SHELBOURNE & SHELBOURNE

FAMILY COURT OF AUSTRALIA

SHELBOURNE & SHELBOURNE

[2019] FamCA 122

FAMILY LAW – PROPERTY – Short marriage – overwhelming contributions by one party at the start of the relationship – contributions to the welfare of the family by moving from another country - contribution during relationship to children other than of the marriage per s 75(2)(o) – post separation contribution to children other than of the marriage per s 75(2)(o).

FAMILY LAW – COSTS – Refusal to discharge dollar for dollar order where the party ceased making payments to his lawyer following the making of the order and pending trial but still incurred legal costs during that period.

Family Law Act 1975 (Cth) ss 75(2), 79 and 117

Bevan v Bevan (2013) 49 FamLR 387

Dickons & Dickons [2012] FamCAFC 154

Elford v Elford 55 FamLR 247

In the Marriage of Robb (1994) 18 Fam LR 489

Stanford v Stanford (2012) 247 CLR 108

Strand & Strand (No 2) [2018] FamCAFC 247

APPLICANT:

Ms Shelbourne

RESPONDENT:

Mr Shelbourne

FILE NUMBER:

SYC

4897

2017

DATE DELIVERED:

8 March 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Gill J

HEARING DATE:

18 February 2019 - 1 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms R Dart

SOLICITOR FOR THE APPLICANT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE RESPONDENT:

Mr P Batey

SOLICITOR FOR THE RESPONDENT:

Fortis Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms C Lioumis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That by way of alteration of property pursuant to s 79 of the Family Law Act 1975, the Husband pay to the Wife the sum of $191,305 within 60 days of the date of these Orders.
That in the event that the Husband fails to pay to the Wife the amount referred to in the preceding Order within the specified time the Husband shall do all things and sign all documents necessary to sell the property situated at and known as O Street, Suburb T, New South Wales, being Certificate of Title Folio Identifier … ("the O Street property") by private treaty.
That in the event that there is disagreement between the parties as to:
(i)The nominated real estate agent, the parties shall jointly write to the President of the Real Estate Institute of New South Wales who shall appoint an Agent to act on the parties' behalf;
(ii)The solicitor/conveyancer acting on the sale, the parties shall jointly write to the President of the Law Society who shall appoint a solicitor to act on the parties' behalf; and
(iii)The parties shall be equally responsible for the costs of such appointments and/or valuations.
That in the event that the O Street property is not sold by private treaty within two months from the date of listing the property for sale, the Husband shall forthwith do all things and sign all documents necessary to list the said property for sale by public auction within three weeks of the listing for public auction.
In the event that the said property is not sold by public auction when first offered for sale by auction, the said property shall thereafter be resubmitted for sale by public auction pursuant to the provisions of these Orders at intervals of not more than one month until such property shall eventually be sold and the Husband is to forthwith do all acts and things necessary including the execution of all documents necessary for the sale of the said property by public auction and in particular are to:
(i)Place the said property with an auctioneer or in the default of agreement an agent as nominated by the President of the Real Estate Institute (hereinafter called the Auctioneers) for the sale of the property by public auction at the earliest possible date;
(ii)Execute all documents requested by the Auctioneers for the sale of the said property;
(iii)Request the Auctioneers to recommend a reserve price to be placed on the said property for the purpose of the auction sale and accept such recommended price;
(iv)Pay to the Auctioneers, or as may be directed by the real estate agent, any sums requested for advertising expenses in relation to the auction.
(v)Co-operate in every way with the Auctioneers in relation to the auction of the said property.
(vi)Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the Auctioneers as to the acceptance of a price less than the reserve price.
(vii)Execute the Contract for Sale.
(viii)Execute all other documents necessary to complete the sale.
That the Husband shall do all acts and things necessary to procure that, upon the sale of the o Street property, the proceeds of sale shall be paid in the following manner and priority:
(i)Payment of agent's commission and advertising expenses and legal expenses of the sale.
(ii)Discharge of the mortgage to the Westpac Banking Corporation, registration number …54.
(iii)Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.
(iv)The balance then remaining to be paid to the Wife pursuant to Order 1 above.
It is noted that the provisions of s 117B apply to these Orders.
That within 30 days the Husband do all things and sign all documents necessary to transfer to the Wife the Motor Vehicle 1 registration number … into the Wife's sole name and the Wife shall indemnify and keep indemnified the Husband in relation to all liabilities in respect of the said motor vehicle, whenever and howsoever arising.
Unless already provided to the Wife, within 30 days of these orders the Husband provide to the Wife the items contained in columns 1, 2 and 4, and the items marked with a tick or a cross in column 3 (excepting the items marked as installed) of Exhibit W9.
Within 56 days of the making of these Orders the Wife is to take all necessary steps to secure the sale of her engagement ring and to distribute the proceeds as follows:
(i)The payment of any costs associated with the sale;
(ii)The payment of 85 per cent of the proceeds to the Husband;
(iii)The balance to herself.
In the event that the ring is not sold within the 56 days, the Wife is to provide the ring to the Husband who is thereby appointed trustee for the sale of the ring and he is then required within 56 days to take all necessary steps to secure the sale of the engagement ring and to distribute the proceeds as follows:
(i)The payment of any costs associated with the sale;
(ii)The payment of 15 per cent of the proceeds to the Wife;
(iii)The balance to himself.
In the event that the ring is not sold in accordance with the above Orders then the Husband is to return the ring to the Wife who, in such an event, is declared to be the owner of the ring.
That as between the Husband and Wife, and except as otherwise provided in these Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:
(i)All personal property otherwise in his/her respective possession or control.
(ii)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
(iii)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
The Wife is solely responsible for and shall pay any past or future tax liability incurred in her sole name or in the name of any entity in which she has an interest and shall indemnify the Husband and keep him indemnified in respect of any such liability.
The Husband is solely responsible for and shall pay any past or future tax liability incurred in his sole name or in the name of any entity in which he has an interest and shall indemnify the Wife and keep her indemnified in respect of any such liability.
That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
These final orders do not discharge the Orders made pursuant to s 117 of the Family Law Act 1975 by the Honourable Justice Loughnan on 5 December 2018.
In the event that a party seeks an application for costs that party is to file any relevant application and material in support within 28 days of the making of these Orders in accordance with Rule 19.08.
The Parties’ applications and responses are otherwise dismissed.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4897 of 2017

Ms Shelbourne

Applicant

And

Mr Shelbourne

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to this matter are Ms Shelbourne, the Applicant Wife, and Mr Shelbourne, the Respondent Husband. They were in a relationship for approximately four years, marrying in 2013 after the Wife moved from the USA to Australia in support of the relationship and separating in April 2017. Prior to the relationship the Wife had two children, C and D. C and D were cared for by both of the parties during the relationship. After the relationship ended they lived primarily with the Husband, an arrangement that will continue, although to a lesser extent, into the future following the making of parenting orders by consent on 20 February 2019. The parties had another two children, E and F who, like C and D, will live with the Husband.
Much of the pool of property is agreed by the parties. The primary areas of disagreement relate to a debt alleged to be owed by the Husband to his parents, and about the Husband’s involvement in a business, Q Pty Ltd, owned by his parents.
While the parties agree that at the start of the relationship the property brought in by the Husband significantly outweighed that brought in by the Wife, they disagree about the extent and significance of contributions made by the other during the relationship, and about the significance of their circumstances for their futures.

Orders Sought

The orders sought were set out in full in the Wife’s Case Outline Document[1] (although there it was not identified as to the division sought) and Husband’s Case Outline Document.[2] The orders sought that are relevant to the property proceedings are provided as appendixes to this judgment.
[1] Applicant Wife’s Case Outline filed 8 February 2019
[2] Respondent Husband’s Case Outline filed 11 February 2019
In general terms, the Wife sought the payment of an amount so as to effect a division of property on a 70-30 basis in the Husband’s favour. This was said to reflect a 25 per cent share to the Wife on the basis of contributions, and a further 5 per cent adjustment on the basis of s 75(2) factors.
The Wife sought the transfer of motor vehicle 1 from the Husband to the Wife. This was agreed by the Husband.
Although the Wife had sought spousal maintenance, this was not pursued.
The Wife sought the continuation of a dollar for dollar costs order made on an interlocutory basis by Loughnan J on 5 December 2018.
The Wife sought provisions regarding indemnities and tax liability and a costs order against the Husband.
In general terms, the Husband sought that he pay the Wife an amount by way of alteration of property, minus any sums paid previously to the Wife by way of partial property settlement, reflective of a 90-10 split in his favour. This was said to be on the basis of contributions by the parties that favoured the Husband in that proportion, and the lack of a justification for a further adjustment on the basis of s 75(2), by virtue of the Husband’s future care of all four children counterbalancing any advantage otherwise enjoyed by him in relation to his financial position.
The Husband sought that the Wife pay the Husband’s costs from these proceedings.

Documents relied upon

At the start of the proceedings the parties identified the evidence they sought to rely upon in relation to both the children’s and property disputes. The children’s dispute resolved on day three of the trial. The property dispute then focussed on a narrower range of material.
The parties also prepared and, as the trial continued, refined a joint balance sheet.

Applicant Wife

The Applicant Wife identified the following documents[3] as relied upon:
[3] Applicant Wife’s Case Outline filed 8 February 2019
1.Initiating Application filed 1 August 2017;
2.Wife’s Financial Statement filed 29 January 2019;
3.Affidavit of Ms Shelbourne filed 2 July 2018 (together with the exhibits Ms S-1 to Ms S-74);
4.Affidavit of Ms Shelbourne filed 29 January 2019;
5.Affidavit of Ms P filed 2 July 2018;
6.Affidavit of Ms R filed 2 July 2018;
7.Affidavit of Mr S filed 2 July 2018;
8.Affidavit of Ms U filed 2 July 2018;
9.Affidavit of Ms V filed 2 July 2018;
10.Affidavit of Ms H filed 2 July 2018;
11.Affidavit of Mr H filed 2 July 2018;
12.Affidavit of Dr W filed 29 January 2019;
13.Report of Dr X dated 19 February 2018;
14.Z Group Valuation Report dated 5 July 2018; and
15.Affidavit of Mr Y filed [TBA].
Of this material, the Wife focussed upon the material contained in her two affidavits, her financial statement, the affidavit of her mother, and upon a reference in Dr X’s report that related to the Husband’s relationship with Q Pty Ltd.

Respondent Husband

The Respondent Husband identified the following documents[4] as relied upon:
[4] Outline of Case Document filed 11 February 2019
1.Affidavit of Mr Shelbourne filed 25 January 2019;
2.Financial Statement filed 25 January 2019;
3.Affidavit of Mr Shelbourne filed 2 July 2018;
4.Financial Statement filed 2 July 2018;
5.Affidavit of Mr AA filed 2 July 2018;
6.Affidavit of Mr HH Shelbourne filed 6 September 2017;
7.Affidavit of Ms JJ Shelbourne filed 6 September 2017;
8.Affidavit of Ms KK Shelbourne filed 5 September 2017;
9.Affidavit of Ms KK Shelbourne filed 7 September 2017;
10.Affidavit of Mr LL Shelbourne filed 6 September 2017;
11.Affidavit of Ms BB filed 6 September 2017;
12.Affidavit of Ms CC filed 23 August 2018;
13.Affidavit of Mr MM Shelbourne filed 7 November 2018;
14.Report of Dr X dated 12 March 2018;
15.Z Group Valuation Report dated 5 July 2018; and
16.Valuations by DD Group [not yet received].
Of this material the Husband focussed upon his two affidavits, his financial statement of January 2019 and the affidavits of his parents.

Principles

In order to make an adjustment of property it must be decided that it is just and equitable to adjust the property interests at all,[5] and to adjust the property in that particular manner.[6] Both parties accepted that an adjustment should occur (some adjustment already having taken place on an interim basis).
[5]Stanford v Stanford (2012) 247 CLR 108 per French CJ, Hayne, Kiefel and Bell JJ [35]
[6]Bevan v Bevan (2013) 49 FamLR 387 per Bryant CJ and ThackrayJ [86]
It is necessary to identify “according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property.”[7] In relation to items of substance this was largely uncontroversial, the parties focussing their attention on the debt owed by the Husband to his parents, and the Husband’s interest in Q Pty Ltd, or alternatively the Husband’s ability to treat Q Pty Ltd as a financial resource.
[7]Stanford [37]
The parties’ balance sheet is set out later in the judgment.

Credibility

Each party challenged the credibility of the other. The prime examples are set out below.
A dispute arose as to the manner of purchase of Motor Vehicle 1. The Wife wrongly alleged that it had been purchased with cash (in support of her allegation that the Husband has access to significant amounts of cash from Q Pty Ltd). It was however purchased by cheque.[8] The Wife accepted that she was not present when Motor vehicle 1 was bought, did not know where it was bought, nor have any documents regarding its purchase. She could not recollect how she had come to assert that it was bought with cash. She denied that the assertion as to cash was a lie, putting it down to confusion. The lack of any basis for the Wife to make the assertion leads to the conclusion, in this instance, that she was being deliberately or at least recklessly untruthful about this aspect.
[8] Exhibit H4
A challenge also arose as to the Wife’s financial circumstances following separation. At [502]-[506] the Wife asserted that she had very little access to financial support following separation on 11 April 2017, being without cash, and having limited access to a credit card. This, she said, was alleviated by interim orders made in September 2017.
In cross-examination the Wife was forced to concede that as early as 11 April 2017 she had access to cash held in the parties’ joint account. Although she said that she was unable to draw from this account out of fear of the Husband, she had withdrawn $7,000 from the account in either April or May of 2017. Sitting uncomfortably with her trial affidavit, the Wife’s affidavit of 1 August 2017 revealed that the Wife had also removed approximately $11,000 on 28 June 2017.
The Wife then accepted that she was not without cash following separation in April 2017. Further, it was the case that she could have withdrawn funds from the child maintenance account held in the USA for C and D. While the Wife explained that it was difficult to withdraw funds from this account, her later evidence indicated that, despite some difficulties, money was able to be withdrawn from the account.
These matters meant that the evidence given by the Wife of being with little financial support and no cash following separation was deceptive.
They also point to the necessity to be cautious in accepting, where unsupported, the evidence of the Wife.
A dispute also arose as to the purchase of the Motor vehicle 2, the Wife asserting that the Husband had paid for the vehicle, and the Husband denying it, saying that, in accordance with its registration it was the property of Q Pty Ltd, despite the Husband’s personal use of the vehicle.
The Wife was challenged as making up evidence when she asserted that Motor vehicle 2 was purchased with a $39,000 cheque and $8,000 or $9,000 cash. Exhibit W4 supported the Wife’s account and, when cross-examined, the Husband had to accept this to be the case. Exhibit W4 demonstrated that the cheque had come from the Husband’s account.
The Husband insisted that the cash for the vehicle had come from his parents, and that although the $39,000 had come from his account, it was as a loan by him to Q Pty Ltd, with Q Pty Ltd then purchasing the vehicle using the loaned funds. He then identified this loan as being one he had earlier referred to in his oral evidence (without identifying that it was for the vehicle) as a loan for $30,000 which he had previously said had taken place probably in about 2013. Although reference was made to the Husband receiving, for a time, $200 payments from Q Pty Ltd each week to repay a loan, no definitive evidence was given as to whether this loan has been repaid or not.

The denial that the Husband had paid for Motor vehicle 2 was somewhat misleading (even if this was in truth a loan). He drew the money from his account to pay the bulk of the purchase price, uses the vehicle as his own, while maintaining that it is the vehicle of his employer, Q Pty Ltd. He now says that he has lent Q Pty Ltd the money for the purchase of the vehicle. The issue of ownership of Motor vehicle 2 is dealt with later as part of the disputed items on the balance sheet.
Similarly the Husband was challenged about the ownership of the Kubota tractor used predominantly on the property at L Town. It is in his father’s name, and the Husband denied having paid money towards it. However, the Husband’s Credit Union account showed on 30 September 2013 the payment of approximately $14,000 described as “tractor”[9]. The Husband asserted that he thought that this was the payment for a sprayer (an item that does not explicitly appear on the balance sheet).
[9] Exhibit W5
The Husband was also challenged regarding his financial disclosure. Exhibit M12 contained a large amount of correspondence between the solicitors for each of the parties regarding disclosure. The inference to be drawn from this material is that the Husband’s compliance with his disclosure obligations was tardy, delayed and, from the conduct of the trial, portions were only presented at the trial.
The parties had been involved together in the construction of the family home at L Town. Despite the Wife asking for all documents in relation to L Town, the Husband accepted that he has never provided building contracts, receipts or invoices in respect of the construction of the home and the improvement of the property.
These matters call for caution to be exercised in respect of unsupported evidence given by the Husband.

What are the existing interests of the parties?

Balance Sheet

ASSETS
Ownership		Description		Wife's value	Husband's value
1	Joint	Credit Union Account: …70 S7.1 Access Mr & Ms Shelbourne (as at 31 Aug 2018)		E 115	E 115
2	Wife	Westpac Acc. …74		E 155	E 155
3	Wife	Child Support Account (…USA Child Support Account: #...03)		E 1,461	E 1,461
4	Wife	Disney Shares		E 10,000	E10,000
5	Wife	Motor vehicle 3		E 2,250	E 2,250
6	Wife	Household Contents		E 500	E 500
7	Wife	Jewellery		E 3,000	E 25,000
8	Wife	Legal fees paid (including counsel's fees and disbursements) (Funded by partial property settlement to the value of $100,000 paid by husband)		E120,672	E120,672
9	Husband	Legal fees paid (including counsel's fees and disbursements) (per 19.04 notice dated 24.1.19)		E202,868	E202,868
10	Husband	K Street, L Town (H’s ½ share of $2,500,000)		1,250,000	E 1,250,000
11	Husband	O Street, Suburb T		1,200,000	E 1,200,000
12	Husband	PP Street, Suburb T (H’s ½ share of $1,850,000)		925,000	E 925,000
13	Husband	NN Street, Suburb EE, VIC		612,500	612,500
14	Husband	Credit Union Account: …70 S7 Access Mr Shelbourne (as at 11 Feb 2019)		E 1,745	E 1,745
15	Husband	Credit Union Account: …84 S7 Access ST & Mr Shelbourne Rent (as at 11 Feb 2019) (Half share only)		E 1,007	E 1,007
16	Husband	Credit Union Account: …70 S96 Offset Savings Mr Shelbourne (as at 11 Feb 2019)		E 3,547	E 3,547
17	Husband	Credit Union Account: … S7.1 Access Mr MM & Mr Shelbourne		N/K	0
18	Husband	Credit Union Account: …S7.1 Access Mr MM & Mr Shelbourne, Mr BB (1/3^rd share only) (as at 11 February 2019)		E 140	E 140
19	Husband	Credit Union Account: …68 – Mr Shelbourne		N/K	0
20	Husband	Credit Union Account: …61 – Mr Shelbourne		N/K	0
21	Husband	Credit Union Account: …S96 Offset – Mr Shelbourne		N/K	0
22	Husband	Credit Union Account: S7 – Ms JJ & Mr Shelbourne		N/K	0
23	Husband	Credit Union Account: S96 Offset – Ms JJ & Mr Shelbourne		N/K	0
24	Husband	Motor vehicle 1		E 31,000	E 31,000
25	Husband	Motor vehicle 2		E 40,000	0
26	Husband	Motor vehicle 4		E 1,000	E 1,000
27	Husband	45HP Tractor, Front End Loader and Backhoe bucket		E 40,000	0
28	Husband	Tractor Implements, including post hole digger, slasher and auger		E 4,350	0
29	Husband	Utility vehicle		E 20,000	0
30	Husband	Motorcycle stored in US (USD$5,000 = AUD$7,038)		E 7,038	0
31	Husband	Horse Float		N/K	0
32	Husband	Boat and Trailer		25,000	E 25,000
33	Husband	Truck		E 20,000	E 20,000
34	Husband	Motorcycle 2		E 16,000	E 16,000
35	Husband	Jetski		E 4,000	E 4,000
36	Husband	Q Pty Limited ACN …		N/K	0
37	Husband	2004 Brown/Black mare 1/3 value to husband		E 1,000	E 1,000
38	Husband	2012 Brown mare 1/3 value to husband		E 500	E 500
39	Husband	2013 Brown/Black mare (sold for $700 at auction) 1/3 value to husband		E 667	E 677
40	Husband	2015 Bay gelding 1/3 value to husband		E 334	E 334
41	Husband	2017 Chestnut colt 1/3 value to husband		E 3,334	E 3,334
42	Husband	Mare 7 year old – (broken down) 1/3 value to husband		E 250	E 250
43	Husband	Household contents		E 75,000	E 20,000
44	Husband	ANZ Qantas Frequent Flyer (11 Feb 19)		6,948	E 6,948
45	Husband	Jewellery		1,000	1,000
Total		$ 4,632,381	$ 4,488,003

ADDBACKS
Ownership		Description		Wife’s value	Husband’s value
46	Wife	Legal Fees paid by the wife in the criminal proceedings at the Local Court in 2017 charged on the Husband’s credit card		10,197
Total		$ 0	$ 0

LIABILITIES
Ownership		Description		Wife’s value	Husband’s value
47	Wife	Income Tax		E 53	E 53
48	Wife	TT State Revenue Department		E 30,000	NIL
49	Wife	Loan from Ms P		E 21,340	E 21,340
50	Wife	Legal Fees		E 262,835	E 263,835
51	Husband	Home Loan Acct #88 Mr Shelbourne, (11 Feb 2019) (O Street)		E 390,122	E 390,122
52	Husband	Home Loan Acct #04 Mr Shelbourne, Ms JJ Shelbourne, Mr MM Shelbourne (11 Feb 2019) (Total Balance $419,241 – L Town) (H’s ½ share of $419,241)		E 209,620	E 209,620
53	Husband	Home Loan Acct #98 Mr Shelbourne (11 Feb 2019) (O Street)		E 147,319	E 147,319
54	Husband	Home Loan Acct #22 Mr Shelbourne (11 Feb 2019) (O Street)		E 51,452	E 51,452
55	Husband	Home Loan Acct #63 Mr Shelbourne, Mr MM Shelbourne, Ms JJ Shelbourne, (11 Feb 2019) (Total Balance - $746,488 – Abercrombie Street) (H’s ½ share)		E 373,244	E 373,244
56	Husband	Credit Union Property Loan Acct …29 (as at 11 Feb 2019)		E 276,322	E 276,322
57	Husband	ANZ Frequent Flyer Black Acct …50 (as at 20.8.18)		E 4,106	E 0
58	Husband	ANZ Frequent Flyer Black Acct …68 (as at 11 February 2019)		E 1,292	E 1,292
59	Husband	Loan from Mr MM and Ms JJ Shelbourne		319,000	E 600,045
60	Husband	Loan – Mr HH Shelbourne (10 December 2018 to settle payment due to Ms Shelbourne per Court Orders)		E 10,000	E 10,000
61	Husband	Legal Fees – from December 2018 anticipated for hearing dated 15 Feb 2019		E 152,000	E 152,000
62	Husband	CGT Payable on sale of O Street Suburb T		E 123,617.32	E 123,617.32
Total		$ 1,831,993	$ 2,436,099

SUPERANNUATION
Member		Name of Fund		Type of Interest	Wife’s value	Husband’s value
63	Wife	Super 1		Accumulation	E 4,691	E 4,691
64	Husband	Suoer 2 …02 (as at 11.2.19)		Accumulation	E 100,998	E 100,998
Total		$ 105,689	$ 105,689

FINANCIAL RESOURCES
Ownership	Description		Wife’s value	Husband’s value
Total	$ 0	$ 0

NET TOTAL ASSETS (including Superannuation)

$ 2,489,365

$ 1,983,628

Disputed items on balance sheet

Item 7: Jewellery

The Husband estimated $25,000 as the value of the Wife’s engagement ring. The Wife agreed to a value of $3,000. The Wife indicated that she did not wish to retain this item.
Given the lack of evidence about the value of the ring, orders will be made for its sale and for the division of the proceeds in the same percentage as the overall division.

Items 19-23 : Community First Credit Union Accounts (5) Ownership: Husband

The dispute is between the Husband’s assertion that the accounts are of nil value versus the Wife’s position that the value is not known.
These accounts include:
1.Credit Union Account: #68 – Mr Shelbourne
2.Credit Union Account: #61 – Mr Shelbourne
3.Credit Union Account: 47 S96 Offset – Mr Shelbourne
4.Credit Union Account: 92 S7 – Ms JJ & Mr Shelbourne
5.Credit Union Account: 51 S96 Offset – Ms JJ & Mr Shelbourne
The Husband attributes a value of $0 and says that there are “no accounts” for these items.
The Husband says that these accounts were closed and had little or no money at the time and has no records, hence the dispute is in the context of a lack of production of documents to support the status of the accounts. The Wife is aware that these accounts were active in 2013, however the Husband has provided no documents in relation to closure of these accounts.
The state of the evidence does not allow a conclusion that the accounts are of any significant value.

Item 25: Motor vehicle 2

This is the vehicle primarily used by the Husband. It was also used by the Wife during the relationship. It is the vehicle in which he transports the children. It is used as though it is his own.
The Wife Estimates the value to be $40,000.
The Husband attributes a value of nil as Motor vehicle 2 is registered to Q Pty Ltd. The Husband and his father assert that it is also owned by Q Pty Ltd.
As noted above (under the heading of ‘credibility’), the purchase was financed, at least as far as $39,000, from the funds of the parties. The Husband asserts that this was as a loan to his employer. The evidence of repayment was vague, the Husband’s father being unable to say whether the loan (from 2013) has been repaid at all.
Under those circumstances Motor vehicle 2 should be taken as owned by the Husband if not in law, in equity. However I was not directed to evidence as to what the current value of this might be, accordingly I can conclude the husband has an equitable interest in a vehicle purchased in 2013 for about $48,000, the value of which is currently unknown.
The circumstances of the acquisition of Motor vehicle 2 and use by the Husband also point to a relationship with Q Pty Ltd that is not simply described as employer employee.

Item 27: 45HP Tractor, Front End Loader and Backhoe bucket - Item 28: Tractor Implements, including post hole digger, slasher and auger - Item 29: Utility vehicle

The Wife estimates the value of the tractor to be $40,000.
The Wife estimates a value of the implements at $4,350.
The Husband attributes a value of nil as he says that the tractor is owned by his father. It is registered in the name of the Husband’s father, but there is still a question of ownership.
The Wife estimates the Utility vehicle at a value of $20,000.
The Husband values this item at nil as he says it is owned by his father. The Wife disputes this.
The items are used primarily on the L Town property, although there was a vague reference to some unspecified use by Q Pty Ltd. As identified above, the Husband contributed a sum of approximately $14,000 to an item described as “tractor” on his bank records, although he says this was for a sprayer (an item not specifically appearing on the balance sheet).
While it may be accepted that the Husband’s father has an interest in the tractor and equipment, the Husband also has an interest in the tractor, although the value of the interest is unknown. Given that the tractor, and any interest in it, forms a very small aspect of the pool of property, it is not significant to the overall justice and equity of the case, other than to recognise that any adjustment to the Wife will not be calculated on the value of this interest, and it will remain a benefit in the Husband’s hands.

Item 30: Motorcycle 1 stored in US (USD$5,000 = AUD$7,038) Ownership: Husband

The Wife estimates a value of $7,038.
The Husband values this item at nil as he says it is registered to and owned by Mr LL Shelbourne. The Husband denies that he paid for the bike or that he has any interest in it.
The Wife disputes this and says that the Husband paid USD$8,000 for this motorcycle, and asserts that it is registered in his brother’s name due to the laws of QQ State.
This matter falls to be determined on the credibility of the parties. Although there are questions generally as to the credibility of each of the parties, the deficiencies in the Wife’s credibility means that her allegation that the Husband owns this item is not made out.

Item 31: Horse Float

The Wife indicates that the value of this item is unknown (“N/K”).
The Husband attributes a value of nil as the Husband says the horse float is owned by his father. The Wife disputes this. Absent specific challenge of the Husband or his father on this item, the horse float should not be taken as the property of the Husband.

Item 36: Q Pty Limited ACN … Ownership: Husband

The Wife did not know the value of the business.
The Husband attributed a value of nil, asserting that the business is owned by his parents and thus no value to him. The Husband has never been a director or a shareholder of the business.
The Husband denied that he took over the ownership of the business when his Father retired. However, in the preparation of the report for the children’s matter he told the Single Expert Dr X that he took over the business 10 years ago.
He conceded that he had lent the business funds on three occasions. These occasions were once for a welder, which resulted in him receiving $200 per week repayments for an unknown period, once in the sum of $10,000 and once in the sum of $30,000 (which he amended to being a loan for $39,000 for Motor vehicle 2).
The Husband thought that the $30,000 loan was made in 2013. He was unable to say when, or for how much the welder loan was for.
The position is then that the Husband is neither a shareholder nor a director, but has claimed to have the ownership, and has acted in a manner that indicates that he is not merely an employee. It is not, at present, his property. However, there is reason to treat it in the alternative manner as suggested for the Wife, that is, as a financial resource that he is able to draw upon. That capacity to treat as a resource lacks any definitive measure. The Wife’s suggestion that the Husband’s position could be ascertained from his position at the start of the relationship in terms of property, and failure to explain how he had come by so much property, was not explored to an extent so as to allow any particular inference to be drawn.
The other aspect regarding his use of Q Pty Ltd related to contested evidence as to the Husband’s bringing home and use of cash received from the business.
The Husband accepted that he had brought cash back from the business into the family home, as asserted by the Wife. He denied that he had used this cash to pay off credit cards, saying that the credit cards were paid by transfer from two of the credit union accounts. He then conceded that on occasion the credit cards were paid in cash, although he said that this was from his sale of motor vehicles and a motorcycle. He also accepted that he had paid cash for work done on the property, but denied that the source of this cash was Q Pty Ltd.
In this area of the use of cash and the relationship with the business, the credibility of both of the parties was deficient. The Wife’s allegation that Motor vehicle 1 had been purchased with cash was wrong. The Husband’s denials that he had paid for Motor vehicle 2 were, at best, deceptive. The Husband’s late and somewhat vague accounts about loans to and payments from the business significantly undermined his account that he was a mere employee. While the Husband’s father insisted that the Husband was only authorised to sign cheques, Exhibit W11 shows that the Husband was in fact a signatory to the account and authorised to operate the company’s internet banking.
Despite his initial denial, the Husband then corroborated the Wife’s account that he brought home cash from the business. He accepted cash payments for the credit card and for the work on the property. I do not accept that these were merely from his sales of vehicles. Despite the limitations on the Wife’s credibility, given this state of the evidence I accept that the Husband has received cash payments form the business that do not reflect his status as a mere employee.
Although not an owner of Q Pty Ltd, the business is a financial resource for the Husband, allowing a standard of living that exceeds his work as a panel beater in the business.

Item 43: Household contents Ownership: Husband

The Wife estimated a value of $75,000.
The Husband estimated a value of $20,000.
Neither party is able to establish a value for the household contents. While they could together be taken to be at least the value of the Husband’s concession, the parties have already divided much of the contents in a ratio the value of which is unknown. Absent evidence to establish such, the household contents should not be taken as significant in terms of value. They are, however, significant in the sense that each of the parties seeks at least a share of the household contents.
The Wife seeks the items contained on the list at Exhibit W9, or alternately a mechanism whereby she compiles two lists and the Husband chooses from one list.
The evidence supported the idea that the Wife has obtained many of the items on the lists at Exhibit W9. The disputed part of that list is the third column. The Husband agrees to the Wife receiving, or asserts that she has received a significant number of items on that list.
Under those circumstances it is difficult to see how the fall-back position of creating two lists could work. Such a mechanism is reliant on the person who compiles the lists making equivalent groups in the knowledge that the other party could choose either, thus rendering the process fair. Here the Wife has obtained a significant number of items already. If two lists are compiled, one must contain the items that the Wife has already obtained. Choice of that list would then involve the return of the items currently held by the Wife, rendering the process at best clumsy.
The evidence does not otherwise allow a reasoned determination of the division of the household goods. I cannot determine whether or not each party has obtained their fair share, or more, or less.
Under those circumstances orders should not be made (as it could not be determined that they are just and equitable) other than in accordance with the concessions made by the Husband as to what the Wife has and can receive as identified at Exhibit W9.
The Husband’s evidence set out what, of the household goods the Wife holds, and also what he accepts she should receive.

Conclusions as to property

From the balance sheet, and from the resolution of the disputed matters, the property held by the parties may be reckoned. Noting that this process is not an accounting exercise, it is not necessary to include in the reckoning items on the balance sheet that are not greater than $500. Given the size of the pool, such items have no appreciable effect on a division of property.

Disregarding jewellery and paid legal fees, the Wife holds approximately $44,700 (including Motor vehicle 1 she currently possesses that is to be transferred to her). Her paid legal fees are approximately $121,000 (funded in part from a partial property settlement previously received by the Wife in the sum of $100,000).
Disregarding paid legal fees and the Husband’s share of the Tractor, the Husband holds approximately $4,072,000. His paid legal fees are approximately $203,000. The value of the share in the Tractor and Motor vehicle 2 are unable to be quantified.
The gross pool, excluding superannuation, but including paid legal fees (as excluding paid legal fees has the effect of causing the parties to have responsibility for the other’s legal fees) stands at $4,440,700.

Item 46 (Addback): Legal Fees paid by the wife in the criminal proceedings at M Town Local Court in 2017 charged on the Husband’s credit card

The Wife did not provide a value.
The Husband attributed a value of $10,197.
I was not addressed specifically about this item and cannot identify evidence to support it. Even if established it is unclear why this would be considered to be an add-back, noting that they are not legal fees incurred in the family law proceedings. It is incumbent on the person seeking the addback to identify why such a course should be taken, as opposed to an expenditure being in the course of the necessary support of a party.

Item 48: TT State Revenue Department

This item appears on the balance sheet as contested. Until late in the proceedings the Wife’s evidence on this amount ($30,000) was that it was an error by the Revenue Department that was capable of correction, provided that she gave particular information to the Department. She has, as yet, not done so. Late in the proceedings the Wife suggested that perhaps she had left it too late to correct the error. Given the earlier position of the Wife that it could be corrected, and the late change (without any reference as to why), I do not accept that this should be taken to be an outstanding liability.

Items 57: ANZ Frequent Flyer Card Black Ownership of liability: Husband

It is not clear that there is any current liability in relation to this disputed item. Absent evidence to establish this, no liability should be inferred.

Item 59: Loan from Mr MM and Ms JJ Shelbourne

The parties disagree as to the value of the funds owed by the Husband to his parents. The Husband is supported in relation to the debt by his father to the extent of $550,000 only. The Husband asserts a debt of $600,000 by the balance sheet. His affidavit asserts a debt of $580,000, incorporating further borrowings of approximately $34,000 since mid 2018. The Husband provided no material to support his assertion of the increase in the loan since mid 2018, despite his father giving evidence.
That is, the Husband’s own case contained a conflict in the evidence as to the extent of the debt.
The Wife accepts a debt of $319,000, which equates to interim payments to the Wife and legal fees for the Husband.
A schedule of debt was annexed to the Husband’s trial affidavit.
The Wife specifically challenged two borrowings asserted by the Husband. The Husband explained that he had borrowed money from his parents for a shortfall in funds for the building of the home in April 2016 and in November 2016, in sums of approximately $53,000 and $10,000 respectively. He conceded that, despite his assertion of a shortfall, at the same time he had balances of approximately $285,000 and $220,000 in an offset account. The Husband, in providing bank statements relating to the payments, failed to provide statements for the period in to which the $53,000 fell. This undermined his assertions as to the reason for the loan.
While the Husband was challenged as to the rationale he advanced for the loans, his father was not challenged as to the loans. In those circumstances, the loan should be taken as at the level attested to by the Husband’s father.
While the Husband’s father said that there would be a discussion about the loans following the end of the proceedings, it was not suggested to him that repayment might not be required. Under those circumstance the loans should be taken in to account to the extent that they are asserted by the Husband’s father.[10]
[10]Strand & Strand (No 2) [2018] FamCAFC 247 adopting Biltoft and Biltoft (1995) FLC 92-614

Conclusions as to liabilities

Excluding estimates as to costs, the liability positions of the parties are as follows.
The Husband has liabilities totalling approximately $2,008,000, predominantly comprised of home loans and the loan from his parents. The liabilities to his parents include $150,000 in relation to legal fees. Presumably these are subsumed into the paid legal fees component of the assets of the parties as they appear on the balance sheet. The loan, insofar is it related to legal fees was conceded by the Wife, without submission that it be dealt with other than as a liability, leaving the above assumption on safe grounds.
The Wife has liabilities of approximately $21,000, to her mother.
The Husband has $152,000 in legal fees owing.
The Wife has unpaid legal fees of approximately $264,000.
Excluding unpaid legal fees (on the basis that neither party should be responsible, absent a costs order, for the other’s legal fees), the liabilities of the parties totals $2,029,000.

The net pool

With a gross pool at $4,440,700 and liabilities at $2,029,000, the net current pool is reckoned at $2,421,700. Should the orders necessitate the sale of the Husband’s property at O Street Suburb T, which even on the Husband’s case appears to be the case, then the Husband will incur a CGT liability which, at a sale of the property at its agreed value of $1,200,000 will be approximately $124,000. This in effect reduces the net pool to $2,297,700.
The parties also accepted that there is an outstanding balance in the funds set aside for supervised time, of $5,000, which will no longer be required for that purpose, leaving the net property figure at $2,302,700.
The parties also agree that the Husband has approximately $101,000 in superannuation, the Wife approximately $5,000.
Despite the difference in form and nature of the superannuation interests, where it forms a small proportion of the overall pool, and where the parties have sought no order for splitting, it is appropriate to treat it and the current property as part of a single pool.
This leaves the net property figure at $2,408,700.

Contributions – s 79(4)

Having identified the property of the parties, s79 requires, in exercising the discretion to adjust the property interests of the parties, that the contributions of the parties are to be given consideration.
In Dickons the Full Court, said that
“the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 ‘…where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property…” or is it, for example, a union where parties lived very separate domestic and financial lives?’”
Again in Dickons it was noted that the assessment of contributions did not necessitate the identification of a causal link between the contribution and the property, but adopting Aleksovski described that
“the s 79 discretion involves as a necessary requirement that “… trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437).
This requires that
“(a)ny and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).”[11]
[11]Dickons & Dickons [2012] FamCAFC 154 [18]
Dickons also said that:
As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.[12]
[12]Dickons & Dickons [2012] FamCAFC 154 [14]
In assessing contributions a number of matters loom large. This relationship was relatively short and it commenced with overwhelming financial contributions by the Husband. Further, although to be considered under s 75(2)(o), the context of the contributions included the support of C and D, who are not children of the marriage.

Position at the commencement of the relationship

Counsel for the Wife suggested that the circumstances of the commencement of the relationship were best understood by looking to the value of the pool of property brought into the relationship by the Husband. This was asserted to consist of his shares of the two Suburb T properties and the Suburb EE property, along with the profit he received from the sale of the Suburb GG property. The difficulty with this approach is that it also requires evidence as to the level of indebtedness on those properties at that time. That evidence was not identified in the proceedings. Accordingly, the initial contribution cannot be assessed in dollar terms as suggested by counsel for the Wife.
Even without a dollar value being assigned, the early financial contributions by the Husband overwhelmed the early financial contributions of the Wife.
Counsel for the Husband described the position as being one where there has not been a change in the overall property. This appeared to be a reference to the retention of the Suburb EE and Suburb T properties since before the start of the relationship, and the substitution of the L Town property for the Suburb GG property proceeds.
The Wife pointed to her contributions at the start of the relationship as being a sum of approximately $10,000, being the proceeds of the sale of her US property, less expenses incurred in moving to Australia.
The Wife also pointed to the contribution inherent in her uprooting and relocating to Australia from the US in support of the relationship, being, on her part, a significant contribution to the welfare of the family constituted by the parties and the children of the marriage, E and F. The Wife was pregnant with E at this time of the move, a move which preceded the parties’ marriage and cohabitation.

During the relationship

During the relationship the Wife had the primary care of the children, also undertook part time work, and contributed to the shed the parties lived in, and then to the home that was built on L Town.
The Husband also cared for the children, worked in full time employment and contributed to the building of the home on L Town.
The building of the home at L Town was a significant undertaking by both of the parties, giving them a family home that they had not otherwise had. Until then they shared with the Husband's parents, and then lived in a part converted shed. The family home marks a significant improvement for the parties, and one to which they each contributed heavily. They are different but equivalent contributions.
It is unclear whether these contributions sounded in an increase in the wealth of the parties, but, as noted above, it is not necessary that they do so, as it is not necessary to link a contribution with the acquisition of an asset in a causal sense.
The parties’ joint efforts have placed them in a different position than what they were in at the start of the relationship. Those efforts came at the cost of the parties enduring the difficult circumstances, as described by the Wife, of living in the converted shed.
Where a point of difference arises is in the care arrangements and support of C and D, who, although not children of the marriage, have been raised as part of the family and supported by the Husband as well as the Wife.

Since the end of the relationship

Since the end of the relationship the Husband has had the primary care of all four children, leading to a greater contribution being made by him. This, and his upkeep of the L Town property outweighs any benefit he may have obtained from having the occupation and use of that property.

The significance of the care of C and D

The Husband’s care and support of C and D falls for consideration under s 79(4)(e) as it incorporates s 75(2)(o), which includes for consideration in property adjustment:
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
In Elford v Elford[13] the Full Court dealt with the approach to be taken in relation to the support of children who are not children of the relationship, adopting the approach taken in In the marriage of Robb:
It will be noted that his Honour recognised that the contributions made by the wife in that respect were “important”. It can also be seen that his Honour balanced those various non-financial contributions of the wife with the important consideration that the husband had made direct and indirect financial contributions to the wife’s three children and noted in that respect that, because they were not his children, he had no legal obligation to do so.
In In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92-555 (Robb), this Court made the point that because s 79(4)(c) refers, relevantly, to contributions made to “contributions to the family constituted by the parties to the marriage and any children of the marriage”, contributions of the type made here by the husband to children who were not his, needed to be taken up by reference to s 75(2)(o). Although not recognised in those terms by his Honour, he was plainly alive to that distinction and gave consideration both to the important s 79(4)(c) contributions made by the wife and to the husband’s “contributions” to children who were not his, albeit that this needed to occur by reference to s 79(4)(e) rather than s 79(4)(c).
[13]Elford v Elford 55 FamLR 247
In this case, the care and support of D and C is a matter that the justice of the case requires to be taken into account, as being in the nature of an additional contribution made by the Husband that is not counterbalanced by the Wife’s care for D and C.
This marks out the contributions made by the Husband during the relationship as being greater than those made by the Wife, and, by virtue of his primary care of D and C post separation, a further degree greater than those made by the Wife for that period.

Conclusion as to contributions

The Husband’s financial contribution at the start of the short relationship was overwhelming. The Wife’s contribution at that stage comes in large part from her efforts in relocating to Australia, something which is an important contribution to the welfare of the family although not measurable in monetary terms.
The parties’ mix of financial and non-financial contributions, along with contributions to the welfare of the family during their short relationship were strong contributions on both their parts, although favouring the Husband by virtue of C and D.
Since the end of the relationship, each has continued to contribute to the welfare of the family, although again favouring the Husband by virtue of his primary care of all four children.
The Wife argued that this equated to a 25 per cent contribution on her part.
The Husband asserted that, considering the four years of the Wife’s homemaking and parenting, it equated to a 10 per cent contribution on the Wife’s part.
Without having regard to the contribution made by the Wife in the fact of moving from the US, the Husband’s 10 per cent gives insufficient weight to the contributions at that period of time. Although both made strong contributions during this period, favouring the Husband, those contributions saw the acquisition of the family home and the birth of two children. It was a short period, but a period of great change in the development of the family and in the family’s situation.
When those contributions are combined with the significant contribution of the move from the United States, the Wife’s overall contribution should be measured at 15 per cent.

s 75(2) considerations

The Wife sought a 5 per cent adjustment in relation to this aspect, based upon her employment situation, her lack of superannuation, her inferior position by virtue of her relocation and by virtue of the Husband’s superior property position. She acknowledged that the Husband will have the preponderance of the care of all four children.
The Husband sought that there be no further adjustment, noting that although he has the stronger financial resources, he has the care of the children, and the Wife has been able to continue the career that she had as an educator in the US in her employment (now full time) as an educator in Australia, in addition to her business through a retail company for whom she sells product and recruits people to sell product. She indicated previously that she could expand her involvement once the proceedings were over.
The Husband’s position, particularly when the financial resource of Q Pty Ltd and the superior superannuation he holds, are taken into account, is vastly superior to that of the Wife. It is not clear that there is a likely disparity in their capacity to derive an income into the future. It is clear that the Husband will have the care of all four children. This factor counteracts the advantages that the Husband has in terms of property.
There should be no adjustment pursuant to s 75(2).

The discharge of the dollar for dollar costs order

Shortly before the trial of this matter, on 5 December 2018, Loughnan J made an interlocutory orders in relation to costs in the following terms:
That pursuant to s 117 of the Family Law Act 1975:
1.1 Within 7 days after any and all future payment(s) by or on behalf of the husband of any money in payment of accounts rendered by the husband’s solicitors and/or rendered by the husband’s barrister(s) and/or of any money in payment of a request made by the husband’s solicitors to hold funds in trust on behalf of the husband (but excluding for the payment by the husband of any single expert fees for which the husband is liable to pay), the husband shall pay or cause to be paid the same sum of money to the trust account of the solicitors of the wife, Clinch Long Woodbridge, on behalf of the wife on account of the wife’s legal costs and disbursements in these proceedings whilst ever the wife remains legally represented;
1.2 Within 24 hours after the payment by or on behalf of the husband or any money referred to at Order 1.1, the husband shall cause to be given to the wife’s solicitors a memorandum stating the amount or amounts so paid to the wife’s solicitors;
1.3 In the event that the payment referred to at 1.1 is not made within 7 days, the husband shall do all acts and things to direct and instruct his solicitors to forthwith pay 50% of whatever sum is received by the solicitors for the husband from time to time, together with 50% of all funds held on behalf of the husband’s solicitors in their trust account on behalf of the husband from time to time, to the solicitors for the wife on account of the wife’s legal costs and disbursements in these proceedings;
1.4 The wife is at liberty to instruct her solicitors to apply all amounts paid by or on behalf of the husband to the trust account of her solicitors pursuant to this Order for the meeting of the wife’s legal costs and disbursements incurred in these proceedings; and
1.5 Any and all money paid to the solicitors for the husband by or on behalf of the husband after the making of these Orders, together with all money held by the solicitors for the husband at the time of the making of these Orders, shall not be applied in payment of the husband’s legal costs and disbursements until such time as the same amount has been paid by or on behalf of the husband to the solicitors for the wife pursuant to these Orders.

The Husband seeks the discharge of this Order.
The Order was made in contemplation of the rapidly approaching final hearing of the matter which was then a little over two months away. The Order was directed to “any and all future payment(s)…whilst ever the Wife remains legally represented.” The Order was specifically made pursuant to s 117, as a costs Order. Since the making of the Order both parties have incurred legal fees. The Husband has paid no money into trust or in satisfaction of his outstanding fees since the orders were made, meaning that he has also not made any payment to the Wife in respect of her costs.
Following the Husband accruing further liability for legal fees, but not discharging that liability, and prior to discharging that liability, the Husband seeks the discharge of the interlocutory order on the making of final orders.
The Order was not the subject of appeal.
A basis for its discharge is not made out.
The Order has the effect of equalising the position of the parties for a limited period of time. Discharge now would defeat the operation of the Order under the circumstances where the Husband has, as a matter of practical reality, continued to expend money on his legal representation after the making of the Order, even if he has not as yet parted with the money that he owes.
One of the effects of this outcome, although I was not addressed in relation to it, is that the future indebtedness of the Wife to her lawyers is reduced, and the Husband’s effective indebtedness is increased. Given that this effect is produced by a costs order, caution should be exercised before undermining that costs order by ameliorating its effect by adjustment of the property. Under those circumstances, and in the context that I was not asked to do so, I decline to make any allowance in the adjustment because of the effects of the costs order. The 15 per cent adjustment continues to reflect a just and equitable disposition of the property.

Discussion

The Orders will provide for a 15 per cent division of the property to the Wife, taking into account the payment already received (which has been counted as part of the pool at item 8 of the balance sheet).
Fifteen per cent of the net pool is $361,305.
The Wife has by way of paid legal costs had the benefit of approximately $121,000, which incorporates her interim payments to the tune of $100,000. She has property in the form of superannuation of $5,000 and other assets of $44,000. These total $170,000. It will be necessary for the Husband to pay the Wife a further $191,305.
Orders will be made to reflect the division of chattels as identified by Exhibit W9.
Orders will be made for the sale of the ring, providing for the Wife to be responsible for the sale and, failing her obtaining a sale within a reasonable period, for the Husband then to be responsible for the sale. The proceeds will be divided 15 per cent to the Wife.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 March 2019.

Associate:

Date: 8 March 2019

Appendix 1: Wife’s Case Outline Document Orders Sought

PROPERTY

That by way of alteration of property pursuant to section 79 of the Family Law Act 1975, within 60 days the Husband pay to the Wife an amount to be particularised upon the balance sheet being settled.
That in the event that the Husband fails to pay to the Wife the amount referred to in the preceding Order the Husband shall do all things and sign all documents necessary to sell the property situated at and known as O Street, Suburb T, New South Wales, being Certificate of Title Folio Identifier …55 ("the O Street property") by private treaty.
That in the event that there is disagreement between the parties as to:
41.1The nominated real estate agent, the parties shall jointly write to the President of the Real Estate Institute of New South Wales who shall appoint an Agent to act on the parties' behalf;
41.2The solicitor/conveyancer acting on the sale, the parties shall jointly write to the President of the Law Society who shall appoint a solicitor to act on the parties' behalf; and
41.3The parties shall be equally responsible for the costs of such appointments and/or valuations.
That in the event that the O Street property is not sold by private treaty within two months from the date of listing the property for sale, the Husband shall forthwith do all things and sign all documents necessary to list the said property for sale by public auction within three weeks of the listing for public auction.
In the event that the said property is not sold by public auction when first offered for sale by auction, the said property shall thereafter be resubmitted for sale by public auction pursuant to the provisions of these Orders at intervals of not more than one month until such property shall eventually be sold and the parties are to forthwith do all acts and things necessary including the execution of all documents necessary for the sale of the said property by public auction and in particular are to:
43.1Place the said property with an agreed auctioneer or in the default of agreement an agent as nominated by the President of the Real Estate institute (hereinafter called the Auctioneers) for the sale of the property by public auction at the earliest possible date;
43.2Execute all documents requested by the Auctioneers for the sale of the said property;
43.3Request the Auctioneers to recommend a reserve price to be placed on the said property for the purpose of the auction sale and accept such recommended price;
43.4Pay to the Auctioneers, or as may be directed by the real estate agent, equally any sums requested for advertising expenses in relation to the auction.
43.5Co-operate in every way with the Auctioneers in relation to the auction of the said property.
43.6Attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the Auctioneers as to the acceptance of a price less than the reserve price.
43.7Execute the Contract for Sale.
43.8Execute all other documents necessary to complete the sale.
That the Husband shall do all acts and things necessary to procure that, upon the sale of the O Street property, the proceeds of sale shall be paid in the following manner and priority:
44.1Payment of agent's commission and advertising expenses and legal expenses of the sale.
44.2Discharge of the mortgage to the Westpac Banking Corporation, registration number …54.
44.3Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.
44.4The balance then remaining to be paid to the Wife.

Motor Vehicles

That within 30 days the Husband do all things and sign all documents necessary to transfer to the Wife Motor vehicle 1 registration number … into the Wife's sole name and the Wife shall indemnify and keep indemnified the Husband in relation to all liabilities in respect of the said motor vehicle, whenever and howsoever arising.

Furniture and Furnishings

That the furniture, furnishings and effects presently situate in the property situate at K Street, L Town, New South Wales, 2570 shall be divided by agreement between the parties and each party shall do all things necessary to facilitate that division within 30 days of the date of these Orders.
That in the event the parties have not complied with the previous paragraph within 30 days of the date of these Orders, then:
47.1Within a further 7 days the Wife shall prepare 2 lists comprising furniture, furnishings and effects situate in the property, each list to comprise in total approximately 50% of the value of those furniture, furnishings and effects and that list shall be delivered to the Husband within that further 7 days;
47.2The Husband shall then, within a further 7 days select one of those lists and inform the Wife of that decision;
47.3Within a further 7 days each party shall then do all things necessary to facilitate the physical distribution and division of the furniture, furnishings and effects to be distributed between the parties as per the selection of the list referred to above.
That each party shall thereafter be solely entitled to the items of furniture, furnishings and effects so received by them in accordance with the above Orders.

Personal Property

That within 30 days of the date of these Orders the Husband deliver to the Wife the items listed at Exhibit JLS-70 of the Wife's affidavit filed on 2 July 2018 other than those items indicated with a tick thereon.
That as between the Husband and Wife, and except as otherwise provided in these Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:
50.1All personal property otherwise in his/her respective possession or control.
50.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
50.3All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.

Indemnities

That save as provided herein the Wife is solely responsible for and shall pay any past or future tax liability incurred in her sole name or in the name of any entity in which she has an interest and shall indemnify the Husband and keep him indemnified in respect of any such liability.
That save as provided herein the Husband is solely responsible for and shall pay any past or future tax liability incurred in his sole name or in the name of any entity in which he has an interest and shall indemnify the Wife and keep her indemnified in respect of any such liability.

Other

That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Both the Husband and the Wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

Costs

That the Husband [pay] the Wife's costs of and incidental to this Application.

Appendix 2: Husband’s Case Outline Document Orders Sought

PROPERTY ORDERS

That the Respondent Husband pay the Applicant Wife the sum of $200,000 (less any sums previously paid to the Applicant Wife by way of partial property settlement.
That the Respondent Husband be declared to have sole right and title and interest in all property in his name and or possession, including but not limited to:
a)Real property at K Street, L Town, O Street, Suburb T, PP Street, Suburb T and NN Street, Suburb EE;
b)Personal Property in his possession and or control;
c)Superannuation entitlements in his name and or control;
d)Life Insurance entitlements in his name and or control; and
e)Shares, stocks, debentures, units in a unit trust, bank, credit union, financial institution accounts in his name, possession and or control.
That the mother pays the father’s costs of these proceedings.

[2019] FamCA 122

8 March 2019

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies