Sigley & Cullen (No 3)

FAMILY COURT OF AUSTRALIA

SIGLEY & CULLEN (NO 3)

[2015] FamCA 825

FAMILY LAW – PROPERTY – Heads of agreement reached at court door and proceeding adjourned to implement settlement – Wife withdraws from agreement and proceeds to trial thereafter unnecessarily – Use to which that agreement can be put – Limitation of cross-examination as to credit when there is no evidence of hidden assets or anything justifying such a finding.
FAMILY LAW – SPOUSAL MAINTENANCE – Determination as to appropriate and proper level where wife has a significant resource in an unencumbered home.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sigley

RESPONDENT:

Ms Cullen

FILE NUMBER:

MLC

11196

2013

DATE DELIVERED:

5 October 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

22, 23 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Skerlj

SOLICITOR FOR THE APPLICANT:

Coulter Roache

THE RESPONDENT:

In Person

Orders

The Husband assign to the Wife and henceforth relinquish any of his interest in the property at D Street, Suburb E and as soon as practicable, do all things necessary to remove all encumbrances therefrom;
The Wife assign to the Husband and henceforth relinquish any of her interest in the property at D Street, Suburb E and the Husband indemnify the Wife and obtain her release from any liability secured by the mortgage against that property together with all rates, taxes and other liabilities associated with it.
The Husband do all things necessary to cause the company Sigley Pty Ltd to transfer to the Wife the registration of the German motor vehicle presently in her possession.
The Wife forthwith do all things and execute all documents, instruments and writings necessary to assign to the Husband or his nominee all her interest in and to the property of:
(a) Sigley Pty Ltd (“the company”); and
(b) The Sigley Family Trust (“the trust”).
The Husband forthwith assume responsibility for and indemnify the Wife against all liability which may be incurred by her as a result of her having an interest in either the company or trust.
The Husband forthwith do all things necessary to refinance the CBA Joint Viridian Line of Credit “household” account so as to remove the Wife’s name therefrom.
In accordance with paragraph 90MT(1)(b) of the FLA:-
(a)       The Husband as non-member spouse is entitled to be paid a specified percentage out of the Wife’s interest in the Sigley Superannuation Fund;
(b)       The Wife’s entitlement in the fund is correspondingly reduced by force and operation of this order; and
(c)       The percentage specified for the purpose of this order is 100 per cent.
The Trustee of the fund do all such acts and things and sign all documents as may be necessary to: -
(a) Calculate the entitlements awarded to the Husband in paragraph (7); and
(b) Pay the entitlement whenever the Trustee makes a splittable payment from the Wife’s interest in the fund.
Paragraphs (7) and (8) of these orders have effect forthwith..
Both parties do all such things necessary to give effect to paragraphs (7) and (11).
The Wife do all such acts and things and sign all such documents, including but not limited to the signing of the Trustee minutes, rollover requests and related documents as may be necessary to retire from the fund.
The Husband pay to the Wife:
(a) By 4.00pm on 13 November 2015 the sum of $10,000.00; and
(b) By 4.00pm on 13 January 2016 a further payment of $20,000.
That on 24 October 2015 at 10.00am, the wife hand to the agents of the husband at his expense, the two kayaks presently at D Street, Suburb E (“the home”) together with his father’s cricket bat and any other items of personal property that he otherwise seeks through his agent at that time.
The Wife forthwith assign to the Husband (and to the extent necessary, sign any document so required) the whole of her interest in the campervan and ski club membership.
Pursuant to S.78 of the Family Law Act 1975 the mother of the Husband is declared to be the sole owner of the seven paintings presently located in the home:
(a)       Two gum tree paintings (located in upstairs bedroom);
(b)       Painting of town (located in dining room);
(c)       Still life of fruit (located in sitting room);
(d)Small water colour of two people at the Bay (located in the hallway); and
(e)       Still life of wattle (located in sitting room next to piano),
(f)       Bridge
That at the time the husband’s agent collects the items referred to in paragraph 13 hereof, the wife make available for collection (again at the husband’s expense) the paintings referred to and the husband forthwith indemnify the wife in relation to any claim by his mother in respect of those paintings.
That the Wife’s application for restraining orders is dismissed.
Except as otherwise provided in these orders, each party retain as their own property absolutely all personal property and effects (including other superannuation entitlements) presently in their respective possession or control free from any further claim by the other and each party be solely liable for and indemnify the other absolutely against all payments and liability whatsoever in respect to any credit card or personal loan in their sole name.
By way of spousal maintenance for the wife:
(a)The Husband pay to the Wife the sum of $800.00 per week until 31 December 2018; and
(b)The Husband maintain private health cover for the Wife at the current rate of cover until 31 December 2018.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 30 October 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 13 November 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend on behalf of the applicant.
That all applications save as to issues of costs are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sigley & Cullen (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11196 of 2013

Mr Sigley

Applicant

And

Ms Cullen

Respondent

REASONS FOR JUDGMENT

There are basically three issues between Mr Sigley and Ms Cullen to be determined. They are:
(a)What is a fair division of their property; the major emphasis and focus is on their economic disparity;
(b)What should be the spousal maintenance amount paid by the husband and for what duration? and
(c)Should there be orders made against the husband restraining him from attending at the former matrimonial home?
Each of these issues has a number of sub-issues but the parties conducted the proceedings generally along those lines. There is also a discrete issue about the ownership of paintings.
Throughout the hearing and certainly since the beginning of 2015, the wife has conducted the running of her own case. Before that, she had legal representation. She was critical of that representation. For example, she maintained she had not seen documents that her lawyers drew. She accused her counsel of pressuring her to settle at the negotiation table. She said she found out that her indebtedness to her lawyers was higher than she thought. Having regard to the duration of this litigation, those complaints have little relevance except in relation to costs.

The history of the proceedings

The history of both the case itself and the conclusion of the parties’ dispute was unfortunate. Having ended their long marriage relationship in 2013, they attempted to avoid litigation through what is known as a collaborative law process. That cost the parties an enormous amount of money but more significantly wasted time. When that process failed and proceedings were commenced, it was in the Federal Circuit Court. By the time the hearing was ready to be determined by that court, and all the affidavits of evidence had been filed, the allocated Federal Circuit Court judge visiting the registry, ran out of time. The Federal Circuit Court then transferred the case to this Court. There was another delay until the final hearing was fixed in this Court for January 2015.
At the January hearing when both parties were represented by lawyers, they reached a compromise which resulted in them signing a handwritten document called “Heads of Agreement”. The lawyers then requested an adjournment of the trial proceedings to formalise the agreement; it was not long before all of that fell apart.
The relisting of the hearing was set for July 2015 but as that approached, the wife became seriously ill. The extent of her capacity to participate in the hearing was disputed but the determination of that fact depends upon a consideration of medical evidence. The illness was not an issue but the treatment was. There was a paucity of evidence. I am satisfied that even if the husband’s view about the wife’s capacity to proceed was correct, it would have been difficult for her as a self-represented litigant to have efficiently focussed on the issues to be determined. The adjournment in July 2015 was warranted. That eventually meant that the hearing only began in September 2015.

Self-representation

The wife as a self-represented litigant confirmed she had researched the Court’s website and was comfortable with terminology such as cross-examination. She had prepared an outline of case document with assistance from a lawyer which largely focussed on the issues in dispute. It did wander into areas to which I turn below about orders that can still be categorised under the three headings with which I began these reasons.
The wife is an intelligent and articulate woman who has professional qualifications and had been engaged as a university tutor until she recently became ill. She is studying to obtain the necessary qualifications to practise as in her chosen field. She needs a Masters Degree to do that. It will be three years before that can occur at which time, she will be 59 years of age. She was optimistic about her future financial prospects in that career despite having to obtain employment placements and being close to what would normally be retirement age.

The husband

For his part, the husband is a 59 year old health professional in private practice who normally works 45 to 60 hours per week but of late, has worked longer hours because of financial pressures. He has no income other than through his profession even if he has the somewhat doubtful benefit of a corporate structure. Importantly, he indicated a desire not to have to continue to work at the level that he has been. He is fit and healthy.
Implicit in that brief overview is the clear financial picture that the husband has a high income (by community standards) but works long hours to get it. His income after tax is about $250,000.
The wife has no income and is reliant upon financial support from the husband. That was a contentious issue because the husband asserted that the wife was not using her qualifications. She is a health professional by training. Against that however, she has raised four children and has not worked for much of the time. She set out a plethora of complaints about her physical health without providing admissible medical evidence to support them but it would seem unlikely in my view, she would be able to easily return to the her profession. Even if she did, there would still be a significant disparity in income compared to the husband.

The home

A critical issue for determination is that the wife lives in a large unencumbered home valued now at $1.6 million. It is her strong desire to keep the home because the parties’ adult children come there from time to time during their respective weekends and holiday periods. The difficulty for the wife is that she also seeks financial support from the husband including in relation to the utilities for that home and the relevant rates.

Children

The parties’ four children are adults aged between 22 and 27 years. I find that three of those four are partially dependent upon the husband. This was a contentious issue from the wife’s perspective. She alleged that the husband was not supporting the children as he claimed. There were questions put to the husband by the wife about educational expenses for courses as well as living costs. The wife relied upon research she had undertaken and what she claimed she had been told by the children. The husband dismissed all of that to indicate that he said he knew what he was paying.
This support was not a new issue as it had been set out in the affidavit material for the Federal Circuit Court hearing. Whilst the wife cross-examined the husband about specific claims and in turn, he was unable to recall precise details, the reality is that two fundamental principles justify the Court accepting the husband’s evidence generally. First, the wife had access to (or the opportunity to) have access to all of the husband’s financial banking records. She acknowledged that her previous lawyers had been to see the husband’s accountant. When she more recently went herself, she claimed lack of cooperation. The accountant apparently referred her to the bank where it seems she was referred to the police.
It is one thing to cross-examine by innuendo that there is something amiss but it is quite another to prove wrongdoing. The husband provided his draft tax returns prepared by his accountant. The wife had understood the subpoena process and could have taken whatever steps she needed. The wife cross-examined the husband about what she claimed was a undisclosed bank account only to learn that it was a credit card last used by the parties’ 22 year old daughter whilst overseas. Whilst initially that answer was disputed by the wife who claimed that the child was on a scholarship which funded such expenses, the husband produced corroborating evidence in the form of the credit card statement. Thus when challenged, the husband was able to produce the relevant evidence. That leads to the second principle as to why, I accept the husband’s evidence. The wife did not call the parties’ adult children. Whilst she commendably said she did not want to involve them and both parties have close relationships with the children, the husband’s evidence had been in the wife’s possession for at least 18 months. In those circumstances, there is no reason for me to doubt the husband’s evidence about what he pays from his post-tax earnings for the ongoing assistance of the children. In respect of their education, the evidence supports the conclusion that these are post-graduate degrees in some cases. It was not the wife’s position that the children were not appropriately engaged in study.
At this point it is necessary to deal with the credibility of the parties particularly as witnesses, even though credit must have a limited role in this determination.

credibility

The wife said that during the marriage, the husband would not tell her about their financial position. She pointed to apparent unilateral action by the husband concerning a self-managed superannuation fund of which both were trustee directors. The fund had a wine collection amongst its assets and she said that the husband would not give her details about sales. That wine was to be sold by virtue of a Federal Circuit Court order but it was clear from her cross-examination of the husband that the wife had misunderstood what the order required was to happen to the proceeds. When the precise wording of the order was shown to her, she was perplexed that it was not only an order made with her consent but one also in which she had signed the relevant minute of the order. For his part, the husband was able to comprehensively explain where the wine fitted into the picture.
As I have indicated, the wife disputed the husband’s claim about supporting the children. Indeed, the wife accused him of lying. In final address, the wife resorted to saying that she had received text messages from the children indicating that they did not wish their father to pay their HECS or similar course obligations. It would seem that the children are being dragged into this dispute unnecessarily. The husband produced a recent university invoice and evidence of a credit card payment. Again, this was not new and the wife failed to produce evidence to show that the husband was not doing as he said nor importantly, what the children wanted.
The wife also said that the husband’s assets and liabilities “differ” from those she had “known previously” but she produced no evidence to show there were hidden assets or indeed, inappropriate expenditure. Even in her final address, the wife maintained that there were hidden assets. In his evidence, the husband said he was well-known for being “tight” with his money. On the evidence before me, I accept the husband’s statement.
The wife asked the husband about withdrawals of large sums of money with the apparent intention of establishing that he had hidden funds. Two examples will suffice. His bank statements showed quarterly withdrawals of amounts in the vicinity of $28,000. He explained them as tax payments and loans accordingly to the company for the payment of the tax. He then observed that, as it was a cash flow issue, one could see the repayments when the cash flow improved. The wife did not take the matter any further.
A second example concerned a significant payment which was ultimately explained as furnishings for the home that the husband set up after separation. As neither party argued about chattels other than the discrete issue of the paintings, the husband’s answer about withdrawals seemed plausible. The figure seemed to be $6000 and because he had to set up a home completely, that did not seem unreasonable. It was certainly not put to the husband that he had spent in a profligate way. During that same time, maintenance and expenses for the home were paid by the husband save once to which I shall return.
Another example of the wife’s mistrust of the husband concerns the “Commbiz” account. The wife pointed to a document to show that this “account” had her “log in” details on it and the husband was using it and her log in. This too came to nothing as I accept it was not an account but a portal and the husband had adequately explained why he set it up in the way he did. He said that he had intended for them both to have access to the portal which in turn, would have enabled them to have access to the various accounts including the bank loans but having set it up in the name of the wife, he found it too complicated to then add his own. It was much easier he said, to use the log in details under the name of the wife. There was nothing sinister in that.
The wife also cross-examined the husband about a Bankwest account. It turned out that this was not an account at all but a credit card. This was the credit card which one of the children had used recently overseas. The wife asked about specific withdrawals so she had access to the relevant statement. The husband said these amounts were for the daughter’s use when she was overseas but the wife’s retort was that the daughter was on a scholarship from the University and those expenses had been covered. When the husband ultimately produced the account, the wife resiled from her accusation that the daughter had not used the funds. The account otherwise had not been used by the husband of late. Thus, nothing in that evidence supported any finding of dishonesty or lack of disclosure.

Payment of maintenance

One of the complaints of the wife was that the husband unilaterally cut off her line of credit. The husband certainly complained in the witness box that the wife had “unrestrained spending”. The wife said that she had gone to the supermarket only to find when she got to the check-out that she had no access to credit. She asserted that she was then completely without funds and it took the children to get payments resumed. If that was an accurate reflection of what had occurred, it would reflect poorly upon the husband. I do not accept that is the case.
The husband’s explanation was that he had put in place automatic payments to the wife and had anticipated the conclusion of the court proceedings and accordingly the direct payment ceased. When the trial was vacated, it seems that he forgot to resume the payment. There was correspondence between the lawyers but at the time the wife went to the supermarket, she had not received the letter from her solicitors. The husband then organised the resumption of the payments. The picture is very blurred but again on the basis that I accept the husband’s evidence generally, there is no reason for me to doubt what he said. I accept his evidence that it was not malicious. It was unfortunate and the level of communication between the parties was extremely poor which no doubt exacerbated the wife’s distress.
In her cross-examination, the wife asserted that the husband had cut off her money in “retribution” for things that she had said or affidavits that she had filed. It was clear she was asserting that this happened on a number of occasions. No evidence supported such a finding.
The question of whether or not the payments were made was relevant because the wife sought a final order for security to be provided for regular payments. In final address however, she conceded that there was no property realistically that could be so attached.
Having regard to what the husband has been paying, I am satisfied that he honours his obligations. Indeed, unlike many cases, he has offered to pay spousal maintenance while the wife pursues her Masters Degree education.
Accordingly, whilst it was apparent that the wife was accusing the husband of hiding assets and treating her badly financially, allegations which she repeated in her final address, the evidence does not support such a conclusion.

Complaint to the husband’s professional body

The husband’s capacity to work in his profession is dependent upon approval from a regulatory body. Just before the Federal Circuit Court trial in the middle of 2014, the wife filed an affidavit prepared (she said) by her then lawyer. Notwithstanding this was a financial case with clear and discrete issues, the wife alleged that the husband had misused his professional position shortly prior to separation by obtaining medication under prescriptions he wrote in her name. Ultimately this issue was canvassed before the proper professional body which cautioned the husband. I know nothing more but it seems otherwise irrelevant to the wife’s case. As I observed in the hearing, the accusation became relevant to the husband’s case because he asserted that the wife had been mischievous and the consequence of that would have been to have affected his earning capacity. Ultimately, this issue has been put to rest by the appropriate regulatory body. A caution seems to me to indicate that it was not particularly concerning. What was concerning to me was paragraph 123 of the long affidavit filed by the wife immediately prior to the July 2014 hearing in the Federal Circuit Court. That paragraph read:
I have seen [the husband] administer intravenous morphine to himself.
It was only in cross-examination that the wife agreed that this was something that had occurred 30 years ago. It was scandalous for that to be so set out and I was critical of its relevance even if it was true. Lawyers who sign their names to affidavits must be cautious to ensure they do not simply become the advocate for an irrelevant cause.

The evidence

Much of the wife’s evidence was objected to by the husband. I have read the list of those objections and there is no doubt that the husband’s objections should be upheld. The wife’s lack of legal representation does not give her the entitlement to simply avoid the requirements of the laws of evidence. It was the husband’s position however that I should not strike all those causes out but rather, not give the evidence any weight. The wife adopted that position. Accordingly, I have adopted the husband’s position. Looking at what the wife said about her health, the advice she received from a bank employee, what a handyman told her and the various positions as she understood them of her children, are all matters which I have ignored.
The wife otherwise confirmed that the affidavits that she had filed were ones upon which she relied. She called no other evidence.
One evidentiary issue which seemed to cause her consternation but she took the point no further concerned the value of the home. In the 2014 proceedings, the parties had agreed that a valuation was $1.45 million. That valuation was undertaken in 2013.
At an interlocutory hearing before Registrar Field only weeks before his trial began, the husband had to seek orders for an updating of that valuation because the wife would not agree. The wife alone had access to the home. The wife would not agree to the order and there was even a question about whether she would cooperate with the valuer. Ultimately this issue became irrelevant because the wife did not challenge the valuation of $1.6 million provided by the expert. In her evidence, the wife said that she thought that the parties had agreed on a valuation but as I observed, had it gone down in value, she would have been the first to have wanted the revaluation.

Intervention orders

The local magistrates’ court made an order against the husband for a period of six months. That was ultimately extended by a further six months. In respect of the latter, the husband consented to the order with a denial of the facts upon which it was based. No judgment or transcript was provided of that hearing nor was any evidence called by any police officer said by the wife to have prosecuted the application so I am unsure as to its basis. By inference, the application was based upon economic matters although the wife maintained that the police had told her that the husband was a danger to her. None of that evidence was called and despite assertions that the husband had caused “retribution” to her, there is nothing in her evidence by affidavit nor in her cross-examination of the husband, that would enable me to say that he has misbehaved towards her at all such as to justify an injunction for her personal protection.

The contentious paintings

One particular difficult issue in this case which is relevant to the question of the property that the parties own, concerns seven paintings. Prior to the commencement of the July proceedings in the Federal Circuit Court, the husband filed an affidavit by his mother which asserts that the paintings belong to her. The wife’s only response to that was that she always thought that they were joint assets. The wife conceded that at no stage had she insisted upon her former mother in law being required to attend for cross-examination. She said that she had thought about issuing a “subpoena” to the mother in law but the woman was frail and she felt it inappropriate. I explained to her the dilemma that if the evidence was unchallenged, unless it was implausible, there would be no reason for me to reject it. At its highest, the wife could only say that she thought the property was owned by she and the husband.
The evidence of the husband’s mother is quite plausible and it remains unchallenged.
This issue becomes important because the husband sought an order under s 78 for a declaration and consequential orders. There was some debate in final addresses as to how the matter should ultimately be handled because the husband indicated in his proposed orders that there could be an arrangement under which the wife or one of the children became a custodian of the painting. In my view there are significant difficulties in law associated with all of that particularly, as I understand it, the husband’s mother is elderly. Ultimately, at my suggestion, the husband adopted a position that if I accepted the paintings did belong to his mother, he should collect them and give them to her and if his mother decided to return them to either the wife or the children she could do so. The wife indicated that she would speak to her former mother in law at some stage in the future notwithstanding the affidavit of the mother in law indicated clearly she did not want to speak to the wife. As I also observed, there are grandchildren involved in this case and they might be able to resolve the issue more efficiently than can their own mother.

The home

As I have indicated, this home is a property which is on a title that is to be unencumbered. It is a larger than average building block and it contains a tennis court. It has sufficient bedrooms for each of the four children to come and stay whenever they so desire. Apart from when they do come for various periods of time including holidays, the wife lives alone. Counsel for the husband suggested to the wife that she could ameliorate her income position by renting out rooms to students as the property is very close to the local university. The wife rejected that on the basis that it would deny the children the potential to come and use their own bedrooms. In my view, the wife should be entitled to do what she wishes with the property but it is not so much the letting out of the rooms that concerned me but the fact that she could acquire a much smaller home including one that had a number of bedrooms and still maintain a significant portion of capital. The unchallenged evidence of the husband’s estate agent confirms that.
In her affidavit, the wife said that the property had been purchased when the youngest children were less than one year old and that she and the children were “extremely” attached to that house. She said that three of the adult children still maintained their own bedrooms and used it as their residential address for documents and mail. She said she had tried to maintain the property and it continued to give her great comfort as well as comfort for the children. As I have indicated, she said that the children visited over weekends and nearly every night of their university holidays with partners and groups of friends. Right to the end of these proceedings, the wife indicated that she wished to keep it. She should be entitled to do so but I find in this case that there is a significant resource in this home at a point in time when the wife is seeking maintenance. As part of her case, the wife wanted the husband to pay not only money for her living expenses but also all of the upkeep of that property. When pressed, the wife said she wanted $72,000 a year whereas the husband was offering to pay $800 per week. Both parties agreed that it should be for a period of three years. Having regard to the resource that she has, it is hard to understand how it could be seen as fair or reasonable for the wife to have a $1.6 million home as I have indicated.
It is also sad to have to say that even if the children are attached to this property, they could no doubt club together to assist their mother to retain it and look after it.

The wife’s future studies

I have already indicated that the wife has professional qualifications although they have not been used for a number of years. She had been working as a university academic but her hours were limited and so was her income. Her recent illness in July meant that she was unable to take up a position when it became available and accordingly, she became unemployed. It has always been her desire to practice in her field but to do so, she needs Masters Degree level qualifications. Various university courses were discussed during the cross-examination of the wife including the fact that she could obtain a position locally which might reduce her travelling expenses but it was clear that her preference was for the Melbourne University course because it provided the important fourth and final year and as she said, the name of the university affected her employment prospects. It was not disputed by the husband that the wife should undertake such a course and indeed as I have already indicated, he is prepared to pay $800 per week for the ensuing three years.

The wife’s financial needs

The wife relied upon a financial statement which was filed in January 2015. Notwithstanding she was then an academic, she showed that the only income she received was $800 per week from the husband. Nothing in the financial statement was challenged save for the expenditure. Even there, the items were largely uncontroversial. I do not accept that all of the items should be allowed for the purposes of calculating what is reasonable for the wife’s support. Much of what she spent, according to the statement, related to the children. It is not appropriate that the Court take that into account these are adults and they are currently being supported by various means including from the husband’s own resources.
The wife also has a very elderly dog which is not well. The family including the husband is emotionally attached to the dog. Unfortunately however, it is costing significant funds each week. But if the wife chooses to support the dog, she should be allowed to do so providing that she can do it within a reasonable budget. I also take into account that the dog is not suggested to be likely to live much longer.
Amongst her expenses, the wife claimed $200 per week for house repairs. For the reasons I earlier articulated about the house being a large resource, I would not be prepared to allow the $200 per week repairs. The wife also spends money on entertainment, hobbies and holidays but there was no evidence to enable me to work out whether that was reasonable. Matching it against that claim by the husband, he obviously lives much more frugally. The wife claimed cleaning of $50 per week and gardening of $100 per week but again, those are matters that ought not be allowed because of the resource issue.
The wife claimed $130 per week for education expenses including fees and levies but there was no evidence to indicate what that was about. Ultimately, she conceded that it depended upon which course she got into as to whether or not the fees would have to be paid as a lump sum or whether they were part of the HECS or HELP system.
When the various expenses for house repairs, entertainment, holidays, education expenses, gardening and cleaning are removed, the wife’s expenditure is less than $800 per week.
It became apparent in cross-examination that the wife is currently committed to paying $200 per week out of what she is currently receiving, towards her legal expenses. She currently owes those lawyers somewhere in the vicinity of $7000.
It must also be borne in mind that the husband is not only committed to paying $800 per week but also maintaining the wife’s private health cover. The wife will only therefore be obliged to pay any shortfall and I have no evidence as to what that might be.
The wife’s legal fees could be paid from the house resource rather than from her maintenance. Indeed, it is inappropriate for legal fees to be claimed as an expense as part of a spousal maintenance claim in circumstances where there is appropriate capital to satisfy those costs. In addition, such an approach would mean the husband was paying the legal fees.
Thus, if the wife was to receive $800 per week, she could live within her means.

World Vision

The parties had committed themselves to a charity known as World Vision. The wife sought that the husband continue to make that payment. I have concerns as to whether that is an appropriate matter for the Court to be involved in. The husband agreed to make the payments. I do not propose to make the order even with the husband’s consent.

What each party sought

As the applicant, the husband sought orders that the wife retain the home and he remove all encumbrances from it and that she assign to him the property next door. He sought orders that he retain the relevant corporate entity and that in respect of the self-managed superannuation fund, there be a splitting order so that he retain 100 per cent of the fund. He also sought the return of two kayaks from the home and a cricket bat. There was no dispute that he was to retain a camper van and a ski club membership.
As earlier indicated, the controversial issue was the paintings. The husband sought a declaration under s 78 of the Family Law Act 1975 (Cth) (“the Act”) that his mother was the owner of seven paintings. Both parties knew exactly which paintings were in dispute. He then sought consequential orders for the disposal of the paintings. There was some discussion about whether they were to be delivered or retained and in what capacity but in final discussion, I indicated that I would be only prepared to make orders where there was a clean break.
In addition to those orders, the husband sought two other significant orders. They were:
(a)That he pay to the wife the sum of $10,000 less $1396 which had been paid to satisfy a debt relating to the home; and
(b)That he provide spousal maintenance for the wife in the sum of $800 per week until 31 December 2018 along with private health cover “at the current rate” until 25 February 2017 and that he make some charity payments.
If I accept the assets and liabilities as asserted by the husband, such a division of property would mean that the wife was receiving 58.5 per cent and the husband 41.5 per cent.
The wife’s position was more fluid. Her case outline set out a proposed order which began by saying that within 60 days, the husband pay her “a lump sum of 67 per cent of the total assets”. She did not really mean that. What she intended was that she have a share of the assets which in dollar value, totalled 67 per cent of the “pool” of net assets.
What was clear and understood by both parties however was that she would retain the home unencumbered, to divest herself of the interest in the self-managed superannuation fund, divest herself of the interest in and obligations towards the corporate entity and that the husband otherwise retain the chattels as described earlier.
Critically, the wife in seeking 67 per cent of the assets, understood that what she was seeking in cash terms over and above the house and her car was about $250,000. Acknowledging that it would be difficult if not impossible, for the husband to raise that in a lump sum (because the land that he was to keep was fully encumbered) she said she would accept that amount by periodic payments.
The wife had proposed that for a year, she receive spousal maintenance and then at the conclusion of the year, the capital obligation be paid by the instalments to be completed by the end of the third year from now.
In final address, what she discussed was that she wanted $800 per week until 31 December 2015 together with the rates for the home, her telephone and utilities and then a lump sum of $210,000 or $1346 per week if that lump sum was to be paid by instalments.
When she gave thought to the problems associated with a lump sum by instalments, (such as the husband going bankrupt or ceasing work) she said that she wanted spousal maintenance until 31 December 2018 at the rate of $70,000 per annum but still a property division up to 65 per cent which she later reduced to 62 per cent. Sixty two per cent of the assets and liabilities to which I shall turn below meant that the husband had to pay her $108,635. When I did the calculations in final address, the wife accepted that that was the figure she was ultimately pursuing.

In addition to those orders, the wife did not vary her position that she wanted to retain the seven paintings. Furthermore, she altered her original position in relation to the injunctive relief against the husband. Her original application was for an order that he be restrained from assaulting, molesting, harassing, stalking, or abusing the wife or attending within five metres of her home or any place where she worked. Ultimately, that was changed to a restraining order that the husband be restrained from attending the home without her permission.
In the Federal Circuit Court proceedings as earlier indicated, there was wine ordered to be sold. A small portion remained unsold and that has been returned by the auctioneer to the husband. The wife’s argument about why that was so seems to be that the husband set the reserves too high. As best I understand the husband’s evidence, there were six or seven auctions all of which were unsuccessful. Ultimately, the matter did not need much thought because the parties agreed to divide the wine equally and have now agreed that that should occur at 10.00 o’clock on 24 October 2015 through the auspices of an agent attending to collect kayaks and the husband’s cricket bat. He is also to collect papers and other things that might be of a personal nature failing which, the wife can presume that the orders that I am about to make will give her the absolute right of ownership and she can dispose of it as she sees fit.
Before leaving what the wife sought, it is also important to observe that there were a number of ancillary orders that seemed to first have appeared in her outline of case document. These include that the husband pay her out of pocket expenses associated with medical, surgical, dental, pharmaceutical and allied health care until 31 December 2018. They include that the husband provide to the wife access to an account via a debit facility so that all of the monies that she was to receive by periodic payment could be somehow secured. She then sought the following:
(a)Within 30 days, the husband pay her outstanding legal costs;
(b)That the husband pay her costs incurred to date;
(c)That the husband pay the wife’s mother $40,000 (said to have been lent by the wife’s mother to the wife);
(d)That the husband pay the children $15,000 (said to have been lent by the children to the wife);
(e)That the husband pay the wife’s outstanding university debt of $10,400;
(f)That the husband (effectively) pay for the repair of four broken windows at the home;
(g)That the husband continue to pay all vet bills and costs for the family dog up until the dog’s death; and
(h)That the husband pay $8000 for house repairs, $5000 to undertake urgent repairs and $2000 to purchase a washing machine.

Should the husband provide security for any payments?

In my view there is no evidence of any recalcitrance, nor indication of an attitude of inflicting retribution on the wife nor defiance in relation to orders, on the part of the husband. The evidence does not support the justification for an order for security in relation to any payment.
In respect of the loans of the mother and the children, apart from them being costs, there is no evidence as to the nature of the loan and when it is due to be repaid. The inference I have drawn is that the monies were used to fund the wife’s legal expenses. Those matters are much more appropriately dealt with in respect of the costs application which the wife has made and which I agreed should be done after these proceedings by way of written submission. I will take into account that the wife does have these liabilities and no income (unlike the husband) from which to pay them. I have already made observations about the wife making the payment of $200 per week from her spousal maintenance to satisfy her former lawyers. What justifies a conclusion that the orders should not be made is the substantial resource that the wife has in the home. Vague as the assertion is about the children, accepting that the husband’s evidence is correct about his support of the children, it seems that ultimately the money spent by the wife came from the husband in the first place either directly or indirectly.
In relation to the vet bills, those are matters about which I have no understanding as to the size and extent nor for how long those sorts of expenses might be incurred. It is the wife’s desire to retain the family dog and that is an appropriate expense to be covered by the spousal maintenance. As I earlier examined the expenses of the wife for that purpose, allowance was made for the maintenance of the dog.
In respect of such things as the debt of the wife’s mother, the ongoing expenses associated with the home and its relevant repairs, those are matters which all should fall to be paid by the wife from her own capital and the resource of the home itself.
In respect of the wife’s university debt, it is hard to know exactly whether that is a tax or indeed something that if it is unpaid, it would preclude her from continuing with her course. That was not her evidence. I have taken the view that the philosophical scheme of the Commonwealth Government in assisting the universities to fund the programs seems to be that the successful student gains an earning capacity by virtue of the qualification and the debt is then payable through the tax system from the income so earned. That should apply here. Even if I was wrong about that, the evidence about the nature and extent of the expense is so vague that I would not be prepared to say that I understand exactly what it is that is due and when it must be paid. Furthermore, the wife could ameliorate her financial position by disposing of the house if she so desired.
In respect of the house repairs and the washing machine, the husband offered to pay a sum of $10,000 as part of the final orders. Part of that has already been paid from the husband’s perspective by virtue of his payment of an outstanding and recurring bill and on any view, his offer was an open one. The only question for my determination and to which I shall turn below, is whether that is sufficient to enable a court to find that the proposed division was just and equitable. It is not appropriate in my view to make the orders for the house repairs and the washing machine but rather to make an overall determination of what is just and equitable and from her entitlement, the wife can do as she so pleases.

The legal issues

The property division must be dealt with separately from that of spousal maintenance. If a substantial division of assets favours the wife who seeks spousal maintenance, it is conceivable that there are sufficient assets to enable her to support herself. In this case, I find that is partly the case because the wife has the resource in the home but she is also being offered $800 per week for the ensuing three years. It is important in this case that I deal with the property division first.
Section 79 of the Act provides that the Court may make such order as it considers appropriate altering the interest of the parties in their property. The section provides however that the Court shall not make an order unless it is satisfied that in all the circumstances, it is just and equitable to make the order. In considering what order should be made, the Court has to take into account a number of matters set out in s 79(4)(a) to (g).
The first question to be determined is whether orders should be made at all. It was common ground between the parties that it is fair in this case to make orders.
It was also common ground between the parties that the Court does not have to examine the respective contributions during their long marriage and they agreed that subject to one issue on the part of the husband, the contributions were equal.
The husband’s argument was that he should be given credit for the payments made subsequent to separation in support of the family generally. A small percentage allowance was sought by his counsel which would mean that the Court would be departing from the equality of contribution. In my view, it would not be just and equitable to do that because his payments after separation should be seen as a continuation of his obligations which had arisen before the separation. Throughout the time that the parties lived together as a family unit, the husband was the breadwinner. Whilst the wife contributed from time to time, there can be no doubt that the husband was the primary source of financial support not only for the wife but also for the children as they were educated. There was never an application for maintenance of the children (as adults) presumably on the basis that the husband was fulfilling what he saw as his moral obligations to help them. Apart from the argument about the cancellation of the wife’s access to credit and the non-payment for a short period of time when the direct banking payment stopped, the husband seems to have always fulfilled what was not only a moral obligation but also a legal obligation to support the wife. That support enabled her to live almost as she had done previously. Whilst she argued vociferously that there were problems associated with the rates, to some extent, the boundaries were blurred by what the husband had agreed to pay when the parties thought that they had resolved the matter in January 2015. Because this issue took on a life of its own, it is important that I digress to mention it.

The heads of agreement

When the parties were before the Court in February 2015 for the final hearing, they asked for time to negotiate and took the day when both were assisted by solicitors and counsel. A document was not only prepared in handwriting but signed by both parties at the end of that day. As I have indicated, the parties then asked for time to implement in writing what they had agreed was a settlement and the final hearing was adjourned..
The wife’s evidence was that there was an agreement but to which changes could be made. She asserted that she was told that by her lawyers. It is hard to see from the document how that position could be justified. The correspondence indicated that things were to be clarified rather than altered. Part of the heads of agreement was that the husband was to pay the wife $10,000 in circumstances where I am satisfied she was asking for less than that to cover various expenses due at that time.
In her evidence, the wife described herself at the end of that day as having been exhausted by the length of the time taken in the litigation and she believed she was being dragged through the courts as retribution for reporting the husband’s abusive behaviour to the police. None of the evidence that I heard supports such a conclusion. She made the assertion again from the Bar Table that it was all the doing of the husband. Notwithstanding he was the applicant, the husband’s position seems to me not to have altered much since he first filed material in the Federal Circuit Court and as I will find below, I consider his position to be close to a just and equitable outcome.
In respect of the February discussions, the wife said that she did not know at that time she was unwell. It is a little difficult therefore to understand how anyone else would have been cautious about having her negotiate in those circumstances. She went on to say that she could not afford the costs of a second and third day of a hearing and she “misunderstood” that the settlement that day would have saved her $10,400 (presumably in legal fees). She then said that she later found out that she owed much more than she understood.
The wife’s argument was that she asked for “three points of refinement”. Those points were to seek security for payment including that the husband not encumber a property that he has purchased but which is now fully encumbered anyway; that the husband continue to pay “all house and insurances” (sic) “until the discharge of all financial documents in the settlement”; and thirdly, the issue relating to the paintings became a problem. In respect of the paintings, the wife sought that the paintings were to be returned to her once the husband’s mother died. If so, it must be open for me to conclude that she accepted property ownership in her mother-in-law.
I reject the suggestion that each of these matters was simply a refinement. It was quite clear from the evidence that the husband was to have a clean break by committing himself to a set payment for the support of the wife.
It is not at all clear to me what the wife meant when she said that she wanted the payment relating to the house and insurances “until the discharge of all financial documents in the settlement”. If the settlement had been implemented as the parties had agreed on the February hearing date, the only thing that would have had to occurred was the payment by the husband to the wife of $10,000. The various financial documents relating to the settlement were only transfers and the like, all of which were of modest importance.
In respect of the first point of “refinement” nothing in the agreement seems to suggest that the wife was worried that she would not be receiving her payment. It was clearly an afterthought by her.
What puts the wife’s credibility in respect of this “refinement” issue in doubt is what happened immediately after 25 February 2015 when she walked away from the court.
Whilst the lawyers appear to have been implementing the heads of agreement, the wife contacted the directors of the management company handling the self-managed superannuation fund and began demanding details and making accusations that they had permitted the husband to act unilaterally within the fund.
The wife’s actions remain largely unexplained. The financial case had been said to be ready in the Federal Circuit Court in the middle of 2014. The proceedings in this Court were to be finalized in January 2015. On that pathway, there had been no indication of problems about discovery and the parties said they were ready for trial.
Nothing in the heads of agreement indicated that the wife or her lawyers did not have the details associated with the self-managed superannuation fund. Indeed, the wife conceded that her lawyer on two occasions had attended upon the husband’s accountant. It was not suggested to me at any time that discovery had been inadequate in relation to the self-managed superannuation fund. To the extent that the wife may have wanted me to draw such an inference, I do not do so.
The wife’s actions in making what could only be described as demands of the fund managers at a time when the evidence shows her own lawyers were corresponding with the husband’s lawyers to implement the heads of agreement, reflects poorly on the wife. I have concluded she was just being unnecessarily obstructive. That caused the husband angst and costs.

The effect of the written agreement

It was not suggested at any time by the husband that the wife was bound by the heads of agreement. Counsel in a sensible outline pointed to the various authorities to that effect. The issue of the heads of agreement does nothing to assist me in working out what is a just and equitable outcome in this particular case. Its relevance therefore can only lie in the fact that enormous amounts of financial and emotional energy were wasted and the wife’s complaints that the husband was not honouring his obligations in respect of expenses associated with the home has no merit.
The husband clearly understood the wife had problems with a significant bill for rates and that is why the payment of $10,000 was put into the agreement. The husband has stood by that position albeit that a small amount has been paid in the interim period. I wish to make it abundantly clear that I am not determining this case on the basis of the heads of agreement.
I return then to the legal issues.
Having rejected the entitlement of the husband to a finding of an unequal contribution, I am content to find that this is an appropriate case to find that in respect of s 79(4)(a), (b) and (c), the parties contributed equally. I find there are no relevant issues affected by s 79(4)(d) and (b). I turn to what the parties agreed were the relevant factors under s 75(2) of the Act which is the consideration referred to in s 79(4)(e).

The submissions of the parties

The submissions of the parties contained in the Outline of Case documents were more or less repeated in final submission.
The husband’s submission in relation to what might be described as the disparity between the parties was as follows:
·   Both parties enjoy good health;
·   Because of their ages, the period for which they can continue to derive income is limited;
·   The husband’s income is significantly greater than that of the wife however that is impaired by his obligation to provide for the adult children;
·   The wife is presently casually employed and it was not conceded that she needed to pursue tertiary studies having regard to her nursing qualifications and experience;
·   The home was a financial resource in the hands of the wife (as I have earlier detailed);
·   The wife had attacked the husband’s professional reputation and there was a possibility that that could happen again (although that issue seems now to have been put to rest).
As a result of those matters, counsel for the husband said there should be an adjustment of 15 per cent in the wife’s favour. That however was after an adjustment in his favour for the modest contribution matters to which I have referred.
The position of the wife was that she should receive an adjustment of 17 per cent because of the s 75(2) factors beyond 50 per cent. If that were to occur, it would mean that the percentage gap between the husband and the wife would be 34 per cent or about one-third of the assets that the parties have.
In justifying her claim, the wife submitted:
·The husband had a company which recorded a gross profit of $504,000 which was net $372,000 for the 2014 tax year all of which was distributed to the husband and the husband had the benefit of deductions for “staff wages”, depreciation, car expenses and account fees;
·The husband was able to contribute superannuation and his earning capacity was unlikely to change in the foreseeable future whereas her current need would “endure indefinitely”;
·The retention of the home and a motor car by her was consistent with the lifestyle to which she had become accustomed and the children used the property themselves on weekends and university holidays;
·She had no earning capacity and “there is no prospect that she ever will”;
·Due to her poor health, she had missed the opportunity to return as a casual academic;
·She is unable to support herself financially;
·She has been the primary caregiver of the four children of the former marriage;
·She has not worked as a health professional from 1988 until 2001 but has retained her professional registration to work in the Education Department;
·She has musculoskeletal health issues that require surgery;
·She has been diagnosed with hyperthyroidism due to Graves Disease which requires ongoing treatment and lifetime medication
In respect of such issues as the health of the wife, no medical evidence was produced and when challenged about that, the wife conceded that her treating practitioner Professor B had refused to provide an affidavit. To her credit, she endeavoured to fill in the gap by her cross-examination of the husband who obviously has some expertise as a result of his profession. The difficulty with that however is that she was bound by his answers unless they were implausible because there was no other evidence. The curious thing about the cross-examination was that she apologised for the technical terms that she proposed to use. It was obvious that both husband and wife knew exactly what they were talking about. He said that he did not accept that she was medically unfit in July. He acknowledged the illness that she described and its impact. It is clearly a serious illness. He did not however accept the impact. I do not therefore accept that her health affects her earning capacity. She made clear she is capable of and intending to study and intends also to pursue a career in her chosen field. All of that would suggest that she is optimistic about her health. In addition, whilst there may very well be medical expenses associated with the treatment that the wife contemplates, the husband has agreed to maintain private health insurance for her and I have already dealt with the issue of her capacity to look after herself financially both through the $800 per week spousal maintenance proposed by the husband but also the equity in the home.

Section 75(2) of the Act

In respect of s 75(2)(a), I accept the husband’s position. As I have just indicated, I do not know the impact of the wife’s health problems as described. The husband’s position as to age and potential for ongoing earning capacity seems reasonable.
In respect of s 75(2)(b), I again accept the husband’s position. There is clearly a significant difference between the husband’s earning capacity and that of the wife but that must be seen as less significant than that portrayed by the wife, after tax.
I have accepted the evidence about the husband’s ongoing support of the adult children. Section 75(2)(d) refers to commitments necessary to enable a party to support another person that they have a duty to maintain. In the circumstances, it is questionable whether the husband has a duty to maintain his children in circumstances where they have not specifically pursued maintenance but more importantly, the major expenses that he seems to be incurring could very well form part of the taxation obligations of those children in the future. Even taking that into account, I am unsure as to what impact the cessation of those payments would have on the husband’s lifestyle. The evidence presented was that he was spending in excess of $20,000 which is not extraordinarily significant in the scheme of things.
The wife’s position was that she would accept the adjustment sum by way of payments as spousal maintenance or by that lump sum being reduced on a weekly basis. In my view, the latter requires the husband to continue to work significant hours unnecessarily because I accept that after his tax, his unchallenged expenses and the payments he contributes towards the children, there is not an excessive amount available to him. For her part, the wife could ameliorate her position by the sale of the home and, should she desire superannuation for her future, she could use a significant sum to set that up. Both these parties need to have the opportunity to get on with their lives.
The husband might have a significant superannuation scheme in the self-managed superannuation fund but he cannot access that until such time as he retires. That is therefore still some years away. Thus, s 75(2)(b) and (d) are simply matters to be taken into account acknowledging that the husband is in a stronger position than the wife.
I also reject the husband’s suggestion that the wife could go back to her profession. I do so for the same reason that I accept he is at the twilight end of his working career and even if the wife did return to the profession that she had many years ago, it would no doubt require some retraining which would put her in a position where she would have to forego the study she desires to complete and then put her at close to retirement age in any event. I also do not know whether her acknowledged illness affects her capacity to specifically work as a health professional.
Neither party has the responsibilities referred to in s 75(2)(e) to support any other person other than the husband has taken on the obligation of the support of the children through their tertiary education and in any event, he still provides them with assistance as I have outlined above. I accept that that is a responsibility that he sees as a parent and the wife is not saying that he should not be providing some support for them.
Neither of the parties is eligible for any Commonwealth benefits as described in s 75(2)(f).
For the purposes of s 75(2)(g) there can be no doubt that the parties enjoyed a good lifestyle and looked after their children’s future extremely well. However, the ending of the relationship has meant that things are now different. The husband has to continue to work to support himself and the wife now wants to commence studies having regard to the fact that her obligations as a parent have ceased. Each party is seeking things entirely differently from the lifestyle to which they were accustomed. They enjoyed good holidays. On any view, their respective lifestyles have changed but that is very much in their control. For example, the wife could sell the house and live very comfortably with a secure stream of income whilst still receiving the spousal maintenance. The husband could retire from his profession and soon access his superannuation entitlements. He would have a comfortable existence albeit that it would not be anywhere near the income that he currently has, after tax. Thus, the lifestyle to which the parties were accustomed prior to separation cannot continue for much longer. It is a factor that I have taken into account.
Section 75(2)(h), (j) and (k) require the Court to consider the extent to which the payment of maintenance would increase the earning capacity of the parties seeking it and in this case, there is no dispute that the husband is willing to enable the wife to have that support for the ensuing three years. The three year period seems to have been accepted by the wife.
Neither party appears to be residing with any other person in the sense of cohabitation.
The Court is obliged to take into account the terms of any order in the sense of what the underlying value is of the property the parties will receive. The husband has a significant resource in his superannuation and for so long as he continues to be engaged in his profession, he can continue to contribute towards that fund. Just how much more he can contribute and obtain a tax benefit was not stated and the wife did not challenge the husband about that. Looking at what he has contributed of late, it would not appear to be significant. Thus, the husband has the entitlement to the superannuation but cannot access it. The wife is in a better position therefore in the sense that if she sold the house and retained the significant cash proceeds after purchasing a home, as described by the unchallenged evidence of Mr F, she would be in a reasonable financial position relative to the husband.
The other matters set out in s 75(2) have no relevance to this determination.
As can be seen, the wife wanted a 17 per cent loading and the husband was, in reality, seeking approximately 10 per cent because of the adjustment that he was proposing for contributions his way.
I observed during the hearing that it is important not to double dip by “loading” up the wife for the s 75(2) factors and then consider them again when the maintenance is contemplated. Section 75(2) is a mandatory consideration for spousal maintenance but, I have taken into account the concession of the husband in relation to spousal maintenance.
Because the husband adopted (in effect) a 10 per cent adjustment or thereabouts, in my view, somewhere between 58-60 per cent in favour of the wife (noting that I have not allowed his credit card claim of just under $10,000) is not unreasonable when one contemplates what is to be divided. It is not the percentage value but the underlying value which is to be just and equitable.
In terms of what that means, one must first examine what it is that the parties have to divide.

The assets and liabilities

Each of the parties provided a list of what they saw as their respective assets and liabilities. The wife did not have an up to date valuation on either of the two real properties but otherwise, the disputes were relatively modest. I accept the husband’s evidence in relation to the updated figures not only in respect of his superannuation but also his indebtedness. I find therefore that the assets and liabilities are as follows:
The home  $1,600,000
The land  440,000
The husband’s car  35,990
The wife’s car  17,000
The wine proceeds  28,500
The campervan  16,000
The ski lodge membership  25,000
The husband’s superannuation  1,093,800
The wife’s superannuation  19,400
Sub-total  $3,275,690
Less debts (excluding those claimed by
the wife referred to below and the husband’s
credit card)
$452,176
Net  $2,823,514
I accept the husband’s evidence about the liabilities set out above. The wife queried where some of this money had gone but nothing in the evidence indicated to me that the liabilities were inappropriately incurred. Much was asked of the husband about Viridian accounts. Nothing I heard enabled me to even suggest that the husband had inappropriately used those accounts.
The husband has a motor car which I have included in the list of assets above which is encumbered. Whilst it is questionable whether a car on lease is property for the purposes of this exercise, having regard to its ownership and the questionable issue of equity, that was the way the husband portrayed his case. I have left the credit cards of the husband out on the basis that it has been a long time since separation and his income is much greater than that of the wife; he is much better able to bear that cost.
The wife included liabilities to her lawyers, her mother and her children along with a variety of accounts that she maintains are unpaid. Because of the very explicit nature of the loans to her for the purposes of her legal costs and for the reasons I have already indicated about her resource in the home, I do not intend to take those into account. In terms of the home, the wife will be receiving some cash pursuant to the orders I propose to make and in those circumstances, I propose to ignore those expenses.
Looking at the position of each of the parties, the wife currently has the house, the car and her superannuation. She therefore has just over $1.6 million worth of the net assets and in percentage terms, that reflects about 58 per cent of the equity. The husband has those assets to which I have earlier referred and therefore he has something in the vicinity of 42 per cent.

Superannuation

It can be seen that I have included the superannuation of both parties. It is clear from authorities of the court that superannuation is another “species” of property and it is important at times to reflect on its reach and value to the person concerned. Here, both parties requested because of their age, to include the superannuation as if it was the same as the assets I have otherwise described. Because that was common ground, I have adopted that approach.

Conclusion to the property issue

Based on the figures set out above, the wife should be receiving somewhere between $1200 (58 per cent) and $58,000 (60 per cent). In my view, an appropriate outcome in all of the circumstances is a lump sum of $30,000 and I ignore the payment of $1396 already made by the husband as it seems to fit more into the spousal maintenance obligation.

Spousal maintenance

Section 72 of the Act provides that a party is liable to maintain the other party to the extent that the first is reasonably able to do so, if and only if, the other party is unable to support herself adequately for the reasons set out in the section. As earlier said, the Court is obliged to have regard to the matters set out in s 75(2).
This is not an issue that I need to spend any time on because the husband conceded that the wife was entitled to be supported because she could not adequately support herself as things currently stand. For that reason, he offered $800 per week for the period until the end of 2018 and included health insurance cover. He said he would cover the wife until 25 February 2017. The wife sought coverage until December 2018. I do not understand why there ought be any distinction. I consider the husband has the capacity to cover the wife until 2018.
I have already examined the wife’s listed expenses and in my view, the amount of $800 per week adequately enables the wife to support herself if she has no other income. That is her present position.
Having regard to the matters that I set out earlier in relation to s 75(2), I am satisfied that the sum of $800 per week for the period until 31 December 2018 is a proper amount in all the circumstances. I particularly take into account as I have earlier indicated, the fact that the wife could ameliorate her position by the sale of the home but even knowing that, the husband still conceded the payment of $800 per week. Looking at the expenses of the wife, she can meet those expenses without having to sell the home.

Restraining Order

For the reasons I have earlier set out about the absence of any evidence that would justify a conclusion that the wife’s personal safety is at risk, there is no basis for me to make an order under s 114 of the Act for her personal protection.

The paintings

On the basis of the unchallenged evidence of the husband’s mother, I declare that the seven paintings belong to her and should be returned. Because of the inability of the parties to communicate at any reasonable level, specific provisions need to be made by order for the handing over of those assets.

The chattels

The wife did not dispute the chattels issue and I propose to make an order in similar terms to the paintings for those items to be returned by the dates set out in the orders.

Conclusion

I find that the division I have set out at the commencement of these reasons is a just and equitable outcome for both parties. I propose to give the husband 30 days to find $10,000 and a further two months thereafter to find the remaining $20,000. In my view, those orders are just and equitable.

Costs

Both parties foreshadowed applications for costs and to avoid further expenses for both of them, they agreed that any issue should be raised by written submission and the matter determined by me in chambers. Accordingly I shall make those orders.

I certify that the preceding One Hundred and Thirty Two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 October 2015.

Associate:

Date: 5 October 2015

[2015] FamCA 825

5 October 2015

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