Samson and Zarev

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMSON & ZAREV

[2018] FCCA 2471

Catchwords:
FAMILY LAW – Property – equal pre separation contribution to assets - wife’s capacity to work at issue – wife has a capacity has chosen not to exercise it –husband made a superior contribution to the assets post separation – wife will never achieve husbands income or superannuation – adjustment for her future needs.

Legislation:
Family Law Act 1975, ss.75, 79, 90MT
Family Law (Superannuation) Regulations 2001, pt.6
Superannuation Industry (Supervision) Regulations 1994, r.7A

Cases cited:
Richards & Whipp [2011] FamCA 141
McCall & Clark (2009) 41 Fam LR 483
Pierce & Pierce [1998] FamCA 74
Ferraro & Ferraro (1992) 16 FamLR 1
Coghlan & Coghlan (2005) 193 FLR 9

Applicant:

MS SAMSON

Respondent:

MR ZAREV

File Number:

SYC 710 of 2016

Judgment of:

Judge Henderson

Hearing dates:

18, 19, 20 June 2018

Date of Last Submission:

20 June 2018

Delivered at:

Sydney

Delivered on:

5 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

The Norton Law Group

Counsel for the Respondent:

Mr Johnston

Solicitors for the Respondent:

Rivera Legal

ORDERS

That within 60 days from the date of these orders, the husband pay to the wife the sum of $410,000.00.
That simultaneously with the payment of the Capital Sum by the husband to the wife:-
(a)the wife shall do all acts and things and execute all documents necessary to transfer to the husband the whole of her right title and interest in the former matrimonial home at Property A to the husband; and
(b)the wife shall deliver up vacant possession of the home in a good state of repair; and
(c)the wife shall deliver to the husband the items in the Schedule hereto; and
(d)the husband shall discharge all encumbrances on the title.
In the event the husband fails to comply with order 1, the parties do all things and sign all documents to list the property at Property A, NSW, (“the property”) for sale by auction with an agent or agents and reserve price agreed between the parties or failing agreement with an agent nominated by the president of the Real Estate Institute of N.S.W and reserve price nominated by a registered valuer chosen by the president of the Real Estate Institute of N.S.W or his nominee.
The parties shall each co-operate in every reasonable way with the agent including:
(a)making the key available to the agent or the agent’s employee;
(b)allowing inspection of the property at all reasonable times requested by the agent;
(c)doing or saying nothing to hinder or prevent a sale being effected;
(d)signing all documents requested by the agent in relation to the listing for the sale of the property.
That upon completion of sale of the property, the proceeds thereof be distributed in the following manner and priority:
(a)Firstly, in discharge of the Mortgage number registered over the property to Bank 1.
(b)Secondly, in payment of agent’s commission, auctioneer’s and auction expenses and proper legal costs incurred upon the sale.
(c)Thirdly, in adjustment of Council rates, water rates and other statutory imposts appropriate and reasonable for a residential property of this nature.
(d)Fourthly, in payment of the balance as follows:
(i)55% of the net proceeds of sale less $13,000.00 to the wife; and
(ii)The balance to the husband.
(e)That pending compliance of the Parties with Orders 1-3, neither party shall further encumber, charge or mortgage his or her or their interest in the property without the consent of the other Party in writing or Order of the Court.
That pending settlement of the sale of the property, the husband continue to meet all mortgage repayments to Bank 1 on an interest only basis as and when they fall due.
On settlement of the sale of the property, the parties do all acts and things and sign all necessary documents to close the joint account with Bank 1 and the balance therein be divided equally between the parties.
On settlement of the sale of the property, the parties do all acts and things and sign all necessary documents to close the joint account with Bank 1 and the balance therein be divided equally between the parties.
Within 14 days of the making of these orders the husband do all things and sign all documents necessary so as to transfer all his right, title and interest in the parties’ dog [A] to the wife, and the wife thereafter be delcared the sole owner of [A].
The wife receive the balance of goods and chattels included in the valuation dated 30 September 2016 after the husband’s goods have been provided to him and as setout in the Schedule to these orders.
That pursuant to s.90MT(4) the amount equal to 50% ($77,111.00) of the husband’s superannuation interest in the Super Fund A (“the fund”) be allocated to the wife (“the base amount”) by way of a splitting order as follows:
(a)That, in accordance with paragraph 90MT (1) (a) of the Act:
(i)the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii)the Husband's entitlement in the fund, is correspondingly reduced.
(b)That the husband as trustee do all things necessary to:
(i)calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Wife by these orders; and
(ii)pay the entitlement whenever the fund makes a splittable payment out of the Husband’s interest in the fund.
(c)That this order have effect from the operative time and the operative time for this order is the date of the order.
That the Trustee of the Fund do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to r.7A.06(2) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the fund to a fund of the wife’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Other than as herein provided, and as against the Husband, the Wife is hereby declared the sole legal and beneficial owner of all items of property and financial resources of whatsoever nature and kind in the name, possession, ownership or control of the Wife as at the date of these Orders.
Other than as otherwise set out in the Orders, the Wife be responsible for indemnifying and keeping indemnified the Husband in relation to all debts attaching to any property that she is to receive/retain pursuant to these Orders.
Other than as herein provided, and as against the Wife the husband is hereby declared the sole legal and beneficial owner of all items of property and financial resources of whatsoever nature and kind in the name, possession, ownership or control of the Wife as at the date of these Orders.
Other than as otherwise set out in the Orders, the Husband be responsible for indemnifying and keeping indemnified the Wife in relation to all debts attaching to any property that he is to receive/retain pursuant to these Orders.
The parties each do all acts including but not limited to signing all documents necessary to give full force and effect to the provisions of these orders and in the event that either party refuses or neglects to comply with any provision of these Orders within fourteen (14) days of a written request to do so, then a Registrar of this Court at Sydney is appointed, pursuant to Section 106A of the Family Law Act 1975, to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to this order.
The order for spouse maintenance made 2 March 2017 be discharged forthwith.

THE SCHEDULE

Items to be provided to the husband from the Valuation

Item #	Price
28	150	Bose sound system including woofer & speakers
39	200	Philips ironing station
72	100	Boxed Christofle cocktail shaker
130	30	Ryobi bench drill
131	20	Ryobi shredder/ mulcher
132	40	Karcher gurney with attachment
133	10	Aqua vacuum
134	5	Ryobi leaf blower
135	30	Ryobi branch cutter
136	20	Ryobi hedge trimmer
137	80	Two lockable steel trunks
138	40	Flymo lawnmower
139	50	Compact lawn mower
141	60	Crescent spanner & wrench set
142	5	Ozito chainsaw sharpener
143	10	Ryobi cased hammer drill
144	20	Ryobi boxed router
145	5	Ryobi hand held sander/grinder
146	10	Bosch cased tool
147	20	Circular saw
TOTAL VALUE	$895

IT IS NOTED that publication of this judgment under the pseudonym Samson & Zarev is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 710 of 2016

MS SAMSON

Applicant

And

MR ZAREV

Respondent

REASONS FOR JUDGMENT

The matter of Samson & Zarev was a property application heard for two days on 18 and 19 June.
Mr Dura of Counsel represented the applicant wife, and Mr Johnston of Counsel the respondent husband.
Only the husband and wife gave evidence.
The documents I read for the wife were as follows:
a)Initiating Application filed 11 February 2016;
b)Financial Statement of 12 June 2018;
c)Trial Affidavit of 22 May 2018;
d)Valuation from (omitted) of the former matrimonial home; and
e)Case outline prepared by her Counsel, Mr Dura, together with a minute of the orders she seeks.
The wife seeks that she receives 65% of the sale proceeds of the former matrimonial home at Property A.
The documents I read for the husband were as follows:
a)Initiating Application filed 2016;
b)Affidavit sworn 29 May 2018;
c)Financial Statement of the same date, together with the voluminous exhibits tendered by the husband.
The exhibits the parties tendered were as follows:
Each party tendered to me a costs disclosure document marked respectively husband’s and wife’s exhibit 1;
Wife’s exhibits:
a)exhibit 2 the valuation report of (omitted);
b)Exhibit 3, husband’s financial statement of 20 May 2016 wherein he failed to disclose a loan he asserted he had with his father. That, however, was rectified in a 2017 financial statement together with his updating financial statement;
c)Affidavit of the husband of 18 May 2016 which failed to refer to this asserted loan.
Husband’s exhibits. These were in the main contained in 3 large volumes:
a)exhibit 2, photographs of the garden at the former matrimonial home when the parties lived together;
b)exhibit 2 photographs of the garden in 2018;
c)exhibit 4, a witness statement provided by the wife in relation to AVO proceedings between the parties on 21 August 2014;
d)exhibit 5, photograph taken by the husband of a gentleman called Mr D, in the former matrimonial home contained in husband’s tender bundle exhibit 5;
e)exhibit 6, photographs of the wife on a website, Ashley Madison. The wife’s evidence was the photographs were taken in 2012. These photographs were on this website in in 2014 and depicted the wife beautifully made-up in a glamorous pose wearing silken lingerie;
f)exhibit 7, pages 227 to 293 of 7 being the transcript of the Local Court proceedings in relation to the AVO. The wife was cross-examined on this transcript which will be referred to in the judgment;
g)exhibit 8, pages 305 to 315 of 35. These are various certificates and qualifications that the wife has received since 2000, being a (qualifications omitted) in 2000, various resumes she has provided to employers and her resume of work experience from 1992 to 2003;
h)exhibit 9, an ABN document for an incorporation called Business 1 dated July 2009 in the wife’s name. It was deregistered, if that be the correct word, in September 2017;
i)exhibit 10, pages 345 to 354 of 35 being alleged activity on the Business 1 business name;
j)exhibit 11, part of the wife’s affidavit filed 11 February 2016 - which I will refer to later;
k)exhibit 12, the value of the husband’s current Super Fund A life plan and at the commencement of cohabitation;
l)exhibit 13, a Bank 1 loan approval obtained by the husband to support him in buying out the wife’s interest in the former matrimonial home dated June 2018;
m)exhibit 14, the husband’s financial statement dated 28 February 2017 in which he disclosed an asserted loan to his parents;
n)exhibit 15, pages 27 to 28, of 6, being bank account details showing deposits and withdrawals of money from the wife’s account;
o)exhibit 16, an account in the wife’s name with Bank 1 from 30 May 2011 to 12 August 2011;
p)exhibit 17, pages 101 to 108 of 14, being letters to and from the husband and his father in relation to the asserted loan;
q)exhibit 18, pages 150 to 151 of 20, being a letter from the wife’s lawyer dated 30 March 2016 in answer to the wife’s allegation that from separation she never had anyone to the home due to her husband’s behaviour and at his insistence. This assertion was ultimately shown to be incorrect;
r)exhibit 19, pages 164 to 194 of 23 and 24 being drawings the husband carried out of the renovated kitchen, photographs of the kitchen when it was under renovation, letters and correspondence between the husband and tradespeople in relation to the kitchen.
Wife’s exhibit 1 indicates she has spent $80,000 in legal fees. Husband’s exhibit 1 indicates $100,000 spent or to be spent.
This was a bitterly fought matter by two people who have no children. Unfortunately, it became apparent that having no children has been a significant cause of the breakdown of their marriage. The wife’s case is that the husband from almost the moment of cohabitation let alone marriage, controlled and coerced her. His behaviour worsened during the relationship. He would not permit her to work, was not interested in her working, discouraged her from obtaining employment either overseas or when he came to Australia.
He was highly critical of her, demeaning of her, perpetrated violence upon her during the relationship. The wife took out AVO proceedings post separation which were dismissed. That as a consequence of his poor behaviour, her contribution-based entitlement was increased as her homemaking role was made much harder than it ought to have been, she has, effectively, not worked since she met the husband and his treatment of her has resulted in her losing confidence and she now has an inability to obtain work.
The husband denies all the wife’s allegations of poor behaviour, coercion, control and that he did not want her to work.
The husband said the parties met in (country omitted) and after commencing their relationship, together determined they would live in Australia.
He followed the wife to Australia where she had residence or citizenship. They purchased their home wishing to start a family. The wife very sadly had two miscarriages. IVF was not successful, and their relationship simply broke down over time. The husband said he has never yelled at his wife, never raised his voice at his wife and he would do everything to make his wife happy and calm because she is the one with the volatile temper. There may be some force to the husband’s case that the wife is histrionic and behaves poorly at times.
Family law proceedings are not about rectifying a poor choice, or a situation that you now wish you had not put yourself into, or recreating history. My task is to identify the matrimonial property its nature species and value and then ascribe to each party their contribution-based entitlement, expressed as a percentage, having regard to their financial contributions both direct and indirect, as well as contributions as parent and homemaker. These contributions are assessed throughout their relationship, pre and post separation. I then may adjust up or down, or make no adjustment to their contribution based entitlement having regard to their future needs as set out in section 75(2) of the Act[1].
[1] Family Law Act 1975 (Cth) s 75(2).
The wife’s case is that she is unable to work due to the treatment meted out to her by the husband during the relationship. The wife presented no evidence from any expert in relation to her anxieties or any other reason preventing her from working other than her words.
In a decision of Justice Watts in Richards & Whipp[2] and relying upon McCall &Clark[3] His Honour opines of the difficulty in relying on evidence of, in that case, a mothers anxieties resulting from a time with order diminishing her parenting capacity, in the absence of medical evidence to support same and it becomes an issue of weight.
[2] Richards & Whipp [2011] FamCA 141.
[3] McCall & Clark (2009) 41 Fam LR 483.
That is the same problem for the wife in this matter. There is not a shred of evidence to support her case. That the wife has not worked for some time is clear. It is also apparent she has little enthusiasm to work. The fact is she has not worked since she met the husband. However, not wanting to work, having little enthusiasm for work or even not having worked for some time is vastly different to being incapable of working.
I am unable to find that the wife suffers any disability resulting in her being unable to work. The wife has obtained significant qualifications in Australia at TAFE in (studies omitted), two areas in which she has interest. However she has not applied for one single job in any field since marriage. Her evidence that this is as a result of the treatment she received at the hands of the husband is not made out on the evidence.
There is compelling evidence that the husband was highly critical of the wife during the relationship, and may have been controlling of expenditure. It is clear that the management of money is important to him. The payment down of debt is important to him. It is also clear that their relationship was unhappy, certainly from late 2011. These parties did, as many do, made the fatal error of determining to separate and end their relationship, and yet remained under the one roof.
That decision was tantamount to a disaster. The matter came before me on 7 March 2017 when I made orders that the husband was to vacate the home and to pay the wife spousal maintenance, which he has done. I made that order on the basis that it was an interim decision, wife had been without work, was without work, and the husband was earning an income and that the living situation for each of them had been intolerable since separation.
Reading the wife’s affidavit is at times distressing in her recollection of the husband’s treatment of her.
The wife agrees she had very little by way of assets at the commencement of the relationship, unlike the husband who is a good saver and had significant funds in a bank account, to which I will later refer.
The wife says that she moved to Australia before the husband in 2008, and her husband joined her in 2008. They were married in (country omitted) and had a world holiday before they came back to Australia. That she had permanent residency.
The wife’s employment history in Australia is about 18 months in (employment omitted). The husband has fully supported the wife since separation, save for the following. I accept that the wife’s parents forwarded to her a sum of no less than $242,000 in the period 2008 to 2009.
It did the husband no good to argue that in some way he did not know what the wife did with this money, or that the purchase by her of a car for $55,000 with that money was in some way not a benefit to him. Clearly it was.

As with monies received by the husband from his family, monies he had acquired prior to the relationship, and his income these parties used the money they acquired either by gifts from family, from their own income or savings for the benefit of their relationship and the payment of expenses.
I accept that the wife did make a contribution of $242,000 in 2009 to this marriage. However, she has retained the Motor Vehicle E and the sum of $30,000 from its sale. The wife’s evidence is that she used most of the money from that sale towards the kitchen renovation costs.
It is agreed that the wife was the money manager during the relationship and the wife conceded that she moved money around. That she put money into term deposits to maximise interest, a sensible and clever approach. The husband left this part of their relationship in her hands. This is not the action of man who is seeking to control his wife.
Consistent with that evidence before he migrated to Australia, the husband transferred into the wife’s Bank 1 account monies from his savings and his salary acquired pre their co-habitation in Australia. Those monies were $8,969 to the wife in 2008, $39,772 on 2008, $90,174 on 2008 and $10,185 on 2009. A total of $150,000 rounded up.
At this time the wife was the money manager, the husband worked, and they were clearly embarking upon a joint venture of starting a family and living a life together in Australia.
The short facts.
The wife was born in 1969 and the husband in 1977.
The wife lived in Australia from 1999 to 2003 and worked for 18 months.
The parties commenced a relationship in (country omitted) in late 2006 early 2007 the date is not relevant to me. However, the wife asserts that from the date of commencement of cohabitation she ceased employment at the husband’s request. The difficulty for the wife is I am not quite sure what her employment was at the time of commencement of cohabitation. There is little evidence to support the wife working at any significant level between 2003 and 2007.
The parties commenced cohabitation no later than 2007. The wife was not working at that time.
The wife says she ceased employment in her (occupation omitted) role in the (employment omitted) industry in 2006/2007 at the request of the husband. This is denied by the husband
The wife says that she experienced her first episode of emotional abuse in 2007, yet married the husband in 2007.
The wife’s case is that she was then aged 38, had been living on her own, was independent and commenced a relationship with a man who was from the beginning emotionally abusive
The wife asserts that during their world trip honeymoon she suffered verbal abuse from the husband. However upon her return to Australia in 2008 asks her husband to join her.
The husband fully funded their 6 month honeymoon and denies these allegations of verbal and emotional abuse.
The wife makes a complaint that the husband subjected her to verbal abuse in 2009 when she purchased the Motor Vehicle E, and she did not want to purchase this car and that her husband imposed upon her to buy this particular car.
The wife says she applied for a job at a (employer omitted) in 2009 and her husband said to her why would she want to work at that job, and so she did not take it up. The wife became pregnant in 2009, and understandably any idea of work would have flown out the window. This was an important event for these parties. Unfortunately that pregnancy did not continue. I accept that the wife was told by a gynaecologist in 2010 to rest, not take-up employment if she and her husband wished to have another child.
The parties commenced to look for their home in early 2010.
The wife became pregnant again in 2010 and again the pregnancy did not continue which sad event occurred in 2011 being just after the parties had purchased the former matrimonial home.
I accept the wife’s evidence that during 2009 when she and her husband were endeavouring to have child and up until 2011 when they had just purchased their home and the wife was again pregnant, the husband did not want her to work and she and he agreed with this
I accept they agreed at this time that the wife would stay at home, find a home for them and their unborn child. Certainly, when the wife became pregnant I accept the husband would have been very careful about the wife and her emotional state given the first miscarriage. That evidence makes sense.
It is clear that the wife’s parents intended to relocate and live in Australia. They came to Australia for six months in 2011, however, that plan did not eventuate, and they returned to (country omitted).
The wife says the husband’s emotional abuse of her escalated from April 2011.
The wife wanted to buy a dog. The wife says the husband insisted if she bought a dog it had to be a (breed omitted), no other dog although the wife had her heart set on a (breed omitted). The wife gave clear evidence on why she wanted to buy a (breed omitted) as it was a dog she had always wanted.
The husband’s case is the wife wanted a dog to show. That he spent a lot of time training, controlling and exercising the dog, because the dog was too strong for the wife. He denies he insisted on a (breed omitted).
The wife sold the Motor Vehicle E, and I accept she put part of that sale towards the renovation of the kitchen. The parties allege it took them 12 months to renovate the kitchen. They each minimised the work the other did in this joint venture. This evidence did neither party any credit
This renovation was clearly a joint venture. The husband did the work he could do, the wife did the work she could do. As I said at the trial, the putting in of a new kitchen is not merely the installing of cupboards and new doors, it is taking all the existing kitchen things out of the old kitchen, cleaning it up, then putting the kitchen things back into the new kitchen.
In about 2012/2013 the husband received about €50,000 from his parents, and the wife knew nothing about it this at the time as it was received other than it was a gift from his parents. The husband said he did not tell her this was a loan rather it was a gift
In 2009 the husband had transferred $150,000 of his own funds into the wife’s Bank 1 account prior to migrating to Australia. The wife’s parents had transferred to her $224,000, of which $56,000 was used to purchase a car. These monies together with borrowings from Bank 2 of $616,000 assisted them to purchase the property at Property A for $770,000 with a mortgage in late 2010 early 2011. The costs to purchase Property A was a total of $803,000
The husband asserts his father lent him €50,000 in September 2012 to help defray interest on their mortgage. This money was held in an offset account which did defray interest however that is all it did. In 2016 the husband took out a loan of $80,398 to repay his parents. This loan is now 2 loans which total $126,000 which are the husbands debt and not the wife’s debt
The defraying of interest on their home loan is a small contribution by the husband overall
The parties underwent two IVF treatments during the marriage and they failed. These losses were significant to each of them, and when these matters were raised in cross-examination, the wife cried, and the husband became tearful. I am not sure that the parties received the help they needed at that time, to deal with a most difficult situation.
The parties separated under the one roof on 20 August 2014. At the time of separation, the offset account had $186,660 in it. The wife took $130,300 from this offset account. The difficulty with this is that $80,000 of the money that she took was the €50,000 the husband’s parents had advanced to him. The husband agreed that he told the wife this money was a gift from his parents, so from her point of view she was doing nothing wrong. She believed it was their money, and she took it.
Thus although the current debt in the husbands’ name is $126,000, $80,000 of that debt arose from a repayment by him of his parents advancement and I must account for that in my decision.
I do not accept the documents the husband tendered in his various affidavits to support a loan. It is not a loan provable at common law. These are documents from him to his father, his father to him. I accept he has a moral obligation, and he has carried out that moral obligation by refunding his parents.
The husband withdrew some $55,000 from the offset account, repaying $23,000 of this by way of mortgage payments for the former matrimonial home.
The wife has used the $130,000 she took at separation and perhaps not wisely. She has taken some holidays with that money and sets out in her affidavit what she did with that money.
The parties physically separated in April 2017.
The wife has seen a psychologist since separation, from about 2015 onwards. The wife asserts she suffered a mental breakdown and had suicidal thoughts, and called the police. There is no medical evidence to support this however the police records indicate that the police were not worried about anything the husband had done, but were worried about the wife’s mental state in late October/early November 2016, and that is why she was taken to the Hospital.
The wife stayed at the mental health unit for two days. This was immediately after the AVO proceedings against the husband were dismissed.
The husband’s evidence that the wife had a breakdown, florid event due to the dismissal of the AVO has the ring of truth. The wife case that the husband stalked her around the home and thus caused this reaction in her is rejected by me.
The wife was cross examined on part of the evidence she gave at the AVO proceedings.
It is apparent the wife was furious the AVO proceedings had been dismissed. The magistrate had no option but to dismiss them. Her evidence at that hearing was that she had $130,000 in the bank being the money she took at separation in 2014, was fearful yet remained in the former matrimonial home.
Her evidence at the AVO proceedings was that her husband controlled what she ate, what she wore, where she went, what she watched on TV. In cross examination in these proceedings she admitted she had complete freedom throughout the day to do what she wanted.
The wife complained in this hearing that her husband controlled her friendships and she had no one to her home post separation. That is untrue. It was clear from her own evidence she had had friends at the home post separation.
Husband’s exhibit 5 is a photograph of her friend Mr D with a bag of dog food in his hand. The wife would not admit the photograph was taken at their home. The husband took the photograph and said it was taken in their home post separation.
However upon examination, the balustrade in husband’s’ exhibit 5 and in the valuer’s report were the same balustrade and the doorway to the balustrade and staircase was the same.
I am satisfied the photograph of Mr D, her friend, was taken at the parties’ home. The wife’s allegations that the husband controlled her every movement is simply not accepted by me.
That does not mean that the husband was not critical of her, that he may not have supported her in her difficult time with her miscarriages and failed IVF programs as she wished, or that he did not yell at her or shout at her or call her names, or behave poorly towards her. I accept he did at times do so.
The AVO proceeding came about as the husband discovered his wife had been posting on a dating website for two years being the Ashely Madison website and had been dating. It is clear from the photographs attached to the husband’s affidavit, that the wife was putting herself out as being available to date from between 2012 and 2014 in extremely glamorous poses. This was at the same time the wife would have me accept her husband controlled her every movement. The husband became upset and behaved very poorly towards his wife upon this discovery and his conduct is not acceptable.
The wife would not admit she had posted these pictures of herself as a means of finding a partner. Her evidence was that she had been photographed in this alluring and glamourous fashion as a flight of fancy with little cost as she has sourced a cheap makeup artist and hairdresser for the shots. That evidence is unbelievable. Little turns on it save to say it supports the husband’s case that the wife is not truthful and in an issue of contention his evidence is to be believed. The wife is not an accurate historian.
In relation to the parties’ oral evidence the wife did not answer questions clearly. I warned her several times to just answer the question that she was not here to defend herself, but to answer questions. For example, she was asked “you took $130,000 at separation”; her answer was, “all I know is, he paid $80,000”. Not “yes, I did”.
In the transcript of the AVO proceedings the wife told the court she kept $130,000 and could not move out of the house as she needed this money for legal fees. Under cross examination on this issue the wife would not admit this is what she said, nor would she admit the statement was true or untrue.
The wife was very quick to answer at times and did not carefully think about things. For example, the husband owns a grey case which he left at the home and which means something to him. It has his various certificates and important documents contained within it. Before Mr Johnston finished his question on the whereabouts of the case the wife quickly answered, “I only ever saw that suitcase in (country omitted) once, and never again”.
The wife’s quickness to defend herself prompts the question why would the wife feel a need to defend herself, when her case is it was the husband who perpetrated poor behaviour, coercion and control over her. The man she painted as her husband presented as a different man in the witness box. He was careful in his answers, quietly spoken and thoughtful. His concern with paying off debt and the importance of careful management of money was also evident. He presented as are far more cautious person and far less flamboyant than the wife.
The wife was asked “Your husband was a penny-pincher, so why wouldn’t he want you to work?” The wife did not answer that question. It is clear the husband is an extremely good saver. He has saved $37,000 post-separation from his own income, whilst paying all outgoings, on the home and paying his own expenses and spouse maintenance to the wife as the wife has no job or money. The wife would not agree this was correct however it was clear on the evidence.
The wife’s evidence that the husband was controlling of her every action and coercive is inconsistent with her independent and unfettered movements during the day and her total control of the parties’ finances during the relationship.
The wife properly moved the money where she thought they would get the best interest rate. For example, on one day she moved one parcel of $100,000 three times. That is not the conduct of a woman who is under the control of her husband. Women who are coerced and controlled have little if any independence in any aspect of their life particularly in financial management of joint funds or even their own funds.
The wife would not admit that she moved money as she pleased. I am satisfied the husband did not move this money. When pressed and asked, “Well, Mr Zarev did not move the money”, she answered “I was not in total control. I was not the only one in control”. That was not the issue at hand it was her assertion that the husband controlled her every action.
The wife would not admit, as the husband asserts in his affidavit, that he encouraged her to obtain work. It is inconsistent with the husband’s personality and focus on careful management of money and paying down debt that he actively prevented or discouraged his wife from earning an income.
This is particularly so after they had purchased their home, had a sizeable mortgage and had failed in their attempts to have a child. It was important for the husband that the parties got back on their feet. The husband is uncomfortable with debt even to his parents.
The wife obtained some domain names in 2016. When asked why, she said, “I just wanted them”. I accept the husband’s evidence that the wife did not want to work for an employer, and wanted to start her own business. The wife did not deny this as such. However the wife never made any real effort to start her own business and the husband was unable to obtain a job for her as only she could do that.
The wife had obtained an ABN in 2009 and it was put to her this was done to open a business.
The wife answered. “No, it was because we could get a cheaper deal on the car”, “I never did anything with it “. That last sentence is correct.
The wife asserted that the husband did nothing around the home and at best did the garden maybe once every three months. That is inconsistent with photographs tendered being husband’s exhibit 2.
That evidence is inconsistent with the evident pride the husband exhibited when he spoke of the tools he bought and the use he made of them and that he wants returned to him. It is inconsistent with the wife’s evidence they went to Bunnings every weekend to buy tools for the garden and other tools which the wife asserted he never used. This evidence is inconsistent with a man who is careful with money, wants to pay off the mortgage and, to use his counsel’s word, a bit of a penny-pincher.
The husband took great pride in the garden and kept it to an immaculate condition, as no doubt the wife did the home. I accept the wife did the lion’s share of the homemaking after all she was at home every day and the husband at work. The wife asserted she assisted him in preparing reports for his work and the like. I accept she did this as this is consistent with a marriage and the joint venture that parties engage in in a marriage. This behaviour and contribution is inconsistent with an overborne, coerced and controlled wife.
At separation the husband went about reducing the payments he was making on the mortgage to principal only. Bank 1 failed to carry that out, and they refunded to the husband some $29,000 in overpaid principal, which he has been using since that time to pay the interest only on the loan. That is the way he says he has been able to maintain her spouse maintenance payments, as he has not had to pay for the mortgage.
It is the wife’s case that the husband has not supported her post separation and put in issue his payment of the mortgage. The wife would not agree with the proposition put by the husband’s Counsel that the overpaid principal went into an account, a form of an offset which was frozen, and was only used to pay the interest on the mortgage on the home the wife has lived in continuously post separation. The wife said, “they told me something different”. Her answer, when pressed, “What did they tell you?”, “It was a limited reinstatement on the account and they have frozen $29,000”. The wife would not accept that this was exactly the same evidence that the husband gave.
This is the same story perhaps using different words however for the wife to assert as she did that the husband had done something untoward with this money did not assist her case. The wife would not concede that the husband has paid the mortgage post separation.
The wife agreed she slashed his Samsonite luggage in 2016, the AVO proceedings were dismissed. The husband asserted she took a $1,500 Mastercard gift card that was in his room and received by him from his employer post separation. The wife denies this. The findings I make on this issue are:
a)I accept the husband received this gift card;
b)that its value was $1,500;
c)this gift card was received by him as a result of his performance at work;
d)that he did not use it;
e)that he has been unable to find it;
f)that the wife was home alone during the day.
Those findings lead inexorably to the fact that wife took and used it.
The wife agreed that she threw his Bose speakers into the bin. Her reasons were “well, he wasn’t trying to fix them, so I wanted to get rid of them”. Clearly this lady has a temper and can behave in an uncontrolled manner.

The husband’s evidence in answer to the wife’s claims he prevented her from seeking a job begin at paragraph 71 of his affidavit,:
We never agreed Ms Samson would not work in Australia. Soon after I moved to Australia, I said words to the effect “you need to get a job”. She replied “child care is very expensive in Australia. I would better caring for children at home. Working for a manager is for losers. I’m creating my own business and will work from home rather than an office.
This evidence has the ring of truth, is consistent with the wife obtaining an ABN number and registration of Domain names and if the parties had been able to have children made a lot of sense. Nothing has eventuated however. The husband asserted he pleaded with the wife in 2013, to either build a business from home or get a job, to ease the burden of the totality of financial support on him. The husband said due to her intransigent attitude to this, he just gave up asking. This evidence has the ring of truth. The wife’s’ evidence that the husband prevented her from obtaining a job does not have the ring of truth when one has regard to the husband’s careful management of money and desire to pay down debt.
The wife would make no concession that the husband ever treated her well, that they were in love and had good times. When asked, why she remained with him and brought him to Australia with these difficulties having emerged so early on in the relationship she said, “I was hoping it would change. Coming to Australia would change his lifestyle. He said to me ‘I will change when we are in Australia’”. I reject that evidence. It was not in her affidavit and was made up on the spot by the wife.
The wife admitted that the husband probably did love her, but that he was abusive. The wife said she did love him until they separated in 2014. The wife gave oral evidence that she was crying and choking on her tears in 2007 and 2008 due to his abusive behaviour towards her. That she cried every month, was always crying and choking on her tears. Told her parents she was so unhappy in 2008 and that “He was yelling all the time at me, I was crying and crying for hours. That from the time we arrived in Sydney in 2008, I experienced an ongoing pattern of violence and emotional abuse from Mr Zarev”.
The wife said although the husband said he wanted to have a baby, he did not show it. When she was in the car with him, he would yell at her about driving. He abused her about her driving and she would cry and cry.
This evidence which paints a picture of a most difficult and abusive man is difficult to reconcile with the parties actions and plans at this time. Not only were the parties saving hard, the wife moving money to get the best interest rate sometimes on 3 occasions in one day, contemplating buying a home, they also contemplated buying a block of land and building a home in around 2010. The wife was the driver in finding a home and it is difficult for me to accept the husband would have permitted this if he was as controlling and abusive as alleged. The wife would have lost her confidence by this time and such a task may have been very onerous for her.
The husband’s case is that they wanted to build a home or purchase a large home, which they did, a four-bedroom home for their children and the wife’s parents to live with them. That evidence has the ring of truth. The wife’s parents and the wife had an argument after they had lived with the parties for 6 months in Australia in 2011 and they left and returned to (country omitted). I make no finding as to why this occurred however the wife also said her parents planned to come and live in Australia, but that this did not eventuate.
The wife says, at paragraph 56:
Once the application in the local court was dismissed, his behaviour became more threatening.
The AVO was dismissed as the local court magistrate was satisfied on a criminal test that she was not in fear of the husband as she had not left the home, despite having significant resources to do so. That is a different test to a coercive, controlling relationship, or a relationship where the wife feels the husband has been unduly critical of her, which he may well have been. I do not accept the husband’s evidence that he never yelled at the wife.
He behaved badly when he discovered his wife may have been dating other men and had put herself on a website to date, for the prior two years. He would have yelled at her on that occasion and behaved badly.
I do not accept the wife’s evidence that she did not yell at him or his evidence he did not yell at her. However the wife says she was subjected to daily threats, intimidation and bullying by the husband, from separation until I made the order he leave the home. That he would follow her around the house, yell at her, switch off lights, switch off the air conditioning, and the like. It cannot be forgotten that the wife only reported the husband’s poor behaviour post-separation and never before.
The wife gave curious evidence. The wife asserted that when the dog was being toilet-trained, the husband would lock her out of the house until the dog went to the toilet and that he would not toilet on the grass and had to toilet on the stones, because toileting on the grass would damage the grass.
That evidence of being concerned about the dog’s urine affecting the grass is inconsistent with someone who does not take pride in his garden as the wife would have me believe about the husband. It is inconsistent with her evidence he only did the garden once every three months.
Secondly and more relevantly this is very poor behaviour, if it occurred. To lock a spouse out of their home is controlling and coercive in the extreme. Yet is has never been reported to police in any police record by the wife even after separation. It was not in the statement she gave to Police to support her AVO proceedings in 2014.
Her answer under oath in these proceedings to explain this omission.
I could not tell the police this thing, because I never felt free enough to tell the police these things. None of those things. I just talked and said “he’s abusive. Never lets me do anything. Doesn’t let me be or sends me text message to try and find out where I am. He’s not so much physical with me, but manipulative towards me. He’s emotionally abusive. He says ‘I’m going to burn the house down. Get out of my house’. Grabbed both arms. Tried to get to the bedside table, he pushed me. Grabbed it first. He starts yelling at me. ‘I don’t want to see you in any pictures’. Tearing a picture apart.
This was a photograph of the wife on the dating website.
In her statement to police in 2014:
My husband said to me ‘you have to get out of the house’. I said ‘the lawyers said I can stay. It’s my house as well’. He then started to push my buttons, used words and he smug smiled to get at me. I started feeling angry toward him for trying to get me to become aggressive. He was trying to provoke me. I did get angry, because I said to him ‘fuck off’. I started crying. I felt defenceless.
There is no doubt there was a nasty altercation in 2014 between the wife and husband. However in the AVO proceedings the wife complains that it was his tone of voice that upset her and her plan was to stay in the house until the property settlement. It is apparent why the proceedings were dismissed.
The wife now alleges the husband grabbed her around the throat, and this was a common way he dealt with her when he became angry. There is no allegation of that in her police statement in 2014. The wife alleges he grabbed her by the arms and around the shoulders. The wife had to agree that police had given her an opportunity to make complaint about her husband’s behaviour when they took a statement from her in 2014, and that all the poor behaviour she complained of to them was contained in that statement.
The wife would not admit that it was her behaviour in 2014 after the AVO proceedings had been dismissed and another altercation ensued between them which caused the Police to call an ambulance and have her taken to Hospital and not the husband’s behaviour. The wife said the reason she was taken to Hospital is because she was saying “I wanted to commit suicide”.
I accept that the husband has said to her he would like to throw her out of the house and that this was his house. That has the ring of truth and is consistent with his assertions that the financial pressure on him was too great and despite his efforts to have the wife obtain work she would not do so. I accept that as the wife had no income she was financially vulnerable and this behaviour and words would have made her feel threatened and perhaps coerced. This is consistent with the wife’s evidence at the AVO proceedings
At this hearing the wife was asked “you have no positive things to say about your husband”, and the wife’s answer was “how can I, after what I’ve been through and still going through”. I am not sure to what the wife is referring. I accept being unsuccessful in becoming a parent was a real heartache however that is hardly a matter to lay at the feet of the husband. The wife may have convinced herself that her husband treated her poorly throughout the entire marriage. I am not at all convinced this is the case. I am satisfied that towards the end of the marriage when the husband realised his wife had been on a dating site for 2 years previously and after she had failed to have him ejected from the home with the failed AVO proceedings the husband may have treated her poorly. However her conduct on those occasions was poor as well.
The wife did not resile from the clear lie at paragraph 60 of her affidavit, that she had not had one person in the home since separation because of the husband’s behaviour. The wife said at paragraph 60(c):
…he would threaten to throw out any person who I may wish to invite into our home. I have not had one single person attend our home since separation.
I am satisfied her friend Mr D was at the home, post separation. I am satisfied as to that that from the husband’s exhibit 5 and a letter dated 12 March 2016 from the husband’s lawyers complaining about her having people in the home. Now that may have been unfair of him, may be an example of controlling and or difficult behaviour however it tells me the wife’s evidence is false on this issue given that separation occurred in 2014
The wife alleged the husband was emotionally controlling of her. After exploring what the wife meant by that it appears it was that she and the husband did not get on and that may be right. They are very different people. They had suffered a significant setback in not being able to have children. The husband was very focussed on money, earning income, paying off debt. The wife had been focussed on maximising their savings as she moved their savings around to maximise their interest rates. That was not the wife’s focus after it became apparent they would not have children.
At the AVO proceedings the wife admitted the husband did not control her in the day. The wife agreed in these proceedings that this was the truth at the time. The best her evidence got to in 2014 was that he was very critical of her, not controlling.
The wife would not admit that there were photographs depicting her in a sexual and attractive way on the Ashely Madison website. Her answer was “Maybe one was, not the other”. The photographs on that website were taken in 2012 at (omitted) Studios. The wife would not answer the direct question “You were dating other men in 2014”. The evidence points to her so doing hence the web site photographs. I find the wife was totally in control of the person she wanted to be.
The wife said “I wanted to separate in 2014 and felt deeply unhappy”. That this is true is clear. This is when the parties should have also physically separated. It is clear the wife was deeply unhappy in the relationship but to now blame the husband for that unhappiness, is simply not made out on the facts.
The wife spent some of the $130,000 she took at the separation, on courses which she set out in her affidavit at paragraph 35. $8,000 towards studying (course omitted), $10,000 towards a course in Melbourne, $4,000 towards a course, $2,450 towards a course and a study tour. $2,000 towards a further TAFE course, $2,000 towards studying materials and she still has one course to finish. Yet with all these courses and clearly having an interest and a capacity in (studies omitted), and the like she has not attempted to find work in these areas of interest and accomplishment. There is not one attempt by her to find employment or even work experience in her areas of interest and accomplishment.
The wife said she took personal trips, holidays I call them, to (countries omitted), post-separation. This is at a time she asserts the husband was controlling her every action and movement. Her evidence as to the husband’s control of her every action is not accepted by me.
The husband says he wanted his wife to work. He helped her with her resume. He wanted her to improve her skills in Excel, that he motivated her in this regard. That evidence has the ring of truth unlike the wife’s story. I accept that the wife did not want to work and wanted to be a mother which did not eventuate. I accept the husband’s evidence that he encouraged her business ideas, and with ideas of (employment omitted).
The husband said that he now believes she spent their income excessively and:
I didn’t know this at the time because she was doing the accounts, I found it out subsequently.
This is the reason he scrupulously went through the accounts and carried out a tracing exercise of expenditure for the hearing. He wanted to be precise, given what had been said about him by the wife. The husband said:
I wasn’t intrusive, I didn’t know about it until now.
It was put to the husband:
You made offensive remarks to your wife, you called her worthless, nothing.
The husband replied:
I’m speechless.
How could I say these things to my wife? I cannot say these things to my wife, I cannot undervalue my wife. I did the kitchen for her. She didn’t like the kitchen and wanted a new kitchen.
He was of the view that the wife had simply made these stories up about his treatment of her when she was driving, yelling at her, telling her she was hopeless, useless, knew nothing, humiliating her at the car yard, making her buy a dog he wanted that she did not want, locking her outside the home, all denied by him. He said:
It’s impossible I do this to my wife. She’s a countess, my roots are a (omitted).
He says he commented on the ironing because he wanted to use his expensive Philips iron that he bought from (country omitted) with him. He agreed that his wife did not know how to iron. The husband said he was stressed in the car on one occasion the wife said the husband yelled at her. She was driving far too close to the left and the other cars were honking at her. He did observe his wife crying, quite a lot towards the end of their relationship. He did not know why and he denied it was because how he treated her. He denied all the incidents of poor behaviour.”
The husband wishes to buy out his wife’s interest in the home. The net asset pool excluding superannuation is $770,000. If I agree with the add back position it is $839,592. The husband seeks to pay her $200,000 and 32% of his current superannuation.
I reject the husband’s evidence that he has a loan to his parents within the meaning of the State Act in New South Wales. His parents gifted, or provided some money to him which he used to offset interest on the mortgage. I accept that the wife took that that money at separation, however, there is sufficient equity in this home to take account of this.
He has repaid his parents this money in any event however it cannot be a joint debt. His evidence was clear and he freely admitted he told the wife his parents had gifted him this money. I do not accept he lied about this repayment to his parents rather omitted to include it in his earlier financial statement. I accept he believed he had a moral obligation to repay his parents and he has exercised that moral obligation. That does not mean the wife has some responsibility for the debt. However, I will take account the $130,000 the wife took at separation which included $80,000 from his parents. When the wife took that money she left $53,000 in the offset account.
The husband said he did not dispute that the wife’s parents had provided money to her but he had never seen the transactions until the court proceedings. I accept that evidence.
The husband has also paid $24,895 to his parents to repay them for his education. The wife has no responsibility for that debt
I do not accept the wife’s Counsels submissions that the husband saying the wife did 70 per cent of the household chores, he 30 or he doing 90 per cent of the renovations and her 10 was evidence of him in anyway diminishing her contribution. This was how he saw it.
These parties entered into a joint venture and neither can now resile from that that. The wife carried out the majority of the homemaking, to the best of her ability, the husband earnt the majority of the income. When it came to renovations they again, carried out those to the best of their ability.
The reality is, the wife has had the benefit of $151,000, post-separation, not $130,000. The wife was using the husband’s debit card post separation and he totalled up her expenditure on that to $21,000. The husband asserts that wife has had $151,000 either by direct debit or use of his card, post-separation. However given the wife is without a job or income the husband had a responsibility to support her post separation.
There is no dispute that post-separation the husband generated income of $37,583 which he used towards the mortgage. He asserts I ought to reduce the money he had the benefit of at separation of some $50,000 in the offset account by that sum.
This is a false submission. The husband as the only income earner had an obligation to pay the mortgage and support his wife at some level. I will not do the mathematical calculations the husband wants me to do however will have regard to his support of the wife in my deliberations.
Mr Dura says the wife is ahead on contribution because of the money her parents provided which is $242,000 whereas the husband’s was only $142,000. The husband asserts it is $180,000. That she has significant needs under section 75(2)[4] of the Act as she is 49 years of age and even if she obtained a job tomorrow, she would never earn the income her husband earns.
[4] Above, note 3.
The husband has a solid work history and skill base in the (employment omitted) industry. His current income is $163,000 per annum. It is unlikely that the wife’s income would ever approach this figure. I accept that there is clearly a s.75(2)[5] factor here in relation to the wife’s lack of work experience, not so much a lack of a capacity to work. The wife has a capacity to work, she has not exercised it.
[5] Above, note 3.
Mr Johnston for the husband said it is a seven and a half year relationship with no children. The husband sent his wife all the money he had acquired or earnt prior to their cohabitating in Australia. That I could not find that the wife has suffered a loss of self-esteem and thus is unable to work if only for the reason the glamourous photographs of herself in 2012 and 2014 posted on the Ashely Madison website. The wife would not concede she had had boyfriends. The wife would not concede the photograph taken by the husband of her friend Mr D holding a bag of dog food was taken at their home when clearly it was.
The wife would not leave the home despite having funds. The wife has refused on 3 occasions to be independently assessed by an expert in relation to her emotional and mental health functioning. I was asked to draw an inference that such conduct is supportive of a finding that such assessments would not support her story. I need not draw that inference as there is no evidence to support her incapacity to work due to emotional or mental health issues.

The wife asserted at paragraph 16 of her affidavit that the husband made no direct financial contribution to the acquisition of the property. That was false
The wife’s evidence on any issue of contest is not accepted by me and I prefer the husband’s evidence.
The joint balance sheet:
JOINT BALANCE SHEET

Ownership		Description	Applicant’s value	Respondent’s value
ASSETS
1. 1	J	Property A NSW	$ 1,275,000	$ 1,275,000
2. 2	H	(employer omitted) Employee Share Plan – 95 Shares Held	$ $2,689	$ 2,689
3.	J	Household Contents	$ 13,865	$ 13,865
4.	W	Bank 1 Account	$ 800	$ NK
5.	W	Bank 1 account	$ 300	$ NK
6.	W
7.	W
8.	W
9.	W
10.	W
11.	W
12.	W
13.	W
14.	W	Partial property settlement for wife	Nil	$151,000
15.	H	Partial property settlement for husband	$52,605	$15,022

LIABILITIES
J	Bank 1 Mortgage over Property A property	$ 522,162	$ 522,162
H	Bank 3 Loan	$ 33,122	$ 33,122
H	Bank 1 Loan	$ 23,847	$ 23,847

SUPERANNUATION
Member		Name of Fund	Type of Interest	Applicants value	Respondents value
H	BT Super for Life	Accumulation	$154,222	$ 154,222

I will not include as assets for distribution moneys the parties currently have in their bank accounts. It amounts to $1,100 only. Secondly they have been separated for a number of years and this is not matrimonial money.
The husband contends that I add back the $151,000 the wife has had use of post separation. The husband says he only add back on his side of ledger is $15,022 being the difference between moneys he took at separation, less the income he earned of $37,583.
I will not take that path. This exercise is artificial enough without adding back money expended. However these are clearly important figures to have regard to as either a contribution or a relevant 75(2)[6] matter in the exercise of my discretion.
[6] Above, note 3.
The husband’s debts. The Bank 1 loan and Bank 3 loans relates mainly to the repayment by him of money he repaid his parents which was part of the money the wife took at separation being $80,000. I will have regard to that debt in the exercise of my discretion.
Superannuation in the husband’s name is currently $154,222. It was $80,000 at separation.
The husband seeks some items be returned to him valued at $895. I will do so and otherwise the wife will keep the remaining furniture and household items valued at $13,000.
The mortgage on the property is $522,182. The net value of the home is $753,000 rounded up.
Otherwise there are no debts I find that would reduce the net liquid assets and the pool for division is:
a)Home (net ) $753,000
b)Husband’s shares $2,689
c)Furniture wife $13,000
d)Furniture husband $865
This gives a matrimonial pool for division of $769,554 rounded up $770,000.
My task is now to engage in the four step approach set out in s.79[7] of the Act and more fully explored in decisions such as Ferraro,[8] Coghlan[9] and Pierce.[10]
[7] Family Law Act 1975 (Cth) s 79.
[8] Ferraro & Ferraro (1992) 16 FamLR 1.
[9] Coghlan & Coghlan (2005) 193 FLR 9.
[10] Pierce & Pierce [1998] FamCA 74.
I find during the marriage and up to separation, the parties made an equal contribution to their current liquid assets. For the wife the moneys from her parents of $242,000 used to purchase a car and towards the purchase of the former matrimonial home. The wife sold the Motor Vehicle E post its purchase for $30,000 and used some of these monies to renovate the kitchen
For the husband contributions of $150,000 rounded up acquired pre cohabitation and sent to Australia which was used to fund the purchase of the home and in addition his income post co habitation.
The wife carried out the majority of the homemaker duties as the husband was at work and the husband carried out the majority of the gardening and outside maintenance of the home during the marriage.
They each contributed equally to the kitchen renovations.
Post-separation, the husband has made a superior contribution to the wife in that she has had the benefit of $151,000 of joint money post separation which included monies he had received from his parents since repaid by him and for which he has now has a debt. This money whilst in the offset account had reduced the interest paid on the mortgage by a small compass.
Secondly, the husband has fully supported the wife and the former matrimonial home since separation ensuring that the mortgage on an interest only basis was paid, the rates paid and has paid the wife spouse maintenance. The wife has been in sole occupation of the former matrimonial home due to the support of the husband and has had ample opportunity to obtain qualifications for employment, obtain employment or at a minimum make an attempt to find employment.
The wife’s sole occupation of the former matrimonial home is also a relevant factor under the Act.
I find the husband has made a superior financial contribution post-separation and I will allow him 10 percent cent some $77,000 of the net liquid assets.
In relation to s.75(2)[11], at first blush the wife clearly has needs under section s.75(2)[12] factors. At present she is a spouse unable to support herself as she has no employment. However this is not by reason of care of a child, ill health or for any other inability to work. The wife has simply made no attempt to find work despite many qualifications being obtained by her in the last 4 years. The wife has little interest in working and this is not a relevant factor under s.75(2)[13] of the Act.
[11] Above, note 3.
[12] Above, note 3.
[13] Above, note 3.
Having so found it is also the case that even if she obtained a job today it is unlikely she will ever achieve the income the husband has achieved to date of in excess of $160,000 per annum.
Secondly it will take her some time to find employment given her age and lack of a work history and thus there is on the evidence a relevant s.75(2)[14] factor that I must have regard to in the wife’s case.
[14] Above, note 3.
I will also give the wife 50% of the husband’s superannuation some $77,000. One reason it has grown since separation to almost double its value at separation is the value of the superannuation at separation to which she contributed.
Secondly the reality is the husband’s superannuation will continue to grow and the wife is unlikely to ever achieve his level of superannuation at the end of their working lives and the husband is some years younger than the wife.
Having regard to my finding in relation to an equal division of superannuation and the wife’ needs under section 75(2)[15] of the Act I will adjust her past contribution based entitlement by 15% or some $115,000 of the net liquid assets.
[15] Above, note 3.
This results in a division of the parties assets of 55% to the wife and 45% to the husband a difference of $77,000 in the wife’s favour.
The pool for division is $770,000 rounded up.
55% is $423,500 to the wife and $346,500 to the husband.
The wife will retain the furniture which is valued at $13,000. Thus in order for the husband to buy out his wife’s interest in the property he will need to pay her $410,000. The husband seeks to retain the home and I will give him that opportunity.
In the event the husband is unable to achieve this buy-out of the home, it is to be sold.
I will order all joint accounts to be closed and any proceeds which will be of small compass to be equally divided between the parties.
I find these orders are just and equitable in all the circumstances. I will immediately discharge the order for the husband to pay the wife spousal maintenance.

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 5 September 2018

[2018] FCCA 2471

5 September 2018

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