mortgage on Suburb E expires and not able to refinance as husband refuses to sign, defaults to variable rate. Fixed rate on Town D expires and defaults from interest only to principle and interest on variable rate.

2023 S is born to respondent husband and defacto partner Ms M.

18 May 2023 Final Parenting Orders were made by Judge Street

22 May 2023 Final Parenting Orders were amended pursuant to the Slip Rule.
APPLICANT’S EVIDENCE

The applicant mother said she works as a health care worker and having been born in the UK obtained Australian citizenship in 2016. The parties commenced cohabitation in 2003 and were married in 2004. The applicant stated they separated on 20 February 2019. The applicant identified a change in career after the birth of X and then retraining.
The applicant was the first child’s primary care given and attended to his needs with limited assistance by the respondent when not posted overseas. After birth of Y in 2010 the applicant took 6 months maternity leave and then returned to a part-time health care career. The applicant referred to employing au pairs to help but remained the two boys primary care given with limited assistance from the respondent.
The applicant identified several overseas deployments by the respondent during the children’s early years. The applicant identified an additional after hour service that allowed a significant amount of time with the children.
In 2011 the parties agreed to relocate to Australia as a result of an exchange posting and relocated to Sydney within a few months weeks of posting. The respondent became an Australian citizen in 2019.
The applicant was restricted by a 10 year moratorium in relation to overseas health care workers which restricted her work. That restriction has ceased and the applicant has never returned to full time work, but rather undertaken part-time roles within the health care profession. The applicant explained social controlling behaviour by the respondent such as not being allowed to go to Christmas parties without him. The applicant remained the primary carer for the children and attend all school activities, carnivals, sports days and school events.
The applicant explained how the au pairs were engaged by her and referred to inappropriate alleged comments picked up by the children from the respondent.
The applicant says that the respondent was deployed overseas for the majority of their marriage and didn’t assist in a parental capacity with the children’s routines or disciplinary regimes.
The parties had no significant assets at the start of their relationship and that both are entitled to a UK State Pension upon turning 68. The applicant met part of X’s school fees and Y’s childcare whilst living in Australia and that the respondent kept a portion of his salary for living expenses in the UK until his return of service was completed in 2017.
The applicant said the respondent spent a third of every out of the family’s country of residence on deployment.

The respondent’s taxable income for 2021-2022 was $199,654. Apart from maternity leave and 6 months off upon arriving in Australia the applicant has worked continuously during the relationship. The applicant earns about $130,000 per annum and her taxable income for 2021-2022 was $107,844.
The parties maintained a joint account to meet family expenses and the applicant said that the respondent’s contribution equated to about 1/3 of the family expenses and that the applicant contributed the balance and additional amounts when there were insufficient funds.
The applicant addressed her homemaker and parenting role as the primary carer. The applicant deposed to the respondent not assisting in parenting or in relation to supervision of the children. The applicant said the respondent played with the children but rarely participated in their discipline or supervision. It was the applicant who planned all family holidays and activities whilst the respondent was generally away about a third of every year of more. Whilst the respondent was on his 2 year return of service in the UK, the applicant was the sole carer for the children and sole homemaker. The applicant identified little assistance by the respondent with care of the children, housework or home repairs. The applicant identified that the au pairs helped with the housework and that the applicant attended to the gardening and lawn without assistance from the respondent. The applicant also arranged for servicing and repairs of the family vehicles, payment of family bills and organising the family finances without assistance from the respondent. The applicant recruited and supervised the au pairs without assistance from the respondent.
After separation, contributions included attempts to refinance the fixed interest loan but there was a refusal by the respondent to consent to several refinances.
The applicant fell and fractured a bone in early 2020 whilst she was working from home 50% of the time due to COVID. The applicant was off-work for 4 days due to the injury and returned to work with reduced hours for one week. The respondent did not increase his financial or non-financial contributions whilst the applicant was recuperating. The applicant needed to take extra shifts to cover the mortgage and bills.
During the marriage the parties held a joint bank account into which the respondent paid 1/3 of the matrimonial expenses and the applicant paid the balance. Since separation the applicant solely has paid the home loan repayments for Suburb E and Town D. The applicant has since separation paid the school fees and half of the additional educational expenses (treating the other half as met from child support payments by the respondent). Further it was the applicant who has paid the sports fees, health insurance, medical and dental expenses and telephone expenses. The respondent provided no other financial support than child support payments.
The applicant has the primary care of the two children aged 15 and 13, being 100% of the time for X and 60% of the time for Y. The applicant sacrificed her career and moved jobs six times to support the respondent’s career for 17 years. The applicant explained her health issues currently interfere with her working ability and that this interference will increase.
The applicant deposed to her earning capacity being reduced due to health issues as well as given her primary care role and that her income is significantly lower this year. The applicant said that there is a disparity in comparable earning capacity with the respondent earning about $100,000 more than the applicant.
The applicant said that the respondent receives about £835 a month on top of his Australian armed forces wage and has a significant armed forces pension from which he will receive a lump sum when he turns 55. The respondent also has Australian superannuation. The respondent was also said to be in receipt of rental allowance from the armed forces and would receive other assistance purchasing a property. The respondent’s partner has left the armed forces and is studying to become an educator.
The applicant explained what occurred around separation and that after repeated refusal by the respondent to participate in counselling they both decided to separate and live under one roof from 23 February 2019.The applicant continued her primary caring role and took Y on a family holiday to City T in 2019. Both parties went to City V for a sports camp with the boys in 2019 and the applicant also took the boys to the holiday home at Town D. The applicant said that the respondent did not engage with the boys or their activities and left at 7am returning at 6pm. When the applicant was at work the boys were cared for by the au pairs and otherwise the applicant cared for the boys without the respondent’s assistance.
The applicant took leave every school holidays to care for the boys and the respondent did so once being the City V trip in 2019 into early 2020. The applicant organised and paid for that holiday although she had to leave a week later to join the City V trip.
The applicant deposed to conversations in May 2020 as to the respondent getting the boys used to not seeing him and then initially agreeing to come to Town D and then deciding he couldn’t attend being stuck in Perth. In mid-2020 the applicant discovered calls on their joint account and use of their food delivery account for his relationship with his new partner. The applicant told the respondent to leave the house and he left to commence residing with his new partner.
The applicant identified a work bonus of $18,000 being received by the respondent in early 2020 and using the sum for helping with the boys. The respondent moved into a property at Town Q for about a year more than 50km from the family home and boys school that made spending time or helping with sporting commitments very difficult.
The applicant explained unsuccessful attempts to arrange time for the father with the children in texts and emails after 13 June 2020. The applicant said the respondent came up to Town D in July 2020 during the boys’ holidays and left a few days later. The respondent did not contribute to sporting commitments during 2020 and declined the offer to spend time with the boys at Town D in September 2020.
The applicant explained a text and events of mid-2020 when the respondent showed up to take the boys to school and his behaviour that caused her to be upset and crying. The applicant said the respondent caused the gate to shut and that the applicant hurt her hand. This incident lead the applicant to report the same to the police at Suburb W.
In September 2020 the respondent picked up the boys but returned them early without staying to watch their sport. The boys spent a week with the respondent in October 2020. The applicant took the boys to Town U during the Christmas holidays. The respondent had the boys for one week of the school holidays in 2021. The respondent regularly cancelled, rescheduled or cut short times with the boys.
The applicant has paid for pre-paid mobiles for the boys without contribution from the respondent. The applicant currently lives with the boys at the matrimonial home. The relationship between X and his father broke down in February 2022. It is the applicant who has attended school events, sport and parent/teacher interviews.
On 2 September 2021 the Court made interim orders for Y to spend 5 nights a fortnight with the respondent. The applicant described her daily routine and that she currently works as a contractor 4 days per week with flexibility to work from home.
The applicant has commenced a relationship in 2020 and the boys have a strong relationship with Mr Y. The applicant addressed emotionally controlling behaviour by the respondent. There was an alleged incident in May 2020 involving a mobile setting which the applicant believed occurred whilst she was asleep. The applicant referred to a communication that she thought suggested the respondent was tracking her and referred to him driving by and watching the house. The applicant said she tolerated verbal abuse from the respondent and that he regularly insulted her and put her down including criticisms in front of the children and trivialising her medical condition.
The applicant initiated a child support application in 2020 and referred to the 3 unsuccessful appeals by the respondent. The applicant referred to the agreed education of the boys at the Z School and the issues raised by the respondent concerning their continued education at that school for which he only wanted to pay 10% of the school fees. There was an application for child support in relation to school fees in December 2021 by the applicant and the respondent has since been paying half of the educational component only. The applicant has been paying the school account without contribution by the respondent. The respondent didn’t contribute to a laptop for X in December 2022.
The applicant also referred to her support of the sporting activities of the boys. The boys started sports in 2015 and the property at Town D was purchased in 2017 to allow the boys to train and compete. The respondent has made no contribution to the mortgage, start fees, utility and maintenance that is met by the applicant. The applicant explained the 80:20 tenants in common share was because she had the greater income at the time of purchase as the respondent was returning to the UK for work. The respondent also wanted to protect her investment for the future benefit of the children. After separation in February 2019 the respondent ceased all contributions or involvement with the Town D. The rental income has been servicing the expenses and there has been a net loss in the last two financial years. The total expenses paid by the applicant since purchase is $135,509 and the loss for the year ended 2022 was $39,287.22.
The applicant also deposed to the sports competitions for the boys and contentious communications with the respondent about the same, including a proposed Country AA trip in early 2023.
The applicant said X was thriving at the Z School and was devastated when his father suggested that he might not remain at that school. Y has ADHD and an element of ODD and is engaged in morning exercise and training with school sports team and club sports.
The applicant deposed to the respondent being verbally and emotionally abusive and controlling. The applicant deposed to the respondent parking in the cul-de-sac where she lives after separation as well as communications about observing her car at work. The applicant also deposed to accusations of affairs by the respondent and seeing a psychologist in relation to her anxiety. The applicant deposed to controlling behaviour by the respondent in relation to passports and overseas travel. The applicant referred to allegations of drug taking by the respondent that caused her to obtain tests which were negative and attempts by the respondent to adversely affect her career.
The applicant referred to agreement of both parents for the boys to attend the Z School and that the respondent stopped contributing to fees in June 2020 when he left the matrimonial home. In November 2020 the respondent took the boys to see a state school and contested the level of his school fee contribution wanting to pay only 10%. The respondent contributes only to half of the educational component of the boys schooling fess and disbursements which were more than one quarter of the educational component. The applicant referred to the respondent telling Mr Pinkham he couldn’t afford a trip to City BB during his time with the respondent. The respondent makes no contribution to compulsory disbursements and the applicant pays for lunches when the Y is in the respondent’s care. The applicant identified sporting events and the respondent’s failure to attend. The applicant purchased sports equipment for the 2022 season for the boys.
The applicant set out communications sent to the respondent about collecting the children in June 2022 and the unconstructive approach of the respondent to the sports season allegedly being unable to meet the boys training commitments. The respondent ignored a parenting request in September 2022 in relation to Y and not supporting the Country AA trip in early 2023. The respondent has not contributed to the children’s health insurance since 2018 and the applicant has met recent dental and other health costs for the children. The applicant identified her health issues, including one in remission, and the fall injury in early 2020 as well as an underlying condition. The applicant deposed to her health condition restricting her working hours and activities.
Since purchasing together the Suburb E property in 2016 the applicant has lived there with the children and the respondent stopped making any contribution to that property when he left in June 2020. The applicant explained the respondent was contributing less than 50% from February 2019 to June 2020. The applicant identified increased financing costs because of the refusal of the respondent to co-operate and the applicant paying both mortgage principal and interest amounts since separation.
The respondent caused the applicant to pay for his vehicle being a Motor Vehicle 1 since June 2020 until May 2022. The final June payment was made by the applicant. The respondent complained to local police about an alleged breach of lockdown rules by the applicant during COVID19 in June 2021. The respondent also made a complaint about vaccinating the children to the Police in mid-2022. The respondent then made a complaint to the Health Care Complaints Commission about the same topic in mid-2021 against the applicant.
The applicant complained about the respondent using her store credits in September 2021 and incurred costs on a joint telephone account and was difficult about reallocating the applicant’s business mobile number. The respondent also refused to co-operate in relation to signing passports for the boys in late 2021 and maintained an unco-operative approach in March and until August 2022. The applicant also outlined the conduct of the respondent in these proceedings including a failure reimburse costs of the applicant under order 5 Annex A 6 (d) made by this Court on 17 November 2022.
The applicant was cross examined on 15 March 2023 about the respondent’s UK defence force pension and the boys Commonwealth bank accounts. The applicant was asked about her BAS and the au pairs. The applicant said her income will keep its current level. The applicant earns approximately $10,000 – 11,000 per month in her role and about $2,400 per month for her other role. The applicant was cross examined about other possible health care roles and explained that she was not in a position to advance her career. The applicant said she had never worked full time and didn’t want to work after hours and weekends and that her children come first. The applicant said she was not physically or mentally capable of working any more hours. The applicant explained further career prospects would require retraining for seven years full time.
The applicant was asked about her financial statement outgoings and child support. It was suggested that the expenditure was out of control. Reference was made to the impact of X finishing school and the applicant having 100% of his care. The applicant’s pre COVID income was about $171,000 and she did expect it to return to about that level although her income for year ending 2023 was about $150,000. The applicant was asked about renting Town D for about $780 per week and it was suggested her financial positon was not supportable.
The applicant was asked about the refinance and said it was a refinance in both names. The applicant didn’t see her income changing other than slightly. The applicant indicated a willingness to compromise. The au pairs were paid from the joint account.
The respondent assisted with the children occasionally and was of very little assistance in parenting the children. The parties were earning about the same when the applicant was doing health care work. From 2012 the parties were earning about the same and from about 2003. The respondent’s taxable income for 2020 was $210,376. The applicant was asked about the commutation of $110,000 by the respondent and the enrolling of Y in sports of an order about sporting activities. The applicant explained that she had already enrolled the child prior to the order. The applicant was asked about the plan for X to go to Country CC in 2022. The applicant said she didn’t undermine the respondent and offered to swap dates. The applicant was also asked about the respondent’s failure to attend sporting events.
The applicant used an agency to engage the au pairs. The applicant was asked about a text concerning the respondent attending Town D whilst she was there and communications about possibly taking out an AVO. The applicant explained the dates at Town D had to be booked ahead and that she has leased it out subject to the sports season. The applicant was asked about time with the father and sporting activities. The respondent hadn’t booked any time at Town D. The applicant was also asked about communications concerning the children with the respondent and denied the allegations of taking illegal substances. The applicant was also cross examined by the ICL. The applicant explained the credit card was used to pay school bills and that the current debt is about $16,000.
RESPONDENT’S EVIDENCE
The respondent father works in the armed forces and was born in England in 1979. The respondent father asserted that the parties’ commenced cohabitation in the United Kingdom during 2003 and then married in 2004. The parties have two children together, namely X, born in England in 2007 and Y, born in England in 2010. The family moved to Australia from the United Kingdom in 2011.
The respondent father asserted that the parties separated under one roof on 23 February 2019. The respondent father vacated the former matrimonial home located at C Street, Suburb E on 13 June 2020 and now resides in Suburb R with his current partner Ms M and their first child together, S born in 2023. The applicant mother still currently resides with the children in the Suburb E property. The parties also co-own a property in Town D.
The respondent father made reference to the interim parenting orders delivered 2 September 2021 asserting that following the delivery of the orders, the parties were unable to agree on the interpretation of the orders. The respondent father asserts that the applicant mother has refused the children to spend time with the respondent father in accordance with the orders and refused the respondent father access to the Town D property during the sports season. Following the application in a proceeding filed 1 August 2022, Y now spends time with the respondent father in accordance with the orders apart from the sports season during term 3. The respondent father asserted that he has not spent time with X since March 2022. It was stated that the respondent father attends the sporting events of X however, will not approach him at the events.
The respondent father asserted that he was an active participant in the parenting aspects of their relationship, stating that he attended all appointments with the applicant mother during the course of the pregnancy and took six weeks off work following the birth of each child. Whilst the parties had employed an Au Pair to tend to the care of the boys and home whilst the parties were at work, the respondent father asserted that due to his work schedule he was housebound three quarters of the year between work duties and a lot of the parenting responsibilities would fall onto him. The respondent father did not provide detail surrounding what these parenting responsibilities involved. It was asserted by the respondent father that he helped from time to time with the daily chores of the household, however the majority of the household was taken care of by the employed Au Pairs. The respondent father acknowledged that the applicant mother cared for the children well during the years of 2015 and 2017 whilst he was working in the United Kingdom.

The respondent father asserted that post separation, the applicant mother resisted the father’s request to spend time with the children, stating that he has spent time with the boys on six occasions between June and September 2020. It was stated that the respondent father would often communicate to the children via text, social media and telephone calls during this time. The respondent father alleged that the applicant mother would send messages to the respondent father by impersonating the children on their phones. The respondent father maintained that he and the boys have a positive relationship and that the children enjoy spending time with him. It was stated that he would remain involved in the children’s lives by attending compulsory school sport and academic commitments that were available.
In respect of the children’s schooling, the respondent father asserted that the school fees of the Z School for the boys total approximately $80,320 per annum to which he stated was unaffordable for him to pay. The respondent father also asserted that the Z School is located too far geographically for him to get to in order to accommodate school pick up for the boys and that there was no convenient armed forces housing available closer to the school. The respondent father asserted that the parties, specifically the respondent father’s income has significantly decreased following 2015 and that the armed forces no longer pays for the children’s school fees. The respondent father stated that he has conducted research into the DD School to which he desires the boys to be enrolled in and commence their education at in term one of 2024. The respondent father maintained that the Z School has lower fees that he will be able to pay for with his reduced income, but also the school is located closer to his home which provides him the opportunity to spend more time with the children.
In respect of child support, the respondent father asserted that following separation, he was still depositing his entire wage into the joint account with the applicant mother. The respondent father asserts that from 18 April 2019 to 28 May 2020 he has deposited the sum of $144,851 into the joint account. The funds in the joint account were utilised to pay for expenses such as the mortgage, school fees, sports, vehicles, clothing and other needs. During the period of 14 June 2020 to 29 August 2020, the respondent father continued to pay into the joint account and had deposited the amount of $27,505 into that account. The respondent father’s contributions into the joint account decreased in August 2020 to $920 per week as he was now required to pay $820 per week in rent at the Suburb R property. The respondent father asserted that his contributions of $920 per week are more than what the child support assessment would require him to pay. The applicant mother applied for a Child Support assessment on 21 August 2020. The respondent father asserts that he has paid child support in accordance with the assessment however also struggles financially to meet these payment, especially whilst also paying for his youngest son, S that he shares with Ms M.
In respect of financial contributions to the property aspects of the relationship, the respondent father maintained that at the beginning of the parties’ co-habitation in 2003, neither party had significant assets and there were no significant gifts or inheritance during the marriage. The respondent father recounted that he has however received one significant windfall paid by the armed forces in the amount of $110,000 for the completion of his service. The windfall was paid into the parties’ joint account and the respondent father alleges that the applicant mother has transferred the funds without consent into various account, particularly into her own CBA account.
The respondent father asserted that prior to the birth of the children, the applicant mother’s earning capacity could range between $200,000 to potentially $500,000 per annum if night shifts were worked by the applicant mother. The respondent father asserted that following the birth of the boys, the applicant mother reduced her hours however, was still making $194,046 in 2021 and $252,334 in 2022. It was stated that during the time that the respondent father was on exchange in Australia during late 2011 to mid-2015, and then early 2017 to early 2018, the armed forces initially paid for 60% of the children’s school fees for the first six months, followed by 100% of the school fees paid by the armed forces for the remainder of the respondent father’s exchange as well as the family’s utility bills. The respondent father maintained that the armed forces also paid for annual flights to the United Kingdom, totalling $16,000 as well as all medical expenses, inclusive of the applicant mother’s medication and also dental and speech therapy bills for the family. The respondent father asserted that whilst he was in the United Kingdom, he would only retain $500 per month for food and to pay for flights back to Australia and would send the remainder of his wage back to the family in Australia.
The respondent father stated that throughout the marriage, his salary has remained consistent in the sum of $130,000 - $140,000 per annum apart from his exchange periods, where his salary would increase to approximately $250,000 per annum. It was asserted that the respondent father’s current wage is $181,759 per annum, his armed forces pension is $18,000 dependant on the exchange rate and no longer received a duty pay bonus. The respondent father alleged that the applicant mother earnt the amount of $252,334 in 2022 whilst injured and working part time throughout the year. It was asserted by the respondent father that during the relationship, all earnings were paid into a joint account, however the respondent father alleged that the applicant mother since February 2019 has been diverting a significant portion on her wage into a separate CBA account. The respondent father asserted that during September 2019, the parties sought to refinance the mortgage however the respondent father alleged that he did not sign the paperwork because the applicant mother did not disclose to the bank of her intention to divorce the respondent father. It was stated that during early 2020, the applicant mother became injured and during the recovery process, the respondent father paid the entirety of his wage, except for $200-$400 per fortnight into the joint account for tax payment/ lawyer payment purposes.
The father asserted that he currently works full time and accumulates five weeks of annual leave per year. His taxable income for the financial year ending 30 June 2022 was $216,978 inclusive of his Armed Forces Pension. The respondent father asserted that his taxable income for the financial year ending 30 June 2023 will be $181,759 plus a further $17,300 from the Armed Forces Pension. He asserted that he is currently paying the applicant mother $53,636 per annum in Child support whilst also supporting his current partner Ms M, their son S and Y. It was alleged that the mother is declaring an incorrect income amount to the child support agency each year, increasing the child support owed by him to the applicant mother.
The respondent in cross examination referred to making the Z School affordable and paying child support of $1032 per week. The respondent was asked about the issues with X and the need for the applicant to obtain orders in relation to the boys’ passports. The respondent gave evidence about retaining control of at least one of the passports and whether it was to control the applicant. The respondent was asked about his lack of co-operation in relation to the obtaining of the passports. The respondent was also asked about his complaint to the Health Care Complaints Commission and asserted he had no other option.
The respondent denied making a complaint to the police in relation to lock down laws. The respondent said he never phoned the police and then the respondent said that he phoned the police for advice. The respondent admitted that it was a complaint to the police.
The respondent was asked about a relationship show cause workplace notice. The respondent was asked about communications with the applicant. The respondent maintained the Z School was unaffordable and that he had been able to pay what was assessed, which is deducted from his salary. The respondent did not agree that the vaccination of the boys was for their health.
The respondent was asked about his refusal to sign the refinancing and a court order concerning the same. The respondent was asked about his mid-2020 communications with his now partner and denied that the relationship had not progressed earlier, notwithstanding the term of endearment. The respondent maintained they were just very good friend despite use of the term love. The respondent agreed it reflected a level of intimacy and was asked about the transferring of funds in mid-2020 to his now partner as well as a transfer to the person the subject of the show cause notice. It was put to the respondent that he was in a romantic relationship with his now partner in mid-2020.
The respondent disagreed that he had failed to comply with the refinancing order. The respondent did not agree with the assumption by the applicant whilst asleep, that he had come into her bedroom at 1.00am in mid-2019. The respondent was asked about stalking and harassing the applicant and a text showing knowledge of her location. The respondent agreed that an au pair message did not support the respondent’s assertion of another line or two of drugs by the applicant. The respondent disagreed that the breakdown of the marriage was due to his having an affair. The respondent was asked about use of funds from the joint account. The respondent was asked about a failure to respond to communications from the applicant. The respondent was asked about controlling behaviour in relation to not following medical advice for Y.
The respondent disagreed that Town D was purchased for the purpose of the boys sports and said it was an investment property. The respondent said he is currently living in rented accommodation with his partner and new child S. The respondent agreed he receives rental assistance and pays $820 per week in rent.
DIVORCE
In respect to the parties divorce, the relevant legal principles were discussed in paragraphs [26] – [36] in the matter of Coric & Coric [2022] FedCFamC2F 1377. The parties agreed that the marriage had irretrievably broken down and in response to an inquiry by the Court, wished the Court to make a divorce order given that there had been more than 12 months separation.
The Court made orders on 23 May 2023 permitted the filing of an Amended Application seeking a divorce order under Part VI of the Act and dispensing with any other requirements under the rules and waiving any additional fees that might otherwise have been required. A marriage certificate of the parties dated 2004 was admitted into evidence and marked Exhibit R.
This is a case where it is in the interests of the administration of justice and finality to bring all potential litigation between the parties to an end. Whilst it is the case that s79 orders may be made without a divorce order, both parties were desirous of the Court making appropriate orders to facilitate the making of a divorce order. The Court is satisfied that there is evidence of the marriage of the parties, that they there has been more than 12 months separation and that the marriage has irretrievably broken down and an application under Part VI has been instituted by the amended application. Accordingly the requirements of s48 are met and a divorce order should be made and will take effect in accordance with s55(1)(a). The Court is satisfied that here are satisfactory arrangements for the two children and will so declare under s55A.
PROPERTY – THE LEGAL PRINCIPLES
In respect to the parties dispute regarding the division of their property these proceedings, s 79 of the Act sets out the following:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(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.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties property the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the Court to consider the matters set out in section 79(4) of the Act.
In the leading case of Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143, the Full Court held at [39] that, in considering the matters set out in section 79 (4) of the Act the preferred approach was to adhere to the following four steps:
(a)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(b)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(c)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(d)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
That approach had been endorsed many times: see, for example, Manolis v Manolis (No 2) [2011] FamCAFC 105 at [63] (per Coleman, May and Ainslie-Wallace JJ); Kildea v Kildea (2007) 38 Fam LR 347 at [104] (per Finn, May and Boland JJ); C & C (2005) FLC 93-220 at [22] (per Bryant CJ, Finn and Coleman JJ) and [142] (per O’Ryan J). However, as the High Court noted at [35] in Stanford, s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, ‘unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’. Accordingly, since Stanford, it has generally been the practice of the Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.
The Full Court in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer (2015) FLC 98-067 at [44]:
Within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach".(Citations omitted)
CONTRIBUTIONS
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In [29] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
The Balance Sheet

Ownership	Description		Applicant Wife’s Value		Respondent Husband’s Value		Courts Determination
ASSETS
J	C Street, Suburb E (joint tenants)50:50		$2,600,000		$E3,300,000		$3,300,000
J	B Street, Town D		$685,000		$685,000		$685,000
SUB-TOTAL	$3,285,000		$3,985,000		$3,985,000
LIABILITIES
J	G Bank Home Loan Account ending #...39 for Suburb E Property secured by mortgage		$1,108,578		$1,108,578		$1,108,578
J	G Bank Home Loan Account ending #...87 for B Street, Town D- secured on Suburb E mortgage		$404,080		$404,080		$404,080
W	Credit Card		$16,872		$16,872		$16,872
W	Wife’s 2023 Tax Liability		$32,000		NIL		$32,000
H	Income Tax Unpaid 2022		$5,324		$5,324		$5,324
H	Credit Card		$2,447.20		$2,447.20		$2447.20
SUB-TOTAL	$1,569,301		$1,537,301		$1,569,301
SUB-NET ASSETS			$1,715,699		$2,447,699		$2,415,699
SUPERANNUATION/ PENSION
Member	Name of Fund	Type of Interest		Applicant’s Value		Respondent’s Value	Courts Determination
W	Super Fund 1	Accumulation		$274,654		$274,654	$274,654
W	Super Fund 2	Pension Scheme		$17,845.92		$17,845.92	$17,845.92
H	Armed Forces Pension Scheme	Pension Scheme		$593,736.35		$0.00	$0
H	Armed Forces Pension Scheme	Pension Scheme		$58,899		$0.00	$0
H	Armed Forces Superannuation	Accumulation		$155,832.70		$155,833	$155,832.70
SUB TOTAL	$1,100,967.97		$448,333	$448,332.62
NET ASSETS INCLUDING SUPERANNUATION AND PENSION				$2,816,667		$2,896,032	$2368334.40

SUBMISSIONS

Mr Blackah of counsel on behalf of the applicant submitted that the Court should accept the valuation evidence of Ms H in preference to that of Mr EE. Mr Blackah referred to the concessions made by Ms H as supporting her credibility and that her movement to a slightly higher current market value for the Suburb E property should be accepted. Mr Blackah submitted that comparables used by Mr EE placed too much weight on the Suburb E area and that property in question was inferior because of noise, mould, less attractive position, parking limitations, and other faults. Mr Blackah submitted that both experts used the same comparison valuation method and that the Court should prefer the expert evidence of Ms H as to valuation.
Mr Blackah took the Court to the balance sheet identifying a substantial degree of agreement including upon the formerly disputed Town D property. Mr Blackah sought an order for transfer of the Town D property which is in fact unencumbered by a mortgage to the applicant. At law that property is in a 80:20 ownership with the applicant holding the greater interest. Mr Blackah submitted that the respondent’s UK pension valued at about $630,000 should be treated as an asset and not as a financial resource and that setting that asset off against the Town D property would be appropriate. On the agreed valuation the Town D property is worth $685,000 and given its purchase in 2017 for $480,000 and its rental investment use there would be a GST tax applicable.
Mr Blackah sought sale of the Suburb E property within 120 days by private treaty and the mechanism for sale was agreed. Mr Blackah sought a 60:40 split of the net proceeds in the applicant’s favour. Mr Blackah also pointed out that in addition to the current value evidence of the UK pension it capable of being commuted in part when the respondent reaches the age of 55. Ms Blackah submitted that this was a case where there should be a Kennon adjustment in favour of the applicant and that it was not now necessary for any medical evidence in making that assessment. Mr Blackah submitted that the contributions of the applicant had been made harder by the controlling behaviour of the respondent.
Ms Druitt supported the sale of the Suburb E property. Ms Druitt submitted that the Court should prefer the expert evidence of Mr EE as to the value of the Suburb E property. Ms Druitt submitted that the wife’s credit card debts were not debts of the marriage and made the same submission in relation to both parties’ tax liabilities. Ms Druitt submitted that the UK pension had an initial 5 year accumulation prior to the relationship and that it was not and could not be treated as an asset. Ms Druitt advanced the submission that the UK pension was not property and submitted that it would be an error to treat the same as an asset in the property pool. Ms Druitt submitted that the UK pension was simply a financial resource and as the Court had no jurisdiction to make a splitting order and as no splitting order was sought it should merely be treated as a financial resource providing $365.30 per week to the respondent. Ms Druitt referred to authorities which she submitted supported that the UK pension should not be treated as an asset.
Ms Druitt of counsel for the respondent submitted that the homemaker contributions prior to physical separation in 2020 were equal. Ms Druitt submitted that the applicant had a greater income earning capacity and that the applicant was capable of generating a greater income. Ms Druitt referred to the applicant’s evidence that she expected her income to return to a pre-COVID level in the future. Ms Druitt submitted that the respondent had assisted the applicant in her career and that it was an agreed position that the applicant forewent further training as a health care worker. Ms Druitt submitted that the property pool as a whole should be the subject of a 52:48 split in favour of the applicant.
Ms Druitt stated that the respondent did consent to the Town D property being transferred to the applicant, however this consent was conditional upon the whole of the agreed value of that property being taken into account in respect of the whole of the property pool in any adjustment order. It was submitted that the UK pension was not an asset that could be taken into account against the same and that if that property was so transferred the full value of that property should be placed back into the property pool in relation to the % split and that this would result in a % to the applicant in respect of the sale of the Suburb E property of about 26:64 in favour of the respondent.
Ms Druitt submitted it would be an error to treat the Town D property as having any value other than the agreed value and that the % split should be determined on the whole of the property pool only. Ms Druitt submitted that the legal title being 80:20 became irrelevant once treated as an asset in the net pool at the agreed value. In summary the effect of Ms Druitt’s submission, if the Town D property was to be transferred to the applicant, was that the Town D property should be treated as an add back in favour of the respondent in determining the ultimate adjustments, percentage and what is just an equitable in respect of the net asset pool.
Ms Druitt went through each of the s75 (2) factors and in particular that X would soon be 18 years of age in about 18 months and that Y had now equal time. Ms Druitt referred to the agreed parenting orders for equal sharing of the two children’s school fees, although this may be implied, it was not expressed. The Court took into account the father’s new born child, S, and current dependence upon him of his new partner. Ms Druitt referred to the Child Support currently being paid and the likelihood of reduction to about $116 per week by the Child Support Agency in light of the agreed final parenting orders. Ms Druitt referred to the applicant’s financial statement and submitted that the applicant has a greater income. Ms Druitt submitted that there had been a level on non-disclosure by the applicant in relation to her financial position. Ms Druitt referred to the applicant’s medical condition and possible reduction of life expectancy. Ms Druitt submitted that the possibility of the respondent’s future career outside the armed forces was not explored and that no finding on the same was open on the evidence.
Both Mr Blackah and Ms Druitt supported the making of a divorce order and the Court made orders to facilitate the filing of an amended application seeking a divorce order and otherwise dispensing with the requirements of the rules and waiving any filing fees as well as the filing of a copy of the marriage certificate which the Court marked Exhibit R.
As referred to above the respondent provided an aide memoire on 2 June 2023 and requested an opportunity to put further oral submissions. The Court received the applicant’s aide memorie on 9 June 2023. The Court received further oral submissions on 17 July 2023. The Court received in Court further written submissions from the respondent as to characterisation of the Armed Forces pension in 2013.
On 17 July 2023 in response to concern by the Court as to existing legal position versus the respondent’s proposal, Ms Druitt submitted that legal position should not be given much weight in exercising the power under s79 and that the parties had effectively contributed equally to the Town D property prior to separation. Whilst acknowledging that the respondent had met the outgoings after separation and had the use of the same, it was submitted that legal title was for tax reasons and that the property borrowing was secured by the matrimonial home. This meant that the respondent has contributed by sharing the mortgage and other costs prior to separation and by the provision of the joint matrimonial home as security. It was also the case that the debt over that property was being treated equally. Ms Druitt also pointed out the Town D property was a financial resource given the ability to rent out the same when not being used by the mother or children.
Mr Blackah submitted that the applicant had carried the whole of the financial costs including the loan debt on the matrimonial property since separation. Mr Blackah pointed that this was primarily a property to benefit the children and used for their recreation and sporting activities.
Applicant’s Aide Memoire Table

Proposed Property Division for Suburb E proceeds 60% (applicant)/ 40% (respondent) Assuming Applicant retains Town D and Respondent retains UK pension
Applicant		Respondent
ASSETS	Amount Received	ASSETS	Amount Received
Suburb E Proceeds at $3,300,000	$1,012,640	Suburb E Proceeds at $3,300,000	$675,093
Suburb E Proceeds at $2,600,000	$592,405	Suburb E Proceeds at $2,600,000	$394,936
Town D	$685,000	Town D	$0
UK Pension	$0	UK Pension	$652,635
TOTAL VALUE if Suburb E Sells for $3,300,00	$ 1,697,649	TOTAL VALUE if Suburb E Sells for $3,300,00	$1,327,728
Overall % Of Net Property Pool	56%	Overall % Of Net Property Pool	44%
TOTAL VALUE if Suburb E Sells for $2,600,00	$1,277,405	TOTAL VALUE if Suburb E Sells for $2,600,00	$1,047,571
Overall % Of Net Property Pool	54%	Overall % Of Net Property Pool	46%

Respondent’s Aide Memoire Table

Joint (non-super) Property Pool (Major Assets & Liabilities Only)
ASSETS		LIABILITIES
Description	Value	Description	Value
C Street Suburb E	$3,300,000	G Bank Home Loan #...39	$1,108,578
B Street, Town D	$685,000	G Bank Home Loan #...87	$404,080
TOTAL	$3,985,000	TOTAL	$1,512,658
Net Property Pool Value	$2,472,342
Less Suburb E Selling Costs	$100,000
Net of Selling Costs	$2,372,342
Proposed Property Division
Applicant		Respondent
Asset	Amount Received	Asset	Amount Received
Suburb E Sale Proceeds	$548,617.84	Suburb E Sale Proceeds	$1,138,724.16
C Street Town D	$685,000	-	-
TOTAL VALUE	$1,233,617.84	TOTAL VALUE	$1,138,724.16
% of Net Property Pool	52%	% of Net Property Pool	48%
In order to achieve a total (non-super) property division of 52% to the Applicant Wife, and 48% to the Respondent Husband, noting that the applicant has elected to retain Town D in lieu of Cash from Suburb E Sale Proceeds, the following % division of Suburb E sale proceeds must be applied.
Suburb E Value	$3,300,000
Less 2 Mortgages	$1,512,658
Less Est Selling Costs	$100,000
NET VALUE	$1,687,342
Applicant Wife’s % of Suburb E	33%	*excludes value of Town D in lieu of Cash from Sale
Respondent Husband’s % of Suburb E	67%

FINDINGS AND CONCLUSIONS

For the reasons addressed below the Court finds, for the purpose of the first of the four steps that the net assets of the parties as at the date of hearing are $2,415,699 as identified in the above balance sheet column of Court findings. The Court notes that in fact a further potential $100,000 is likely to be incurred in the sale of the Suburb E property.
In summary as to the three alleged assets in dispute the Court finds the value of Suburb E is $3,300,000 and Town D had an agreed value of $685,000. The Court finds that the Armed Forces Pension is not an asset and that the present value of the managed, UK armed forces pensions should not be included in the assets of the parties, but should be treated as financial resources of the respondent. In summary as to the two liabilities in dispute the Court accepts that the applicant’s estimated tax debt for 2023 and credit card should be included in the liabilities of the parties. The Court however accepts that for the purpose of the net pool the only major liabilities are the two loans security on Suburb E and accepts the view implicit in the applicant and respondent’s aid memoire that it is only those major liabilities that should be taken into account. The Court accepts that separate pool of superannuation and UK pensions should be taken into account as future financial resources.
The Court accepts, as contended by the respondent, that the UK armed forces pensions must be treated as a financial resource and should not be treated as an asset in the balance sheet. This is not because no splitting order is sought. It was common ground that the Court could not make a splitting order binding under English law for want of jurisdiction in respect of the two UK pension amounts. The failure to seek a splitting order in these circumstances is of no significance in determining how to treat the two UK pension amounts.
The Court accepts the breadth of meaning of “property” in s79 however the evidence of a present day value for the two UK pensions is not an actual capitalised sum that can be received by the respondent or that can be alienated. Nor on the evidence can the capitalised sums be commuted. Nor do the capitalised sums remain applicable as the precise amounts even if a pension sharing order were to be made in the UK as the calculations must be redone. Accordingly these two pensions should not be treated as property in the balance sheet in the amount of the present day value based on the day specific Cash Equivalent Value.
The foundation for the estimated tax debt of the applicant was supported in the evidence and it is reasonable to include the same in the liabilities. The credit card debt was not double counting because of payments for the term fees made by the respondent. The respondent has essentially been contributing to the term fees but only little of other school expenses. The liability has been reasonably incurred by the applicant, is not double counting but ultimately the Court has focused only on the major liabilities in relation to the net pool as advanced by the parties.
The Court finds it is just and equitable to make an order altering the interests of the parties in the property of the parties.
The Court heard evidence from both the applicant and respondent. After indication by the Court as to the very limited apparent relevance of the au pair affidavit evidence there was no cross examination of those deponents. The Court does not regard the au pair evidence as assisting on the factual findings to be made in relation to the property issues. The applicant mother gave evidence about the homemaker contributions during the marriage, the breakdown of the relationship and on-going parenting issues as well as financial contributions.
The mother presented as an impressive and reliable witness. It is not necessary to make factual findings on all the issues addressed in the parties’ affidavits. However in respect of the financial and non-financial contributions made by the mother, and the more limited non-financial contributions by the father, the Court prefers the mother’s evidence.
The mother did identify incidents in relation to passports, Country CC, Town FF, schooling and some communications from the respondent that can be characterised as controlling conduct. The Court does not accept that the mother was seeking to impair the relationship with the children or making inappropriate communications to the children. The Court does not accept that there was any lack of parental responsibility by the mother in her care and attention given to the children. In the middle of a pandemic there can be no criticism of the steps taken by the mother to protect her children. The Court does not accept that the mother acted unreasonably in the parenting steps challenged in her evidence. The court accepts the mother’s evidence as to the failure of the father properly attend to medical and dental appointments for the children and finds that the father’s position on medication for Y was controlling behaviour. The Court finds that the father’s earlier positon on the need for change of schooling was not justifiable on fiscal grounds and again was controlling behaviour.
The Court makes no finding concerning the mother’s assumption whilst sleeping as to activating her mobile location app, but this does not impact adversely on the credit of the applicant who the Court finds was the more credible witness. The Court makes not finding concerning the assumption as to withholding council rate notices. The Court finds that there were some small contribution to expenses by the respondent through the joint account, by providing some lunch monies and some clothing expenses as well as through use of the joint account to which the respondent contributed until shortly after physical separation in September 2020.
The father’s evidence was generally less reliable than that of the mother. The father gave unsatisfactory evidence about loans from family and friends, his reasons for the professional complaint, the complaint to the police and reasoning about his decision making about Country CC, Town FF and passports as well as on the circumstances and timing concerning the commencement of the relationship with his now partner. The respondent’s evidence as to his inability to meet the school fees was also unreliable and reflected controlling behaviour.
The au pair evidence was of little value given the limited time periods involved and the far more valuable direct evidence about contributions from the mother and the father. The au pair evidence is objectionable in many respects and the Court indicated it would not formerly rule on the objections taken but would take the form into account in weight. Whilst there were some emails by the respondent with au pairs the Court was not persuaded that the limited and selective historical observations by au pairs unsupported by contemporaneous records were of significant relevance given the detailed affidavit evidence of the parties. There were many generalised assertions of an inadmissible kind for want of foundation, conclusions and in instances want of qualification. The high level observations by au pairs did assist the Court in determining the contributions as between the applicant and the respondent throughout the marriage. The Court finds the au pair evidence of no real assistance in determining the issues in this case and to the extent that the parties were cross examined upon the same it did not assist the Court in the credibility issues raised between the applicant and the respondent.
Ms H was an unimpressive expert witness, Ms H conceded exaggeration her evidence about mould, conceded that there were comparable properties she should have included, conceded that there was a comparable property she should not have included, changed her evidence on value and failed to comply with a Court direction to ignore her commercial data base whilst giving evidence.
Ms H gave unsatisfactory evidence about property demand by purchasers relying on word of mouth of other agents and did not take into account data available on the realestate.com.au site as to interested purchasers. Ms H treated the property as being almost 100sq/m smaller and her explanation that this is what valuers do was unpersuasive. Ms H was argumentative and unresponsive in her evidence. Ms H volunteered observations about noise that were not in her report and her observations as to other noise concerning alleged comparables by another expert were unsatisfactory. Ms H gave an improvements value of approximately $700,000 but failed to even identify the land tax value in support of her alleged valuation. The Court does not accept that Ms H applied the willing but not anxious purchaser and willing but not anxious vendor test in determining the current market value as at the date of her report, but rather has given evidence derived from an in house commercial data base for the Suburb E area that was not put into evidence. Ms H agreed that there was a comparable that she should not have taken into account.
Ms H’s evidence as to the market recently improving and shifting her valuation in the witness box to an higher amount was undermined by her initial adherence to a value that she no longer supported in the end of her cross examination. The Court does not accept the valuation evidence of Ms H as being reliable, accurate or persuasive. The Court rejects Ms H’s evidence as to the market value.

Exhibit C includes a letter for the Ministry of Defence, UK, dated early 2023 that refers to the Armed Forces Pension Scheme for the respondent and refers to a request for a full valuation of the benefits. There is attached a statement of pension benefits assessed as a cash equivalent value apparently pursuant to a UK regulation concerning pensions on divorce. The letter explains the difficulty due to legislation that it is not possible to value the benefits beyond the current date which was early 2023. It is explained that the Cash Equivalent Value is an estimate and would under the regulations differ from the amount when a Pension Sharing Order (UK) is made and is also derived from the date of the decree absolute. The attached statement of accrued benefits refers to the regulations and the Armed Forces Pension Schemes administrator’s having prepared a Cash Equivalent Value and that assumptions have been made for pension sharing purposes. There is a table that says as to the type of member “Accrued Rights: Pension Payment”. The type of scheme is described as unfunded public sector salary-related. The Scheme started in 1999 and the valuation date is given of early 2023. The statement identifies an annual pension in payment of Sterling 10,023.27 and a lesser Survivor benefits payable on death of Sterling 6,621.66. The Cash Equivalent Value of above retirement benefits is said to be Sterling 314,943.24. There is another smaller type of member Regular : Deferred Pension with a scheme start date of 2015 and a valuation date of early 2023 which then says Annual Pension paid at State Pension Age Sterling 3213.93 and survivor benefits payable upon death of Sterling 2081.35 and a Cash Equivalent value of Sterling 31,242.56. There is an important notice identifying the manner of calculation under the regulations, need for recalculating for pension sharing. The notice states that it is an estimate only, should not be relied upon “as the precise amounts pension sharing purposes” and that it will change in line with significant dates. The notice records that the previous dates are unenforceable and cannot be implemented. The statements of Cash Equivalent Value also have reference to the Armed Forces Pension Scheme Act 1975 (UK), with an acronym of AFPS 1 or the type of member pension in payment and AFPS 2 for the type of member deferred pension.
The respondent’s financial statement dated 14 April 2023 identifies that he is in receipt of pension scheme of E365.3 but does not attribute an asset value to the same. In understanding the nature form and characteristics of these two UK armed forces pensions the respondent says they should be characterised as a financial resource, referring to Preston & Preston [2022] FedCFamC1A 157 and Carron & Laniga [2019] FamCAFC115. It was submitted by the respondent that the UK pensions must be treated as an income stream or financial resource rather than a capital asset.
There was also tendered a letter from the Armed Forces UK dated late 2020 that provided the same payment details for the type of member pension in payment but a slightly higher Cash Equivalent Value of Sterling 323,710.98. There was also a statement for the type of member Deferred pension which was similar in amounts. The respondent’s service was from 1999 to 2018 with cohabitation in UK commencing in 2003, married in 2004 and separated under one roof on 23 February 2019. The respondent says his pension is approximately $18,000 before tax per annum and is affected by exchange rate. The affidavit also describes ‘my [Armed Forces] Pension” which appears to be the UK pension in payment as providing $17,300 which was include in the taxable income for both 2021/2022 and 2022/2023
There was also tendered in Exhibit F the publication Pension benefits on Divorce and Dissolution of Civic Partnerships. This document refers to the UK Courts having power to take into account the armed forces pension in divorce or dissolution settlements and refers to options available. There is an identified option of offsetting in which the value of the pension is offset against other assets belonging to the couple. There is an option of a Pension Sharing Order under which some or all of the member’s pension is transferred. There is an Attachment Order option requiring payment to be made. There is an Earmarking Option available only in the UK. There is a reference to a power for a member to commute to a lump sum which appears to require a retirement commutation step by the member. It also appears that the Pension sharing Order for AFPS 1 requires an entitlement to a pension lump sum by the former spouse or civil partner. The Information for the Pension Scheme Member explains how to request a valuation. The Cash Equivalent Valuation is said to generally be valid for one year. The document identifies the steps for a pension sharing order. For AFPS 2 the pension is based on rank at retirement and number of years of reckonable service. The Legal Representatives information records that the pension benefits can’t be assigned by reason of the Armed Forces Act 2006 (c.52) and that payments to a former spouse can only be made by a pension sharing order, attachment order or earmarking order. The terms used in the guide refer to the Cash Equivalent Value (CEV) as being a valuation of the scheme member’s benefits for divorce or dissolution.
There is an email from a DBS Pension Supervisor dated May 2023 that contends you cannot “use” the Cash Equivalent Value because the pension scheme is a defined benefit scheme and that no lump sum payment can be made as the pension is already in payment and a lump sum has already been paid.
Preston & Preston is distinguishable as in this case the wife has sought to have the UK armed forces pensions included as an asset at the Cash Equivalent Value, but it is the case that this Court has no power to make a pension sharing order under the UK scheme. The Court finds the pension cannot be liquidated as an asset, but it is not one dependent on future review of medical condition as in Preston. The pension is not medical condition dependent as was the case in Preston, as this Court has no power to make a splitting order under Part VIIIB the comments about not seeking a splitting order in Preston seem to have no application to this case. The pension on the evidence before this Court cannot be commuted or alienated. It is a right on one view falling within the description in Preston as being entirely person to the respondent husband albeit not dependent on medical unfitness. In Preston is that there was a finding that the armed forces pension at its capitalised value was not and never would be available for use as that capitalised sum. Strictly the Cash Equivalent Value as a precise capitalised sum would never be received for use by the respondent, cannot be alienated and cannot be assigned. In these circumstances this Court considers that it is bound by the reasoning in Preston to hold that the armed forces pension must be treated as a financial resource and not as an asset. This is also consistent with Carron & Lainga at [36], [39]. The pension in payment AFPS 1 is a continuing income stream of about $17,300 per annum on which respondent, given his tax returns is probably paying tax at the highest bracket. This makes the pension a modest income stream that is not enough to sustain him and will need to be supplemented during his working career with other income from paid work. The pension AFPS 2 on the evidence does not appear to be in payment and appears to be a modest unalienable future financial resource of a much more modest kind again on which tax at the highest bracket is likely to be payable when this pension becomes in payment.
The decision in Gresham & Gresham No 2 (2023) FedCFamC1F 51 turned on its own facts, the expert evidence, the terms of the particular pension scheme, the parties appear to have agreed to a lump sum value (albeit described as artificial if not illusory) and the concession by the pension holder. There is no statement of principle in Gresham that binds this Court or that permits this Court to distinguish the reasoning in Preston by which this Court is bound.
The Court would however add that there is considerable sense in the in personam power approach adopted by the learned Altobelli J to compel application or enforcement of the Australian Court’s pension splitting orders. All the more so when it is apparent, as in this case, that had there been divorce proceedings in the England then the relevant UK Court could have made pension sharing orders. No such in personam orders were sought in this case. The Court adds that the in personam order approach is not as secure or satisfactory as orders that bind the trustee or administrator of the relevant pension scheme. There is a comity power in s 29 of the Bankruptcy Act 1966 (Cth) that permits a request to an external Court in aid of and auxiliary to a bankruptcy matter, which this Court has successfully done in a bankruptcy matter. It is not immediately apparent why a similar provision should not be enacted by Parliament in aid of and auxiliary to this Court’s matrimonial and de facto property jurisdiction for external Courts. Section 47 of the Family Law Act 1975 (Cth) however does not catch external Courts.
The respondent’s entitlement under the UK armed forces pensions will be taken into account in the factors that arise for consideration under s 75(2). The Court finds it is just and equitable to make an order altering the interests of the parties in the property of the parties.
Turning to the second step in the alteration of property interests the Court finds that the applicant has provided both greater financial contribution and greater non-financial contribution to the matrimonial property of the parties In percentage terms the Court assesses the overall contributions under s79(4)(a), 9b), and (c) to be in favour of the applicant. The Court is satisfied the proposed orders of the Court do not adversely affect the earning capacity of either party within s79(4)(d0.
The respondent seeks a 52% to 48% split in favour of the applicant and says that the wife should receive the Town D property plus 33% of the sale proceeds of Suburb E and the respondent should receive 67% of the sale proceeds. The respondent put further submissions in relation to the treatment of the UK armed forces pensions as a financial resource and noted that the applicant’s asset of super is $118,821 more than the respondent. The pension payment was identified to be about $18,900 per annum being approximately $365 per week, would be taxed at the rate of 47.5%, is subject to exchange movements in AUD and GBP, cannot be split and cannot be commuted.
The schedule for the respondent sale value for Suburb E of $3,300,000 then deducting $100,000 for sale costs and deducting for the mortgagee $1,512,658 leaving a net value $1,687,342. The schedule contended for the net proceeds of sale for Suburb E to be split 33% to the applicant and 67% to the respondent. In dollar terms the 67% reflects $1,130,519 to the respondent and $556,822 to the applicant wife.
At law on an asset by asset approach for these two assets, Suburb E net proceeds after payment of the mortgagee of $1,512,658 and sale costs of $100,000 means that the amount of $1,687,342 would be split 50:50. This means at law the application has a net interest in Suburb E of $843,671 and the respondent’s net interest in Suburb E is $843,671. Turning to the Town D asset, the loan debt for which is secured on Suburb E, the asset of $685,000 is owned 80:20. This means at law the applicant has an 80% interest in Town D of $548,000 and the respondent has a 20% interest in Town D of $137,000. So with no property adjustment, for these two assets under s 79, the applicant at law has a net interest of $1,391, 671. With no property adjustment for these two assets under s79 the respondent at law has a net interest of $980,671.
The at law interest in Town D does not take into account the nature of the asset by reason of being exposed to Capital Gains Tax if realised as an asset. The Court considers that this nature of the asset as being an investment property exposed in future sale to CGT should be taken into account in identifying the at law position. Given that the asset was purchased in 2017 for $480,000 there has been a notional capital growth of $205,000 and allowing for a discount of 50%, unless indexation was more attractive, the applicant being an Australian citizen in 2016 means that it is only approximately $102,500 that might be treated as capital gains tax assessable and the applicant owner, whether 80% owner or 100% owner would be likely to be in the highest income bracket. There is no evidence about capital losses and obviously the transfer by a s79 order between the parties does not crystallise a liability for CGT by either party. The Court has however taken into account the nature of this investment asset being the future potential CGT liability if realised as well as being an income earning investment property when not in use by the owner. The only liability in relation to this investment asset is the related borrowing secured on Suburb E. There was no other liability asserted by the parties.
The respondent does not oppose a s 79 order for the transfer of Town D to the applicant but seeks adjustment of property split for Suburb E, not by reference to the respondent’s 20 % interest at law of $137,000 but by treating Town D as if a 50:50 owned property on a type of global asset approach. This global type approach treats the respondent as an equal co-owner of Town D with a notional interest of $342,500 and the respondent then identifies a net property pool of $2,372,342 to be adjusted 52% to the applicant and 48% to the respondent.
The respondent’s 52% allocation for the applicant of the two major assets treated in this way amounts to $1,233,617.84 which is a reduction of the applicant’s at law interest, before any s79 order, in the amount of $158,053. Equally the respondent’s treatment of the Town D property as if an equally owned asset with a 48% allocation amounts to $1,138,724, which is an increase of the respondent’s at law interest before any s79 order, in the amount of $158,053.
This shows the unfairness to the applicant that would flow from a global approach to these two major assets that affectively swells the net property pool in favour of the respondent, from the at law position, before applying whatever adjustment the Court determines is appropriate. The unfairness of an order for a 33% allocation to the applicant and 67% to the respondent gives the respondent, the potential for a further disproportionate enrichment if the proceeds of sale exceed the agreed value for Suburb E.
To transfer the respondent’s 20% interest to the applicant in the Town D property requires the making of an order under s 79 and requires an adjustment of the parties interests in the application of the other major asset being Suburb E. The Court accepts the respondent’s submission that the respondent has directly and indirectly contributed to this asset by contributing to the loan payments albeit for a quite limited period and by providing the matrimonial home as security for the acquisition. The contribution of the respondent to this property can be fairly assessed as being in the order of 40%.
The Court considers the non-financial homemaker contributions of the applicant to be greater than that of the respondent. In percentage terms before adjustments the Court finds that the applicant’s wife’s combined financial and non-financial contributions to the property of the parties, excluding Town D, are in the order of 55% and the respondent’s in the order of 45%.
The Court finds that the respondent has a greater income earning capacity than the applicant and accepts the applicant’s evidence as to her future working wife curtailment due to illness as well as her evidence rejecting the respondent’s assertions of more remunerative opportunities. The Court finds the applicant has been working to her full income earning capacity and although acknowledging some potential for some growth finds that the respondent has had and continues to have a greater income earning capacity.
The Court also finds that the applicant’s future needs in looking after the children living with her requires adjustment in her favour as does the greater potential financial resources of the respondent from in particular the significant UK pension . The Court has taken into account that the respondent has a new family and that the applicant has a modest financial resource from renting Town D.
The respondent in the proposed schedule seeks to bring into account the full value of the Town D property in applicant’s 52% share of the net pool of the two major assets by treating the full value of Town D as part of $1,233,617 value allocated to the applicant, so that the balance from the sale of Suburb E to which the applicant would be entitled is $548,617. The respondent’s second schedule then seeks to ascribe a percentage adjustment of the Suburb E property based on the two major assets, with the transfer of Town D to the applicant, as being 33% of net property pool of $2,372,342 reflecting an amount of $548,617 and 67% of the net property pool of $2,372,342 reflecting the amount of $1,138,724. This reflects as explained about a decrease of the applicant’s at law interest of $158,053 and an increase of the respondent’s at law interest of $158,053. Far from reflecting an adjustment in favour of the applicant this proposal of 52:48 on the two major pool assets by the respondent reflects an unfair reduction of the applicant’s at law interest.
Taking into account the at law net interest in these two assets, and the transfer of the respondent’s 20% interest in Town D of $137,000, the at law interest of the applicant wife has increased to $1,665,671 and the respondent’s net interest has reduced to $843,671.
The applicant contributed indirectly to the Armed Forces Pension financial resource of the respondent by her greater nonfinancial contributions as homemaker and primary caring parent from 2004 to 2018. The Court accepts the respondent’s submission that about $100,000 of the Cash Equivalent Value for the pension albeit not an asset was probably derived before the applicant’s contributions. The Court finds that the smaller pension albeit not an asset, was derived during the marriage and was contributed to by the applicant in her contributions as homemaker and primary caring parent. The Court finds that these contributions by the wife to these two sources of financial resources of the respondent father were substantial and significant.
The wife’s pension entitlement has been derived whilst working in Australia and unlike the father’s UK pensions the Court does not accept that the father has made any significant contribution to this asset of the wife. Whilst the father undertook some homemaker duties they were not of a kind that materially contributed to the generation of the wife’s superannuation.
The applicant also has made greater post separation contributions both financially and in non-financial contributions in looking after the welfare, health and education of the children. The Court assesses the overall contributions by the applicant to be greater than that of the respondent. The Court finds that the contributions of the applicant to the property of the parties supports a 55% alteration of interest in relation to Suburb E after payment of the major liabilities in the applicants favour and a 45% interest to the respondent. The differing assessment of contribution between Town D and Suburb E also supports treating these assets separately in the final determination of the s 79 alteration of interests.
Turning to the third step in assessing the future and need for adjustment the Court finds that the respondent has the greater income earning capacity and that the applicant‘s future earning capacity is further diminished by her health and likely curtailed future working career due to her health. The applicant is still looking after X full time and that is likely to remain the position as submitted by the applicant until he is 18. The respondent has parental obligations to his new son S whose needs will increase.

In relation to s 75(2)(a) the applicant is year 45 of age and has a number of health issues that will impact on her future earing capacity and her longevity. The respondent has no significant health issues and is aged 44.
In relations to s 75(2)(b) the Court finds the property of the parties is as identified in the above balance sheet. The Court takes into account the Armed Forces Pension as a significant resource likely to be available to the respondent and to which as the Court has found the applicant contributed. The Court has taken into account the superannuation of the applicant, which is more than that of the respondent and potential for the applicant to derive income in the future from the Town D property that will be transferred to the applicant.
The Court finds that the respondent has a greater income earning capacity and that the applicant’s future earning capacity is likely to be curtailed in duration and likely to diminish because of her health issues. The applicant receives approximately $3000 per week wages before tax and about $780 per week for Town D when let out. The respondent receives approximately $3885.79 per week before tax.
In relation to s 75(2) (c) the parties are sharing equal responsibility for X and Y albeit with the applicant having sole responsibility for medical and dental decisions. The Court finds X is likely to remain 100% of the time with the applicant due to his own wishes until 18 which is less than 2 years away.
In relation to s 75(2)(d) the parties have parental obligations to both X and Y with it likely that X will remain living full time with the applicant until 18 and Y will spend half of his time with both parents. The respondent has a new partner and a new child. Both parties are currently able to keep working to support themselves and their two children. The respondent, currently receives rental assistance and pays $820 per week in rent is able to continue to meet his commitments to his new child S. The Court finds that the respondent is able to continue to afford his half contribution to the Z School tuition fees for the two boys which he has been meeting though child support payments and that the parties have agreed to orders as to continuation at that school by both boys.
In relation to s 75(2)(e) the parties have ongoing responsibilities as parents and under the parenting orders made in relation to their two children. The respondent has parenting responsibilities to his new son S.
In relation to s 75(2)(f) the respondent is in receipt of rental assistance and receives a UK pension scheme amount of approximately $365.30 per week. The applicant has the benefit of a pension scheme valued at $17,845. Both parties have superannuation in the amount identified in the above balance sheet and the respondent has the benefit of the Armed Forces Pension scheme 1, with very substantial likely future benefits and the Armed Forces Pension scheme 2 with a modest likely future benefits, however no accurate value can be place on either scheme.
In relation to s 75(2)(g) the Court is pronouncing a divorce order and has taken into account the standard of living that the applicant has been enjoying in the family home looking after the two boys and that the respondent is living in rental accommodation. The Court is satisfied that the proposed orders will provide a standard of living for the parties that is in all the circumstances reasonable.
In relation to s 75(2)(h), (ha, (j), (naa), (p) and (q) these have no relevance in this case.
In relation to s 75(2)(k) the relationship commenced in 2003, the parties married in 2004 and were a couple until February 2019 when the parties started living under the same roof but as a separated couple. The respondent left the matrimonial home on 13 June 2020. The homemaker role undertaken by the applicant contributed to the respondent’s income earning capacity including his Armed Forces pension. The applicant gave up more specialised career opportunity supporting the respondent and supported the respondent by relocating to Australia which also supported the respondent’s earning capacity whilst completing his commitments to service in the UK.
In relation to s 75(2)(l) the parties will be able to continue their parenting obligations in accordance with the final parenting orders.
In relation to s 75(2)(m) the respondent is co-habiting with his new partner and new child S in rented accommodation for which he pays $820 per week and also receives a service rental allowance. The respondent’s partner is not contributing to that cohabitation as she is reskilling to be an educator.
In relation to s 75(2)(n) the Court has had regard to the orders proposed by the parties and in particular the diminution of the at law interest of the parties in the proposed orders by the respondent. The Court has also had regard to the orders proposed by the applicant that included an alleged asset that the Court has found is not an asset. The Court has taken into account the impact of the orders to be made by the Court upon property of the parties.
In relation to s 75(2)(na) the Court has taken into account the child support that has been paid by the respondent which has effectively been applied by the applicant so as to meet one half of the tuition costs at the Z School for the two boys. The respondent was paying $1027 per week and the Court understands that will reduce to about $166 per week. The Court does not accept that it was impossible for the respondent to pay that child support and finds that his contribution beyond tuition fees to school lunches, school, book and uniforms was minimal in the post separation period. The Court has taken into account the child support that the respondent has provided and which he might be liable to provide in the future under s79(4)(g).
In relation to s75(2)(o) the Court regards the at law interest of the parties to be a circumstance that justice requires be taken into account so that the interest of the applicant who has made the greater financial and non-financial contributions is not the subject of an alteration of interest that reduces her at law interest. The Court is satisfied that it is just and equitable to alter the property interests in favour of the applicant because of her greater contributions and greater future needs. This circumstance is one that the Court considers can best be addressed by treating the two properties separately, rather than the net whole pool approach propounded by the respondent, given the transfer of the Town D interest to the applicant.
The Court also considers that the different character of the Town D property being an investment property, theoretically liable to CGT, further supports a separate approach to the property alteration rather than the whole net pool. The Court has of course taken into account the whole net pool and liabilities in coming to this finding. The Court has taken into account the final parenting orders consistent with s79(4)(f).
In relation to the fourth step the Court finds that the proposed % alteration by the respondent is neither just nor equitable. The Court finds that the greater contributions by the applicant, the greater financial resources of the respondent and greater income earning capacity of the respondent support an overall alteration of property interest in favour of the applicant by treating the two assets within the net pool separately rather than simply applying a % to the net pool as sought by the respondent. Had this Court not adopted that approach, a higher adjustment would have been applied in favour of the applicant to give rise to substantially the same dollar figure outcome. The Court does not accept that a further adjustment is appropriate for the Town D property above the 60% found by the Court to be just and equitable, when that property is to be retained by the applicant. The Court has also taken into account its different assessment of contributions to the two different properties as well as the proposed further adjustment to be made in favour of the applicant referable to the matrimonial home.
The Court also finds that the applicant’s future needs in looking after the children under the final parenting orders requires adjustment in her favour as does the greater potential financial resources of the respondent from in particular the significant UK pension . The Court has taken into account that the respondent has a new family and that the applicant has a modest financial resource from renting Town D. The Court has also taken into account the superannuation financial resources of the parties.
The Court finds that the greater future needs of the applicant and the current parenting position including medical, dental and responsibilities. The parties have Y for equal time and X is likely to be living full time with the applicant. All these matter support an adjustment of 5% in relation to the matrimonial property in favour of the applicant. The Court finds that such an adjustment is just and equitable. This means the Court finds an alteration of property interest for the two properties of 60% in favour of the applicant and 40% in favour of the respondent is just and equitable. In dollar terms this means the respondent is treated as having a notional alteration of interest in the Town D property of $274,000 being 40% of $685,000.
Treating the two assets within the net pool separately because of the matters referred to above and because of the intended transfer of the respondent’s at law interest to the applicant, it is appropriate to order that the amount of $274,000 be deducted from the net proceeds of sale of Suburb E and that the balance then be split of 60:40 in favour of the applicant. In dollar terms this means the net sale proceeds of $1,687,342 is reduced by $274,000 to $1,413,342 and split 60:40 equates with $848,005 to the applicant and $674,936 to the respondent.
This reflects an overall altered asset position in favour of the applicant of $685,000 from the transfer of the 20% interest in Town D to the applicant and $848,000 from the net sale proceeds of Suburb E after accounting for a Court altered interest of $274,000, making a total asset position of $1,533.005 for the applicant. The respondent receives $274,000 plus $674,936 making as total asset position of $948,936. This is a just and equitable result given the greater financial resources of the respondent, greater income earning capacity of the respondent and the greater needs of the applicant.
The Court considered applying the % split of 60:40 first to the Suburb E net proceeds and then deducting the $274,000 from the applicant’s interest, but this would further reduce the interest of the applicant by almost $100,000 in favour of the respondent which the Court is not satisfied is just and equitable. In that regard the overall alteration if that approach were adopted moved that at law interest in favour of the applicant by only about $32,000. Far more importantly, such an outcome is not a just or equitable reflection of the greater contributions and greater needs of the applicant taking into account the greater income earning capacity and greater financial resources of the respondent.

I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.
Associate:
Dated: 6 September 2023

File number(s):	PAC 4274 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	6 September 2023
Catchwords:	FAMILY LAW – PROPERTY - UK Pensions not asset - transfer of investment property to wife - allowance for same from net sale proceeds of matrimonial home - split 60:40 – husband greater financial resources and greater income earing capacity
Legislation:	Armed Forces Act 2006 (c.52) Armed Forces Pension Scheme Act 1975 Bankruptcy Act 1966 (Cth) Family Law Act 1975 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Babett & Falconer (2015) FLC 98-067 Carron & Laniga [2019] FamCAFC115 C & C (2005) FLC 93-220 Dickons & Dickons [2012] FamCAFC 154 Dovgan & Dovgan [2021] FamCA 306 Gresham & Gresham No 2 (2023) FedCFamC1F 51 Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143 Jabour & Jabour [2019] FamCAFC 78 Kennon & Kennon [1997] FamCA 27 Kildea v Kildea (2007) 38 Fam LR 347 Manolis v Manolis (No 2) [2011] FamCAFC 105 Perrin & Perrin (No 2) [2018] FamCAFC 122 Preston & Preston [2022] FedCFamC1A 157 Stanford v Stanford (2012) 247 CLR 108
Division:	Division 2 Family Law
Number of paragraphs:	166
Date of hearing:	15-18, 22 – 23 May 2023 and 17 July 2023
Place:	Sydney
Applicant Representative:	Mr D Blackah of Counsel
Solicitor for Applicant:	John Hall Lawyers
Respondent Representative:	Ms R Druitt of Counsel
Solicitor for Respondent:	Hills Family Law Centre

PAC 4274 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS RAYMENT Applicant
AND:	MR PINKHAM Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	23 MAY 2023

Date	Event
1978	Applicant wife born
1979	Respondent husband born
1999	Respondent husband joins Armed forces (United Kingdom)
2003	Parties commence cohabitation in the United Kingdom
2004	Parties marry in the United Kingdom
2007	X is born. Applicant wife takes 6 months maternity leave.
2010	Y is born. Applicant wife takes 12 months maternity leave.
2011	Respondent husband offered armed forces 3-year exchange in Australia and family relocates to Sydney in 2011. Applicant wife takes 6 months off work pending her health care registration.
2012	Applicant wife commences 10-year moratorium work as a health care worker at the clinic and 3 days a week work with N Company.
2015	Respondent husband returns to the United Kingdom for 2 year return of service.
2016	Applicant wife and the children become Australian citizens.
2016	Applicant wife starts work as health care worker at Suburb O 3 days a week.
2017	Town D property is purchased for $480,000 to facilitate the children’s sports activities and competitions.
2018	Respondent husband join armed forces
2019	Respondent husband becomes an Australian citizen.
2019	Respondent husband commences relationship with Ms M
23 February 2019	Parties separate under same roof.
Early 2020	Applicant wife fractures a bone.
13 June 2020	Respondent husband moves out of the family matrimonial home and in with his defacto partner Ms M at Suburb P.
19 August 2020	Applicant wife commences proceedings.
September 2020	Respondent Husband ceases making contributions to the joint account ending #...29
2020 – 2021	Respondent husband resides in Town Q rental.
May 2021	Respondent husband resides in Suburb R rental.
Mid-2021	Respondent husband makes complaint about applicant wife and officers visit the applicant wife and children at Town D.
Late 2021	Respondent husband makes Police and Health Care Complaints Commission complaint about the applicant mother vaccinating the children.
2 September 2021	Interim parenting Orders made.
October 2021 – 2022	Respondent husband refuses to sign children’s passport renewal.
February 2022	X stops spending time with the respondent husband.
March 2022	Fixed rate mortgage on Suburb E expires and not able to refinance as husband refuses to sign, defaults to variable rate. Fixed rate on Town D expires and defaults from interest only to principle and interest on variable rate.
2023	S is born to respondent husband and defacto partner Ms M.
18 May 2023	Final Parenting Orders were made by Judge Street
22 May 2023	Final Parenting Orders were amended pursuant to the Slip Rule.