Sindel and Sindel

FAMILY COURT OF AUSTRALIA

SINDEL & SINDEL

[2009] FamCA 882

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – equal contributions after small adjustment made in favour of the wife under s75(2) – self-managed superannuation fund

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001

APPLICANT:

Ms Sindel

RESPONDENT:

Mr Sindel

FILE NUMBER:

SYC

5856

2007

DATE DELIVERED:

19 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

29-31 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

RESPONDENT:

In person

Orders

Forthwith from the making of these orders the parties are to do all acts and things and sign all documents necessary to sell the property at 13 P in the State of New South Wales for the best price reasonably obtainable and the following is to apply unless agreed to the contrary:
(a)       the sale is to be by way of public auction as soon as practicable;
(b)the reserve price is to be agreed or as determined by the President of the Real Estate Institute of New South Wales or his/her nominee;
(c)in the event the P property does not sell by auction the parties shall do all things, pay all necessary monies (equally) and sign all documents to cause the P property to be offered by sale by public auction successively each six (6) weeks until sold and unless otherwise agreed, at a reserve price five (5) per cent below the reserve price set at the auction pursuant to Order 1(b) above, and for each subsequent auction at a reserve price five (5) per cent lower than the last. The orders in relation to the sale by auction shall otherwise apply.
(d)the parties are to pay equally all necessary and reasonable costs in relation to the sale of the property;
(e)the husband is to pay all council and water rates and insurance whilst ever he remains in occupation of the P property, and on his vacating the same such costs are to be borne equally;
(f)       each party is entitled to bid at auction, as permitted by law; and
(g)       on completion of the sale the proceeds of sale are to be paid as follows:
(i)in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser; and
(ii)as to the balance 50% thereof to the wife and the balance to the husband.
Forthwith from the making of these orders the parties are to do all acts and things and sign all documents necessary to sell the property at G in the State of New South Wales for the best price reasonably obtainable and the following is to apply unless agreed to the contrary:
(a) the sale is to be by way of public auction as soon as practicable;
(b)the reserve price is to be agreed or as determined by the President of the Real Estate Institute of New South Wales or his/her nominee;
(c)in the event the G property does not sell by auction the parties shall do all things, pay all necessary monies (equally) and sign all documents to cause the G property to be offered by sale by public auction successively each six (6) weeks until sold and unless otherwise agreed, at a reserve price five (5) per cent below the reserve price set at the auction pursuant to Order 2(b) above, and for each subsequent auction at a reserve price five (5) per cent lower than the last. The orders in relation to the sale by auction shall otherwise apply.
(d)the parties are to pay equally all necessary and reasonable costs in relation to the sale of the property;
(e)the parties are to share equally the cost of all council and water rates and insurance until the date of sale;
(f)each party is entitled to bid at auction, as permitted by law; and
(g) on completion of the sale the proceeds of sale are to be paid as follows:
(i)in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser; and
(ii)as to the balance 50% thereof to the wife and the balance to the husband.
For the purposes of Orders 1 and 2 above the husband and wife shall co-operate in every way with the agent, including (without limiting the generality of the foregoing):
(a) making the key(s) to the property available to the agent(s);
(b)allowing inspection of the property at all reasonable times requested by the agent(s);
(c)doing or saying nothing to hinder or prevent a sale being effected;
(d)ensuring that the property, including the grounds, is in a neat and clean condition at the time of inspection by the agent(s) and prospective purchasers;
(e)signing all documents requested by the agent in relation to the listing for sale of the property;
(f)undertaking a marketing campaign in accordance with the recommendations of the agent; and
(g) attending the auction.
From the proceeds of sale received by the husband under Order 1(g)(ii) above or Order 2(g)(ii) above, the husband is to contemporaneously pay the wife the sum of $238,529.40, unless otherwise paid beforehand. The husband shall forthwith apply the proceeds of any sale to which he is entitled in payment of his obligation to pay the wife the sum of $238,529.40, and the proceeds of sale shall be charged with that obligation.
Forthwith upon the making of these orders the husband is to sign all documents and do all things necessary to transfer to the wife his interest in the funds held in the Macquarie Cash Management Account.
Pursuant to s90MT(1) of the Family Law Act 1975 (“the Act”) the parties as Trustees of the Sindel Superannuation Fund do all acts and things and execute all deeds, documents, instruments and writings necessary to cause the Sindel Superannuation Fund (“the Superannuation Fund”) to make a splittable payment to an eligible superannuation fund nominated by the wife and for that purpose the wife is entitled to 44.4% of the husband’s interest in the Superannuation Fund at the operative date and the husband’s entitlement in the Superannuation Fund is correspondingly reduced.
The parties do all such acts and things as shall be necessary to cause the wife to cease to be a member of the Superannuation Fund and to resign as a trustee of the said fund.
The Trustees of the Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 the entitlement created for the wife in Order 6 above; and
(b)Pay the respective entitlements whenever the Trustee makes a splittable payment out of the wife’s interest in the Superannuation Fund.
Having been afforded procedural fairness, Orders 6, 7, and 8 bind the Trustee of the Sindel Superannuation Fund to observe the requirements of the Act and the Family Law (Superannuation) Regulations 2001.
The operative time for Order 6 is the date of this order.
Unless specified in these orders, each party is otherwise entitled to retain absolutely to the exclusion of the other all property of whatsoever nature or kind owned by that party and held in the name or possession of that party as at the date of these orders.
If either party refuses or neglects to sign, within fourteen (14) days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
Any application for costs be filed an served within 28 days of the Orders herein made, and subject to the following;
(a)any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application;
(b)any respondent to a costs application must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting out the evidence in chief upon which they wish to rely; and
(c)the applicant will have a further 7 days in which to file any submission in reply.
In the event that no application is filed within the time limit specified in Order 13 above, then each party is to pay their own costs of an incidental to these proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5856 of 2007

MS SINDEL

Applicant

And

MR SINDEL

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are between parties who commenced cohabitation in September 1982, who married in April 1983 and who separated under the same roof on 3 April 2006 and to separate abodes in 2008.
Of the marriage there is one child, born in July 1997.
The proceedings initially sought relief both as to financial matters and parenting issues.
The parties were able to agree however before the conclusion of the hearing on issues relating to the care of their child and that agreement was reduced to writing and made the subject of orders by consent on 18 September 2008.
Those orders provided for shared care of the child between the father and mother.
The question before the Court is how the property (including substantial superannuation) might be divided between the parties and how the claim of the husband for recognition of an asserted substantially greater financial contribution to the acquisition conservation and improvement of the property of the parties or either of them ought to be recognised, if at all, in the orders altering the parties interests in property.
It further involves an issue of whether the historic ability of the husband to have a greater capacity to earn an income and the wife’s present earning capacity, (which is at a level of about half of what the husband says is the least amount he is able to earn) in the circumstance where the husband is presently unemployed, should be the basis upon which any division of property thought appropriate by reason of the parties on contributions should be adjusted in favour of the wife.
And, finally, whether such a result would in all the circumstances of this case be just and equitable.

Background Facts

The husband was born overseas in 1957.
The wife was born overseas in 1959.
The husband emigrated to Australia in January 1974, completed Year 12 of his secondary schooling and then enrolled at University where he obtained a qualification as an engineer.
In March 1979 the husband commenced to work for C Organisation as an engineer.
In December 1981 the wife arrived on a working holiday visa and met the husband.
In May 1982 the husband was granted Australian Citizenship.
In May 1982 a house at S was purchased in the husband’s name and was mortgaged to the Commonwealth Bank.
In or about September or October 1982 the parties commenced living together at the S house and the wife commenced work with the New South Wales public service in December 1982.
In March 1983 the husband’s sister, M, arrived in Australia on a student visa and stayed and commenced living with the husband and wife at S.
In April 1983 the parties married.
In 1984 the wife commenced permanent employment with the New South Wales public service, working for two different departments.
At that time the husband commenced a part time study of a Masters in Business Administration.
In March 1984 the wife commenced studies on a part time basis in a bachelors degree at the University of New South Wales.
In July 1984 the husband’s parents and his other sister, R, migrated to Australia and commenced living with the husband, the wife and R in the S house.
In October 1984 the wife commenced work at another government department.
In December 1984 the wife was granted Australian Citizenship.
In February 1986 the mortgage of the S house was fully repaid and discharged.
In April 1987 the husband and wife purchased land at P for $93,000 with the assistance of a first registered mortgage with the St George Bank (then known as St George Building Society Ltd).
In November 1987 the husband completed his Masters in Business Administration and graduated in 1988.
In May 1989 the S house was sold to the husband’s parents.
By October 1989 the mortgage on the land at P was discharged and the wife completed her bachelor’s degree.
In September 1989 a first mortgage was taken out with the St George Bank in the sum of $163,000 to finance the construction of a dwelling at the property at P.
In March 1990 the wife resigned from the public service.
In July 1990 the wife commenced work with J Organisation.
In August 1990 the husband and wife moved into the completed home at P.
In June 1991 the wife resigned from J Organisation and commenced work with the Commonwealth Public Service.
In mid 1992 the wife was promoted.
In August 1992 the husband resigned from C Organisation and in September 1992 commenced at A Pty Ltd.
On his resignation from C Organisation he received payment for recreation leave, long service leave and other payments.
In May 1995 the wife was promoted.
In September 1995 the parties commenced treatment for artificial conception which after some time was successful.
In October 1995, the husband’s employment at A Pty Ltd was terminated.
In April 1996 the husband commenced employment with X Pty Ltd.
In July 1997 the parties’ child was born and is now aged 12 years.
In July 1997 the husband resigned or left employment at X Pty Ltd and commenced work in November 1997 at B Pty Ltd.
In March 1998 the husband settled legal proceedings which he had taken against A Pty Ltd regarding unfair dismissal and unpaid commission. The amount he received was an amount that would have been due to him in any event had his employer properly paid him in accordance with his terms of employment and the cost of the proceedings.
In October 1998 the parties purchased a house at G which was purchased for $306,500.
That purchase was financed by a deposit of $106,500 which the parties had available to them and by a mortgage advance from St George Bank in the sum of $200,000.
In December 1998 the husband was made redundant from B Pty Ltd.
In September 1999 the company Sindel & Associates Pty Ltd was incorporated. The husband and wife are shareholders and directors and the husband undertook contract work and teaching work.
Between February 2000 and December 2001 the wife worked as a tutor at a University.
In February 2002 Sindel & Associates was contracted by GP Company on 1 February 2002 for the husband to provide management services. From February 2002 the wife worked as a tutor at a University.
In June 2002 the husband was offered permanent full-time employment and signed an offer of employment made by GP Company.
It was a requirement of his employment contract that he acquire certain shares in the company.
In June 2002 the Sindel Superannuation Fund was established with Sindel & Associates Pty Ltd as its trustee to purchase the shares.
In November 2002 a shareholders agreement to purchase shares in GP Company was executed.
In 2003 the wife commenced study for a Masters degree.
In September 2003 further shares in GP Company were purchased by Sindel & Associates as Trustee of the Sindel Superannuation Fund.
In late 2003 GP Company became a publicly listed company and 50 percent of the shares issued to the husband were sold in the initial public offering and the remaining shares were sold in March 2005.
The shares were sold at a premium to their acquisition cost and since the husband caused tax to be paid at the time of their acquisition tax was not payable on their sale.
In December 2003 the accountant for the Sindel Superannuation Fund advised the wife to transfer into the fund the superannuation money she had with the MLC and the AMP so that there was less disparity between the sums in the membership accounts. The parties agreed.
At that time the husband had a problem with his reasonable benefits limit.
In 2004 the wife continued studying at the University of Sydney, tutoring at the University and teaching at a TAFE.
In November 2004 the wife completed her Masters degree and from February to June 2005 taught at the University.
On 30 June 2005 the husband resigned from GP Company and commenced teaching at TAFE.
In June 2005 the wife was employed by the Commonwealth Public Service on contract as a senior officer working three days a week and in March 2006 the wife was made a permanent senior officer at that department.
In April 2006 the parties separated under one roof.
In September 2008 the wife removed $28,700 from the parties ING account in order to fund a relocation.
In September 2008 the wife commenced living in rented premises with the child and paid rent in the sum of $500 per week. The husband remained living in the former matrimonial home.
In May 2009 the husband was made redundant and the husband received certain redundancy benefits.

The Issues

What is the property of the parties to the marriage or either of them?
What financial and non financial contributions did they make or were made on their behalf to the acquisition, conservation or improvement of that property either directly or indirectly and what contributions did each of them make to the welfare of the family, including in the nature of homemaker and parent?
What value should be placed on those contributions and what would be an appropriate division of their property were they the only matters to take into account?
In relation to these issues, the husband’s contention is that he should be entitled to a greater proportion of the assets significantly by reason of his greater contribution, or the contribution made on his behalf, financially to the acquisition and conservation and improvement of the property of the parties or either of them. The husband asserts that his contributions otherwise should be evaluated as equal to those of the wife.
It is the wife’s contention that all the contributions by the parties should be treated as being equal in value.
What adjustment should be made to such a division based on a consideration of the various matters referred to in section 75(2) of the Family Law Act 1975 (“the Act”)?
The husband contends that an adjustment should be made in his favour by reason of his unemployment. The wife contends that an adjustment should be made upon a consideration of the earning capacities of each of the parties, and in the light of the husband’s evidence that he did not expect to be unemployed for more than a few months and that his earning capacity was up to three times that of the wife.
Is the result thus arrived at one which is considered by the Court to do justice and equity between the parties and if not, what further adjustment should be made?
What should be the form of the orders to be made? In this regard the husband sought orders which would place the immediately available hard assets in his name and leave the wife with a share of the entitlement to superannuation which was not presently accessible. I have rejected this proposal as not affording justice and equity to both parties and I have crafted orders which will divide assets on a basis of greater balance in their current availability.
In addition, the husband sought to procure from the Court an order requiring the wife to take from the significant superannuation fund assets in specie and to vest them in a self-managed superannuation fund which he asked that I require the wife to establish. I reject this proposal. The order for the establishment of a self-managed superannuation fund was opposed by the wife. She wanted neither the expense nor the consumption of time that went with the process. It is possible to do justice between these parties in relation to the division of their assets without the necessity to require the wife to establish such a fund.

Stage One

The first task that I must undertake is to identify the property of the parties or either of them available for division between them.
A balance sheet was presented to the Court at the commencement of the hearing which was the subject of certain discussion between the parties and a final balance sheet was produced in the following form:

Assets	Wife’s value ($)	Husband’s value ($)
[P property] (joint)	750,000.00	750,000.00
[G property] (joint)	790,000.00	790,000.00
Macquarie CMT Account (joint)	248.00	248.00
ING Joint Account (husband)	135.00	135.00
St George Bank Account (wife)	874.00	874.00
AMP Bank Ltd (wife)	2,140.00	2,140.00
ING Bank (wife)	136.00	136.00
Bank West (husband)	113,382.00	113,382.00
St George Freedom 41[…] (husband)	9,837.00	9,837.00
St George Freedom 48[…] (husband)	8,263.00	8,263.00
Macquarie CMT Account (husband)	4,824.00	4,824.00
[…] AMP Shares @ $5.16 (wife)	3,539.76	3,539.76
Telstra […] @ $3.58 (joint)	2,287.62	2,287.62
[…] AMP Shares @ $5.16 (husband)	6,664.00	6,664.00
[…] IAG Shares @ $3.62 (husband)	5,314.16	5,314.16
Motor vehicle – Ford (husband)	11,500.00	11,500.00
Motor vehicle – Mercedes CLK500 (husband)	-	(15,050.00)
Motor vehicle – Volvo 1998 (wife)	11,500.00	11,500.00
[Sindel & Associates] Pty Ltd (husband)	-	-
Contents in wife’s possession (joint)	10,000.00	10,000.00
Contents in husband’s possession (joint)	30,000.00	30,000.00
Husband’s jewellery (husband)	2,000.00	2,000.00
Contents of safety deposit box at Commonwealth Bank (husband)	-	-
Total	$1,762,644.54	1,747,594.54

Superannuation	Wife’s value ($)	Husband’s value ($)
FSS (wife)	5,987.00	5,987.00
PSS (wife)	163,547.00	163,547.00
Unisuper (wife)	3,318.00	3,318.00
[Sindel] Superannuation Fund 9.75% (wife)	314,872.45	314,872.45
[Sindel] Superannuation Fund 87.05% (husband)	2,811,245.80	2,811,245.80
FSS/Unisuper (husband)	12,630.00	12,630.00
BT Classic & Lifetime (husband)	112,620.00	112,620.00
MLC/AMP (husband)	320,532.00	320,532.00
Colonial First State Rollover (husband)	20,635.00	21,000.00
PMP SuperFund (husband)	21,935.00	21,935.00
Total	$3,787,322.25	$3,787,687.25

Financial Summary	Wife’s value ($)	Husband’s value ($)
Property	1,762,644.54	1,747,594.54
Superannuation	3,787,322.25	3,787,687.25
Total	5,549,966.79	$5,535,281.79

Notes	($)
17 Wife contends that the vehicle’s value should be treated as equivalent to any liability. The husband contends that the value is $80,000 with a corresponding liability of $95,050
28 [Sindel] Superannuation Fund St George Account as @28 July 2009 was	1,424,150.00
[Sindel] Superannuation Fund St George Portfolio Cash	127,201.00
and the UBS Portfolio as @ 28 July 2009 was valued at	1,678,110.00
Total Value	$3,229,461.00

[Sindel] Superannuation Fund	($)
87.05% (husband)	2,811,245.80
9.75% (wife)	314,872.45
3.20% ([child])	103,342.75
100.00%	$3,229,461.00

The only issues between the parties were the value, if any, of note of the husband’s Mercedes motor vehicle (item 17) and the value of the husband’s Colonial First State Rollover (item 32).
In relation to the different values attributed to the husband’s superannuation with Colonial First State Rollover, I will accept the husband’s value of that item as it is an admission against interest, and adopt that value of $21,000.
No acceptable evidence was before the Court as to the current value of the Mercedes motor vehicle although the husband asserted it to have a current value of $80,000 as against a corresponding liability of $95,050.
In the circumstances I was invited by Mr Richards on behalf of the wife to ignore the asset and the liability and in the absence of any acceptable evidence of a supporting nature as to its value I propose to accede to that invitation and it is accordingly removed from the balance sheet as any liability attached to it is also removed.
It is noted that in relation to the balance sheet the largest superannuation fund namely the Sindel Superannuation Fund, has three members. It is a

self-managed fund. The funds are held by the trustee for the members in the following proportions namely 87.05 per cent in the husband’s account, 9.75 per cent of the wife’s account, and 3.20 per cent in the child’s account.

The Balance Sheet

Based on the proposed removal of the Mercedes from the balance sheet and the adoption of the husband’s value of the Colonial First State Rollover, I find that the assets of the parties available for division between them are as follows:
a)Assets (other than superannuation) total - $1,762,644.54.
b)Superannuation total - $3,787,687.25.
c)Total assets including superannuation - $5,550,331.79.

Stage two: a consideration of the parties’ contributions to the acquisition conservation and improvement of property and to the welfare of the family

Contributions to date of separation

This is a case in which the husband placed great emphasis and spent much time and energy on detailing the financial contributions of the parties to the acquisition, conservation and improvement of the properties of the parties or either of them.
The husband claimed, and the fact is, that his financial contributions directly were superior to those of the wife. He particularly points to funds made available, he says, by his father to enable the purchase of the property at S and funds subsequently made available to him by his father but offset against the sale price of the parties’ interest in the S property to the father.
Whilst a great deal of time was spent on the nature of payments received by the parties from the husband’s family, some of which were not repaid by the sale to the father and mother of the interest of the husband in the S property, those payments were largely received up to a quarter of a century ago.
There seems to me to be little issue that funds were provided by the husband’s parents and that they were substantially utilised in the way suggested by the husband.
There is no definitive evidence with respect to certain of his claims that he had made payment of expenses (including medical expenses) on behalf of his mother and received those amounts back. However, I do not find that to be of particular importance in a case of this nature given the size of those amounts.
Equally, a gift made by him to his younger sister seems to me to be of no great significance in this case.
The husband conceded that throughout the marriage each party, as they were able to do and to the full extent of their available resources, contributed such sums as they derived from all sources (with minor exceptions only) to the welfare of the family.
The husband does not in any way attack the wife’s evidence as to her working history.
In a submission to the Court he produced a summary in which he sets out his assessments of the various contributions of the parties from 1982 to 1997.
He calculates that the wife’s net income after tax was $398,555 for that period and the husband’s net income after tax was $605,519, showing a disparity in earnings of $206,964.
The husband points, he says, to what he described as the exercise of special skills by him in relation to the acquisition of wealth by the parties. He says in his submissions that there were eight moments of wealth.
The first was the pursuit of A Pty Ltd for entitlements upon the termination of his employment with that company. In this regard the husband received what he would have received in the event that his employment had not been terminated, that is to say his salary and commission plus his cost of pursuing it.
There was a portion of the hearing taken up with the examination of contributions to that particular endeavour and there were different assertions as to the level of involvement of the wife; from the husband saying she simply referred him to a lawyer, to the wife inferring that she assisted him otherwise.
Given that the monies were a part of his taxable income in any event they are presumably reflected in his statement of taxable income received by him.
I will treat that amount as simply being taxable income of the husband from his employment. I do not think that it achieves any greater weight by reason of the fact that the husband had to pursue litigation to get it given that the cost of that litigation was compensated for by a payment.
It is noted that the wife recommended the husband to the solicitor who successfully conducted the case on his behalf.
The husband points also to bonuses which he procured from X Pty Ltd and a bonus from GP Company of $136,576.
He claims credit for a tax saving arising out of the establishment of a

self-managed superannuation fund of which he and the wife were trustees.
I reject that claim but note that the way in which the parties jointly structured the acquisition and sale of those shares probably did provide a significant tax benefit to them. It did however put the immediate accessibility to a significant asset presently beyond their immediate reach.
The husband claims credit for an amount paid for the wife’s studies at the University of Sydney.
Once again, I reject that claim for any special weighting to this expenditure and simply regard it as a payment of the expenses of the household although a contribution to the development of the wife’s earning capacity as presumably was the indirect contribution made by the wife to the husband’s acquisition of a degree of Master of Business Administration.
There is no doubt in my mind that the financial contributions in a direct sense of this husband to the acquisition conservation and improvement of property was superior to those of the wife.
But, of course, they are not the only things to be taken into account in making a determination in what is just and equitable.
It is the assertion of the wife, gainsaid by the husband in part, that the wife was responsible for significant non financial contributions to the acquisition conservation and improvement of property. I accept that assertion.
In making his claims the husband says that there were “moments of wealth” in the parties’ marriage for which he should be given credit.
The husband asserts that the pursuit of A Pty Ltd’s withheld commissions and monies is one such “moment of wealth”. I have already dealt with this issue.
He says that his purchase of the property at G, now substantially having a greater value than having paid for it on purchase, was his initiative and should be recognised as a product of special skill.
I reject this. There is no evidence in particular that it was wise buying which produced the difference in acquisition cost and current value but rather perhaps movement in the real estate market over which neither he nor the wife had any control. The purchase was on the husband’s own evidence a joint decision.
The husband says that the acquisition of the GP Company shares, the public floating of the company, the increase in the value of those shares and the benefit derived on sale should be seen as a financial contribution made only by him. He accepts that it was a requirement of his employment that he subscribe to the shares.
Mr Richards on behalf of the wife conceded indeed that GP Company had hired a competent and capable person who guided the company towards its ultimate sale. He points however that the fact of the decision to seek public listing and sale had been made before the arrival of the husband. There seems to be no doubt however that the husband diligently fulfilled his role and procured a listing and the market took the shares up. He points to results for the company against trends.
I cannot see that as between the husband and wife there should be any special delineation of this contribution from any other simply because it flowed from the husband well fulfilling the obligations he had as an employee of GP Company. It should however be given full measure in the consideration of financial contributions.
The husband points to the decision that was made to house the shares acquired in GP Company in a superannuation fund.
That fund is a fund of which the parties are joint trustees; the parties are each directors of the trustee company.
There may well be as I have said earlier some tax advantage accruing to the parties by reason of the way in which this exercise was carried out but it was carried out with competent professional advice and was a program in which the wife fully participated, albeit to a lesser degree than that of the husband.
The husband claims that his work at GP Company was a product of his special skills and ability and for which he has received recognition by GP Company.
I think this may well be correct to some extent but as between the husband and wife I do not see that it takes the nature of that contribution and the income it represented any further except to say that it was a product of a job well done.
The husband has pointed to the early reduction in liabilities by way of mortgage advances on property purchased as a result of decisions he made to direct funds to their early reduction. No doubt that decision had some advantages in the terms of interest savings and some disadvantages in the availability of current cash flow, and lower living standard. It is noted that the wife’s income during the marriage always assisted the ability of the parties to make decisions as to the disposal of their funds.
Overall, however, as I have said, I think the husband’s financial contribution has to be regarded as being superior to that of the wife.
I accept that the wife’s contribution to acquisition of the property of the parties or either of them in non financial way was indeed equal to that of the husband.
I do not accept that the wife’s contribution to the welfare of the family was equal to the husband’s contribution. I accept that her contribution was greater particularly in the role of homemaker and parent. It was put to the husband that had he not been freed by her fulfilment of the role of primary care giver to attend to his business he would not have been able to make the contribution that he did. He seemed to concede this.
I noted the evidence of the fact that the wife was obliged to undertake (certainly at their joint wish) the significant intervention and the difficulties which were attendant upon the conception of the parties’ daughter. The husband was prepared to attest that indeed there was emotional distress and frustration to some extent for each of them out of this process. He also conceded that because of the gender of his wife and her constant involvement in interventions before falling pregnant that the process was probably more difficult for her. I have no difficulty in finding that it was.

Section 79(4) contributions post separation

Following separation the parties continued to reside in the same residence and the husband made payments of the outgoings of the properties. He also for a time had the benefit of the exclusive use of the property to the detriment of the wife who moved because of what she saw, reasonably I think, as an adverse climate for her daughter. The wife has been obliged to pay rent since that time and has largely supported herself since that date, although she withdrew funds from a joint account for that purpose.

Conclusion based on contribution

All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them including such property which is no longer the property of the parties to the marriage or either of them and their contributions to the welfare of the family to be in the proportions of 53% to the husband and the wife’s contributions as 47%.

Section 75(2) considerations

The husband spent a lot of time analysing his superior earning capacity and investment and other business acumen. He put strongly before the Court his superior financial contributions, the esteem in which his services were held and the approbation of his business associates and others in his industry and decision making. It is that which is reflected in the significant disparity in the income earning capacities of each of the husband and the wife. The husband has historically out-earned the wife by an amount of up to 3:1. The husband says that employment would be available to him which would mean he was at least out-earning the wife in the order of 2:1. He is presently unemployed but his evidence is that in but a few months he will again be employed. That development of his earning capacity was in part due to his innate intelligence but also due to the opportunities afforded to him by the wife because of the work that she did and the contributions she made to the family.
The wife has a masters degree and the husband has engineering and a Masters in Business Administration degree available to him. He is in sense more flexibly qualified than the wife. He has a shorter life expectancy than the wife. He has as demonstrated in this case a confident manner and a lively intelligence. I have no doubt he will continue to demonstrate those skills for some time.

Conclusion on section 75(2)

For all the reasons referred to above and given the length of the marriage and the disparate earning capacity of each of the husband and the wife and the contributions made by the wife to enable the husband not only to acquire but also develop that earning capacity in the tasks that she fulfilled during the marriage, it seems to me that there should be an adjustment of the distribution made on the basis of other considerations in favour of the wife in the order of 3%.

Overall division of assets

The above determination will see the wife receive 50% of the parties’ assets and the husband receive 50%.

Just and equitable

The division of assets would see the wife receive $2,775,165.90 worth of nett assets and the husband receive the like amount.
Each will receive funds which will enable them not only to rehouse themselves but to produce investment income.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division.
The wife will receive:

Assets	($)
· The husband is to transfer to the wife the balance held in the Macquarie Cash management account	248.00
· The wife is to retain her St George Bank Account	874.00
· The wife is to retain her AMP Bank Limited deposit	2,140.00
· The wife is to retain her ING Bank deposit	136.00
· The wife is to retain her 686 AMP Shares	3,539.76
· The husband is to transfer to the wife the joint owned Telstra shares	2,287.62
· The wife is to retain her Volvo motor vehicle	11,500.00
· The wife is retain the home contents in her possession	10,000.00
· The wife is to retain her FSS superannuation	5,987.00
· The wife is to retain her PSS superannuation	163,547.00
· The wife is to retain her Unisuper superannuation	3,318.00
· The wife is to retain her Sindel Superannuation Fund	314,872.45
· The wife is to receive from the husband’s entitlement in the Sindel Superannuation fund to be rolled over into a fund of her choice	1,248,186.67
· ½ proceeds of sale of P Property	375,000.00
· ½ proceeds of sale of the G Property	395,000.00
Sub Total	$2,536,636.50
· The wife is to receive from the husband cash in the sum of $238,529.40 to bring an equal division to the non-real estate property of the parties	238,529.40
Net Assets (including superannuation)	$2,775,165.90

The husband will receive:

Assets	($)
· The ING joint account balance	135.00
· The Bank West Bank account balance	113,382.00
· The St George Freedom account numbered 41…	9,837.00
· The St George Freedom account numbered 48…	8,263.00
· The Macquarie Cash Management Trust Account	4,824.00
· AMP Shares	6,664.00
· IAG Shares	5,314.16
· Ford Motor Vehicle	11,500.00
· Home contents in the husbands possession	30,000.00
· The husbands Jewellery	2,000.00
· His interest in the Sindel Superannuation fund less the amount split in favour of the wife being 2,811,245.80 less $1,248,186.67	1,563,059.13
· His FSS Unisuper Superannuation	12,630.00
· BT Classic Lifetime Superannuation	112,620.00
· MLC AMP Superannuation	320,532.00
· Colonial First State Rollover	21,000.00
· PMP Superfund	21,935.00
· ½ Proceeds of sale of P property	375,000.00
· ½ Proceeds of G property	395,000.00
Total Assets (including superannuation)	$3,013,695.29
Liabilities
· The amount due to the wife under these orders	$238,529.40
Total Liabilities	$238,529.40
Net Assets (including superannuation)	$2,775,165.89

Costs

Should there be any application for an order for costs then any applicant party must file and serve within 28 days of the orders herein made any such application that they might wish to make. Any application is to be accompanied by any affidavit material setting forth any evidence in chief on which they wish to rely together with any written submission in support of that application. Any respondent party must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting forth any evidence in chief on which they wish to rely. Any applicant will have a further 7 days in which to file any submission or evidence in reply.
In the event that no application is filed within the time limit there will be no order as to costs.

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 19 August 2009

[2009] FamCA 882

19 August 2009

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