Smith & Fields

FAMILY COURT OF AUSTRALIA

SMITH & FIELDS

[2012] FamCA 510

FAMILY LAW – PROPERTY – CONTRIBUTIONS – where the parties were married for 29 years – where there is a very large property pool – where the pool is primarily constituted by a business established during the marriage and a residential property purchased and developed towards the end of the marriage – where the husband alleges “special” contributions were made by him to the establishment and running of the business – consideration of Mallett v Mallett (1984) 156 CLR 605 – assessment of the parties’ contributions – where each party contributed to different spheres of the marriage partnership – where property to be distributed 60 per cent to the husband and 40 per cent to the wife.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)

Explanatory Memorandum, Family Law Amendment Bill 1983 (Cth).

Clauson & Clauson (1995) FLC 92-595
Coghlan & Coghlan (2005) FLC 93-220
D & D [2005] FamCA 1462
De Winter v De Winter (1979) FLC 90-605
Dickson & Dickson (1999) FLC 92-843
Farmer & Bramley (2000) FLC 93-060
Ferraro & Ferraro (1993) FLC 92-335
Fisher & Fisher (1990) FLC 92-127
In the Marriage of Stay (1997) FLC 92-751
JEL v DDF (2001) FLC 93-075
Kennon & Kennon (1997) FLC 92-757
Mallett v Mallett (1984) 156 CLR 605
Mclay & Mclay (1996) FLC 92-667
Norbis v Norbis (1986) 161 CLR 513
Phillips & Phillips [1998] FamCA 1551
Pradella & Pradella [2000] FamCA 1522
SL & EHL [2005] FamCA 132
Waters & Jurek (1995) FLC 92-635
Webster & Webster (1998) FLC 92-832
Whiteley & Whiteley (1992) FLC 92-304

APPLICANT:

Mr Smith

RESPONDENT:

Ms Fields

FILE NUMBER:

BRC

4610

2009

DATE DELIVERED:

6 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

30 April 2012 & 1, 2, 3 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk SC

SOLICITOR FOR THE APPLICANT:

McCowans Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Lynn & Rowland Lawyers

Orders

That each of the husband and wife do all such things and sign all such documents as might be necessary so as to effect an overall division of the property and superannuation interests of the parties or either of them, as set out in the table at [34] of the Reasons of Justice Murphy published together with these Orders (“the Table”), in the proportion 60 per cent to the husband and 40 per cent to the wife.
So as to give effect to paragraph (1) of these Orders, the parties shall, within 28 days of the date of these Orders, submit jointly via e-mail to …@familycourt.gov.au Minutes of Order, such minutes to include specific provision for:
(a)The former matrimonial home and adjoining land to be sold in a manner and upon terms as agreed and such sums as are agreed to be paid from the proceeds thereof;
(b)The winding up of B Pty Ltd and V Pty Ltd with the costs of same and any taxation liability arising therefrom or in respect of the Smith Family Trust, to be borne in the proportion 60 per cent by the husband and 40 per cent by the wife;
(c)The sale of all such chattels as have been agreed to be sold as set out in the Table, and the manner and terms of sale;
(d)The retention by each of the parties of all such chattels as set out in the Table;
(e)The terms of any splitting order or splitting orders in either or both of the Smith Superannuation Fund and/or the Fields Superannuation Fund.
In the event that the parties fail to forward agreed Minutes of Order in the manner contemplated by these Orders, the matter be listed as soon as possible before Justice Murphy at a date and time to be appointed, in which event:
(a)Each of the parties shall, not less than 48 hours prior to the hearing date so appointed, file a Minute of the orders sought by email to …@familycourt.gov.au and contemporaneously forwarded to the other party;
(b)Each party shall file and serve all such material as might be necessary so as to permit the issue of the costs of the said hearing to be heard and determined at that hearing.

IT IS FURTHER ORDERED THAT

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith & Fields 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 BRISBANE

FILE NUMBER: BRC4610 of 2009

Mr Smith

Applicant

And

Ms Fields

Respondent

REASONS FOR JUDGMENT

The parties to these s 79 proceedings married some 33 years ago in 1979 and separated after about 29 years of marriage in 2008. They have three children, all of whom are now adults. The parties are unable to agree upon a division of their property, and each seeks orders to that effect from this Court.
The parties, have, however been able to agree upon some important matters central to that determination. First, they are agreed that they shall retain between them their current 84 per cent shareholding in the corporate entities which control the structure through which their very successful construction business has been, and is, run. Secondly, for reasons which will be expanded upon shortly, the parties are agreed on a range as representing the value of their shareholding in those corporations. The parties have also been able to agree on the value of a number of the items of property to be divided.
The “property of the parties or either of them” within the meaning of s 79 of the Family Law Act 1975 (Cth) (“the Act”) consists of two central components. The first is the parties’ shareholding to which reference has just been made – in effect, the construction business. The second is the former matrimonial home – an extraordinary homage to conspicuous wealth described during the hearing by both parties as “…” or “…”.
The issue which divides the parties is the quantification of the respective contributions made by each of them throughout the course of the relationship. Each concedes that the other has made significant contributions. But, the evidence reveals that those significant contributions – which, it is conceded by each, were exemplary – were made predominantly (but, it ought be noted, not exclusively) within differing “spheres”[1] and that each of them played different roles within each other’s “sphere”. Each party agrees that the wife’s predominant contributions have been directed to the home, children and family and that the husband’s predominant contributions have been to the business. However, as might be thought unsurprising in the context of a functional

29-year relationship, each party asserts contributions of significance outside of their “sphere” and within the other’s “sphere”.
[1] Respectfully adopting the expression used by Wilson J in Mallett v Mallett (1984) 156 CLR 605 at 636.
Although, as will be seen, there are disputes between the parties about the nature of specific contributions each has made to the other’s “sphere” as broadly just described, in my assessment those disputes are all, in the scheme of things, minor; the gravamen of what divides the parties in these proceedings is an assertion by the husband that his contributions should be seen as “special” or “unique” or “out of the ordinary” and an assertion by the wife that the wealth of the parties, of whatever type and however described, is as a result of an economic, domestic and emotional “partnership” such that it is unjust or inequitable to distinguish between their contributions.
The issue just described is summarised by the husband contending that contributions should be assessed in the proportion 70 per cent to him and

30 per cent to the wife. For her part, the wife contends that the parties’ respective contributions should see the property of the parties divided equally. It is that issue of the ultimate assessment of contributions which dominated this trial and will dominate these Reasons.
Counsel for each of the parties contends that the central question just posed necessitates an examination of the authorities in which principles relating to the issue of contributions are discussed. In particular, reference is made to the decision of the High Court in Mallet v Mallett (1984) 156 CLR 605 (“Mallett”), and to the decisions of the Full Court of this Court in, for example, Ferraro & Ferraro (1993) FLC 92-335 (“Ferraro”); JEL v DDF (2001) FLC 93-075 (“JEL”); Figgins & Figgins (2002) FLC 93-122 (“Figgins”); and, to the decision by Warnick J sitting at first instance in SL & EHL [2005] FamCA 132 (“SL”).

“Special Contribution” or “Special Skills”?

The notion of “special contribution” or “special skill” in the assessment of contributions might be seen to have its foundations in the judgments of the High Court in Mallett in which Mason J held at 626:
No doubt a conclusion in favour of equality of contribution will be more readily reached where the property in issue is the matrimonial home or superannuation benefits or pension entitlements and the marriage is of long standing. It will be otherwise when the property in issue consists of assets acquired by one party whose ability and energy has enabled the establishment of an extensive business enterprise to which the other party has made no financial contribution and where that other party’s role does not extend beyond that of homemaker and parent.
Similarly, Dawson J held at 647:
But it does not follow in every case where the husband earns the family income and the wife carries out her responsibilities in the home that the contribution of each to property acquired during cohabitation should be regarded as equal. If, for example, the husband is engaged in conducting a business, the nature of the business, the skills which the husband applies in it, the way in which he applies those skills and the manner in which the business has been built up, are all factors which may indicate that it is inappropriate to assume equality of contribution towards the acquisition, conservation or improvement of property during the subsistence of the marriage.
However, while plainly eschewing equality as a starting point in the assessment of contributions, other judgments in Mallett can be seen as providing a foundation for what has been called the notion of “partnership” within the assessment of contributions pursuant to s 79. For example (in the passage perhaps most commonly cited) Wilson J held at 636:
However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as a homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree.
So, too, Deane J held at 640 – 641:
What that reference to ‘equality’ involves is the enunciation not of a legal principle or presumption but of a general counsel of experience … That general counsel of experience, derived from decisions in previous cases involving questions of fact, is that, in cases involving a long marriage where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property, the notion of equality is likely to offer an effective and useful starting point, at least as regards those assets, such as the matrimonial home, ancillary possessions and savings and investments for retirement which are fairly to be seen as truly representing the fruits of a totality of efforts of wage earning, homemaking and mutual support.
While the differences in approach of Mason J and Deane J are manifest, it is interesting to observe that each of the Justices distinguished between contributions made to differing types of property.
Section 79(4)’s requirements to consider the direct and indirect financial contributions, and the direct and indirect non-financial contributions, made by the parties to the “acquisition, conservation or improvement of any of the property …” suggests a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. Thus, where, as here, a large proportion of the parties’ wealth is contained in a business, it can be argued that the direct and indirect contributions made to that particular component of the property are more important, or should be regarded as of greater “value”.
That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c). All the more so, it might be supposed, because while that apparent “causal connection” might be seen in s 79(4)(a) and (b), no such connection is apparent from the words of s 79(4)(c). Contributions of the latter type are not linked by the words of the section to the “acquisition, conservation or improvement of any of the property” or, indeed, to “property” at all.
Wilson J held in Mallett (at 636) that “[t]he Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property …”. But, the relevant sub-paragraph of the Act was then in a different form.[2] It was in that legislative context that his Honour referred (at 636) to contributions of that type being assessed “…not in any merely token way, but in terms of its true worth to the building up of the assets.”
[2]Section 79(4)(b) at that time provided: “The contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of homemaker or parent.”
The amendment to the Act in 1983 was specifically designed, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was to:
… revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings …
Further, authority demands that the ultimate assessment of contributions should be made without “giving over-zealous attention to the ascertainment of the parties’ contributions”.[3] Authority also holds that the “value” of respective contributions is “…not necessarily dependant upon the size of the asset pool or the ‘financial product’”.[4] (It cannot help be observed, however, that despite the clarity of the last-mentioned statement, it is made against the (ironic) background that findings referenced to “special contributions” and “special skills” have been made, almost invariably, in cases “where the assets were of very significant value”[5]).
[3] Norbis v Norbis (1986) 161 CLR 513 at 524.
[4]JEL at [133]; [152](f). That questions might remain in respect of “causation” or “reach” can be seen, for example, in the judgment of Warnick J in SL.
[5]See for example, Ferraro & Ferraro (1993) FLC 92-335 at 79,579, noting that in In the Marriage of Stay (1997) FLC 92-751 at 84,131, a submission that the husband’s contributions were “exceptional” or “special” was rejected ostensibly on the basis that “his ingenuity and enterprise produced assets in the medium rather than the high range…”).
There have been no relevant amendments to section 79(4) since 1983; the Court’s discretion is marked out by reference to the same mandatory legislative considerations that have applied for nearly 30 years. Thus, the assessment of contributions continues to be by reference to mandatory statutory considerations which:
·Make no mention of “special” or “extraordinary” contributions;
·Do not distinguish between the relative importance of financial or non-financial contributions or between direct and indirect contributions;
·Do not mark out any starting point – whether as to equality or otherwise;
·Offer no guidance as to how entirely different types of contributions are to be compared one against the other in arriving at a just and equitable result.[6]
[6]See for example, Gibbs CJ in Mallett at 608; See also, Fogarty J in Ferraro & Ferraro (1993) FLC 92-335 at 79,573 referring to the difficulties in “the comparison of fundamentally different activities.”
Thus, while expressions such as “special skills” or “special contributions” might be convenient enough as descriptors designed to compare the contributions in one case with those in another, s 79 makes no such reference, nor embraces any such concept, save that it mandatorily requires an evaluation of the matters set out in s 79 in arriving at a settlement of property between the particular parties to the particular marriage in all of its particular circumstances.
Axiomatically, then – and contrary to the manner in which many cases of this type are frequently prepared and conducted – the Court’s task is not to assess the evidence with a view to arriving at a finding as to whether a party is possessed of, or has exercised, “special skill” or “special talents” with the result that such a finding is productive of a particular finding, or range of findings in respect of contribution. To approach the matter in that way is to fetter the “extraordinarily wide” [7] discretion inherent in the section.
[7]De Winter v De Winter (1979) FLC 90-605 at 78,092, per Gibbs J (as his Honour then was). See also, Mallett at 608, per Gibbs CJ.
Similarly, the use of an expression such as “marriage partnership” is convenient as a descriptor both of what is an axiomatic component of “marriage”[8] and of what earlier authority has recognised within the context of s 79.[9] It is also convenient as a reminder that the parties to a marriage – in particular a long marriage – contribute to it (as s 79 specifically recognises) in a miscellany of different ways which, taken together, make up the union. It is also convenient as a reminder that non-direct or home-maker contributions are to be given the real weight which authority demands.
[8]“The union of a man and a woman … voluntarily entered into for life”. (s 5, Marriage Act 1961 (Cth). Emphasis added)
[9]“…As part of their union, the parties choose to live in a way which will advance their interests – as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognizes cannot simply be assessed in monetary terms or to the extent that they have financial consequences.” (Waters & Jurek (1995) FLC 92-635 at 82,379).
But, the marriage partnership, too, is not found in terms within s 79 and nor is the Court’s task to arrive at that finding so as to be a pointer to a particular result or range of results.
It might be noted that the notion of a marriage partnership has also been referred to in earlier authorities in the specific context of an evolving social milieu that recognises that the roles of men and women within marriage has evolved over time and was, for example, different in 1993 (when Ferraro & Ferraro (1993) FLC 92-335 (“Ferraro”)[10] was decided) to, for example, 1984 (when Mallett was decided). So, too the social context there referred to has evolved in the nearly 20 years since Ferraro was decided. [11] Yet, again, despite the undoubtedly evolving, and changed, social context since 1983, including, importantly, the social and economic roles of men and women within marriage, the section remains unchanged in so far as the assessment of contributions is concerned.
[10]Ferraro & Ferraro (1993) FLC 92-335 at 79,579, per Fogarty J: “…It is a matter of evaluating those contributions in the individual case but against an evolving social and legislative background.”
[11]See for example, the discussion in SL, per Warnick J (sitting as a trial judge) and, in a context more than 20 years earlier, the remarks of Gibbs CJ in Mallett at 607 – 8.

The decided cases are replete with the expressions just referred to. Those cases are also replete with other epithets or “categorisations” (for example “an inheritance case”; a “windfall case”; a “short marriage case”; a “big money case”). All of those expressions might be seen as a means by which points of distinction and similarity between cases are sought to be drawn with a view to providing a measure of consistency from one case to the next. They might also be seen as examples of the tension identified in Mallett[12] between, on the one hand, the danger of attributing similarities in earlier cases to the facts of a current case and, on the other hand, establishing a measure of consistency in the results of property cases – a tension made manifest by the fact of (and the breadth of) the discretion inherent in s 79.
[12]See for example, Deane J’s reference in Mallett (at 641) to the “codeless myriad of precedent” and “wilderness of single instances”.
But, none of those expressions (or categorisations) can be found within s 79. Nor can any guidance be found within the section as to how, or to what extent, any case that might meet any such description should be treated by comparison with a case that does not meet any such description.
Whilst some assistance may be rendered by the use of expressions such as “special skills” or “special” or “extraordinary” contribution, in my view, the use of such expressions is apt to mislead and to obscure, rather than illuminate, the task at hand. The real danger lies in the promulgation of a notion that, by establishing “special contribution” or “special skills” – whatever the expression, or the indicia comprising any such expression might be said to be – a result of a particular type, or a particular range, should follow. That is an improper fetter on an “extraordinarily wide” discretion. It smacks of a presumption antithetical to what the section requires.
However unsatisfactory or uncomfortable an “extraordinarily wide” discretion may feel for a trial judge, it is the exercise of precisely that which the section requires and it is precisely that which confronts a trial court – albeit informed by the mandatory considerations inherent in s 79. O’Ryan J held in

D & D
[2005] FamCA 1462 at [271] that “…the notion of special contribution has all been a terrible mistake…” and his Honour went on to hold that “… what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement.” The very wide discretion inherent in s 79 requires the Court “… to do justice according to the needs of the individual case, whatever its complications might be.”[13] That necessarily involves an acknowledgement that the circumstances of each marriage are different and that it is to those particular circumstances to which the discretion must be applied.
[13]Norbis v Norbis (1986) 161 CLR 513 at 520, per Mason, Deane JJ.
Shape can be given to that task, in my view, by looking at the nature, form, characteristics and origin of the property comprising the “property of the parties or either of them”. Reference to the above excerpts from the judgments in Mallett will see distinctions drawn by reference to the form and characteristics of the property to be divided. Those matters can bear upon an analysis of the parties’ respective contributions. (The contributions that each party has made to, for example, a superannuation interest over 29 years might be seen to be different in character to those made by each party to, for example, an inheritance received a year before separation). Further shape can be given to the task by examining the nature and form of the matrimonial partnership; to what Deane J in Mallett referred to (at 640) as “…a practical union of both lives and property…” The nature and form of the particular union can, too, bear upon an analysis of contributions. Did each of the parties contribute physically, emotionally and financially to their union? Did the parties plan and execute decisions together or was their partnership, despite in law being a “marriage”, anything but a manifestation of any such practical unity?
Obviously enough, it is then important to identify the nature, form, characteristics and extent of the contributions made by each of the parties by reference to the sub-paragraphs of s 79(4) of the Act – in effect to identify each and all of those contributions of varying types and extent and compare them.
Having done so, what remains is the exercise of discretion – to do what is just and equitable – as between these particular parties, not because one or the other has “special skills” or because there is a “matrimonial partnership”, but because the identification and comparison of contributions and the “general counsel of experience” pulls toward a particular result. Or, as Coleman J recently put it:
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case …[14]
[14] Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234].

The Property

Leave was given to permit the husband to rely upon expert evidence from Mr H. A single expert accountant, Mr C, had prepared earlier reports. The accountants conferred but there remained points of difference. After extensive discussion between the accountants, counsel and the parties, they were able to, in effect, “agree to disagree” about matters informing their respective ultimate valuations such that the value of the shareholding is agreed by reference to a range.
Ultimately, as a result of the parties’ agreement to retain between them their existing 84 per cent shareholding, the necessity for this Court to arrive at a finding as to a specific value of the shareholding is avoided. The parties are also agreed that their agreement as to a range for the value of the shareholding is sufficient to allow any assessment of the dollar value of a proposed adjustment to be made. I agree. In any event, I think the adoption of a range is likely to ultimately give a more accurate assessment of value given the particular nature of this business and the macro-economic vagaries to which it is subject.
It will immediately be appreciated that the retention by each of the parties of significant shareholdings in entities which continue to generate very significant revenue and which intend operating into the foreseeable future is not, in the usual course of events, what might be contemplated as compliance with the duty imposed upon the Court by s 81 of the Act.[15] Yet, other orders are likely to bring about the ruin (or effective ruin) of the asset that represents the single biggest manifestation of 33 years of hard work and contributions by each of the parties. Neither party desires that, and understandably so. I am satisfied that the retention of the joint 84 per cent shareholding by the parties is, as they contemplate, appropriate.
[15] Sometimes called “the clean-break principle”.
All of the matters just discussed, together with other agreements in respect of the issue of “add-backs” which existed at the start of the trial, permit of “the property of the parties or either of them” to be tabulated and it is appropriate to record the parties’ agreement in that form in these Reasons:[16]
[16]The balance sheet in the form agreed between the parties by the conclusion of the trial was provided by counsel electronically via joint email communication to my associate on 8 June 2012 for ease of incorporation into these Reasons.
ASSETS

Ownership	Description	Wife’s Value	Husband’s Value
1.	Joint	Shares in · [Y] Pty Ltd · [Y] (Q) Pty Ltd	$25,302,043 $4,302,840	$17,552,087 $4,302,840
2.	Joint	[V] Pty Ltd · [The former matrimonial home] & adjoining land $10,000,000 · Mortgage (NAB) ($3,660,000) · Personal guarantees by parties for minority shareholders secured over [the former matrimonial home] ($3,086,090)	$10,000,000 ($3,660,000)	$10,000,000 ($3,660,000)
3.	Joint	[B] Pty Ltd (to be liquidated – minor assets/liabilities)	Nil	Nil
4.	Joint	[Smith] Family Trust (if tax liability arises, to be shared in proportion with division)
5.	Joint	[Marine vessel] (to be sold)	$1,000,000	$1,000,000
6.	Joint	Chattels and equipment at [the former matrimonial home] (to be sold)	$250,000	$500,000
7.	Wife	Jewellery in wife’s possession (to be retained by wife) $278,080 + $30,000	$308,080	$308,080
8.	Husband	Jewellery in husband’s possession (to be retained by husband)	$11,200	$11,200
9.	Joint	[Currency] collection (to be retained by husband)	$414,295	$414,295
10.	Joint	[Single unit of currency] (to be retained by wife)	$15,000	$15,000
11.	Husband	Dress Ring (Wife to return to Husband)	$18,000	$18,000
12.	Joint	Ford […] Motor Vehicle (To be received by Husband)	$25,000	$25,000
TOTAL	$37,975,258	$30,486,502

SUPERANNUATION

Member	Name of Fund
13.	Husband & Wife	[Smith] superannuation fund · [… T Street] $1,000,000 · Bank Accounts (30/6/11) $784,224	$895,500 $895,500	$1,784,224
14.	Wife	[Fields] Superannuation fund	$50,000	$50,000
TOTAL ASSETS & SUPER	$39,816,258	$32,320,726

LIABILITIES

15.	Joint	NAB Commercial Loan	(In Item 2)	(In Item 2)
16.	Joint	Personal Guarantee for borrowings of minority shareholders (secured on the former matrimonial home) – current outstanding sum $3,086,090 (Ex H2)	?	?
17.	Joint	Cost to wind up [B] Pty Ltd and [V] Pty Ltd · to be shared on percentage basis	?	?
NET ACTUAL POOL	$39,816,258	$32,320,726

NOTIONAL ADJUSTMENTS

~~18.~~	~~Husband~~	~~Legal Fees Paid~~	~~$ -~~	~~$ -~~
~~19.~~	~~Wife~~	~~Legal Fees Paid~~	~~$ -~~	~~$ -~~
~~20.~~	~~Wife~~	~~Monies expended on maintenance etc for [The former matrimonial home] (no evidence)~~	~~$ ?~~	~~$ -~~
~~21.~~	~~Wife~~	~~Monies expended by Wife on health up to 2012 (no evidence)~~	~~$ ?~~	~~$ -~~
~~22.~~	~~Joint~~	~~CGT & sale costs shares in [Y] Group ([Mr H] Value $7,195,875; [Mr C] Value $5,215,567)~~	~~$ ?~~	~~$ -~~
TOTAL	$	$

The Approach to Property and Orders?

Global or “Two Pools”? [17]

[17] As it was called in Coghlan & Coghlan (2005) FLC 93-220.

As the High Court held in Norbis v Norbis (1986) 161 CLR 513 at 523 there is much to be said for adopting, generally, a global approach to the assessment of the parties’ contributions. Yet, as that same case makes clear, a discretion remains.
Here, a case can be made that the nature and extent of the parties’ contributions and the justice and equity of their ultimate entitlements are better assessed if a “two pools approach” is adopted; the nature, form and characteristics of the business on the one hand, and the remaining assets and superannuation interests on the other, and the nature and extent of the contributions made by each party to each pool, might, it can be argued, make that approach more appropriate.
Ultimately, however, I consider a global approach preferable. This is a long marriage and, as will be seen, the various contributions made by each of the parties over that time see the parties’ wealth vested essentially in two major assets and those two major assets have an interconnection by reason of the construction business being responsible for the construction of the former matrimonial home and materials, labour and funds being directed from one to the other.
I consider it artificial to distinguish between different groups of assets or superannuation interests or, for example, between the business on the one hand and the other property and superannuation interests on the other.

The Nature of the Orders

The precise means by which the ultimate division ordered by the Court is to be brought about is, as both parties accept, likely to be attended by some complications. The parties should be given the opportunity to consult with legal and financial advisers as to the best means by which to effect the mechanics of the ordered division. In that regard, the parties are agreed about other aspects of the distribution of the property, including, for example, the distribution of chattels and that the former matrimonial home will be sold.
The mechanics associated with the latter may be complicated by the unique nature of the property. Again, the parties should be given the opportunity to consult with such advisers as they each consider appropriate with a view to agreeing upon the best means by which the benefit to both parties can be maximised.
The parties each urge the Court to make orders so as to allow them the opportunity to agree upon those matters by submitting agreed minutes of order giving effect to the decision of the Court. Doing so is, in my view, appropriate. Counsel for the husband caveats that position by arguing that the orders should contain a mechanism in the event that conflict mars what should be the triumph of intelligence and common sense to the benefit of each. Again, I consider that appropriate.

Contributions Made By Each of the Parties?

The Nature, Form and Characteristics of the Property

The two major components of the parties’ property earlier referred to can be seen reflected in the agreed balance sheet at Items 1 and 2. They each have particular characteristics but, for present purposes, they are each important as a tangible recognition of the “practical union of both lives and property”.
The parties started with little (although, as will be seen, the husband owned a piece of real property with modest equity). Their success after 29 years is not measured by a wide range of different assets of different types – the product of their respective contributions is represented overwhelmingly by the reinvestment into the business and the development of the former matrimonial home.
Further in that respect, the wealth here is not represented by largesse from others in the form of gifts or inheritances; the origin of the parties’ current wealth is the parties themselves and their respective contributions.

The Nature of the Matrimonial Partnership

There is little doubt on the evidence before me that this particular marriage partnership involved the “practical union of both lives and property” to which Deane J refers in Mallett. More particularly, it is a practical union that subsisted for nearly 30 years. The degree to which parties’ individual aspirations, needs and desires merge into their married union can, in the usual course of events, be seen to be much greater in a marriage of that duration and, in my judgment, that is true of the union here.
As will be seen, the parties jointly invested – and, crucially, re-invested – in the business. As the business grew from its fledgling beginnings and became more successful, the family moved from home to home with all that implies, particularly when children are young. In 1990, with three children aged

10 years and younger, the parties jointly agreed to relocate the family to the Gold Coast so as to take advantage of perceived opportunities there for a business of the type conducted.
The business projected itself in all of its marketing (and still does) as a family business. Indeed, as can be seen from, for example, Exhibits W2, W3 and W4, that is an integral component of its marketing strategy, part of what is said to distinguish it from other construction businesses and an integral component of its reliability, longevity and trustworthiness. The wife worked within the business and, more recently, the parties’ adult children are also employed by the business.
The fact that, at the end of this 29-year marriage, the parties’ wealth is so inextricably tied up in their equal shareholding in the corporations which run the business so as to warrant the preservation of the joint holding is a tangible example of the extent to which two individual lives have merged into a marriage partnership with a commercial manifestation.

The Nature and Form of the s 79(4) Contributions

In material terms, the parties started with little. They resided on the central coast of New South Wales and at the time of the marriage the husband had modest equity in real property; he owned a block of land and had built a home upon it with borrowed funds. Shortly after marriage, the wife was injured and received a compensation payment of $17,500 which, she deposes, was used “to pay off all of our debts and with the balance to pay off some of my mother's debts...”. The husband, who was a tradesman, commenced a course so as to obtain a construction industry licence after the marriage. The wife was an unskilled worker and continued that work for about six months until suffering the injury that led to the aforementioned compensation payment. The parties’ first child was born about 16 months after the parties were married.
The husband commenced work as a contractor working for well-known construction firms. The wife was engaged as a home-maker and parent.
It is submitted on behalf of the husband that “his second job at weekends was building the parties’ next home” and, thereafter, building a new home “on average every two years” until the parties moved to the Gold Coast in 1990 (that is to say about 11 years after the parties married). The direct contribution by the husband in using his skills as a tradesman/construction worker to construct buildings and selling them on average every two years so as to acquire a capital base by which life and business on the Gold Coast could commence should be acknowledged. It is contended in written submissions on behalf of the husband that his efforts in that respect were “all-consuming”, and left “…little time at home to do other than sleep”.
The wife had, then, on the husband’s case, a marriage partner whose undoubted hard work left him with virtually no time at home. By the time the parties moved to the Gold Coast, they had three children aged about 10, 8 and 3. On any view of it, the wife was overwhelmingly responsible for the home-making and parenting role during this time. She received, concomitantly, very little, if any, assistance from a marriage partner who “had little time at home to do other than sleep”. Moreover, those respective contributions were made in circumstances whereby the family were moving from home to home on average every two years with, consequentially, little opportunity to establish a stable base and with all of the difficulties attendant upon moving home.
It ought not be forgotten that those respective contributions made by each of the parties enabled capital belonging to both of the parties to be both reinvested in the properties that were built from time to time and which permitted the accumulation of approximately $110,000 which, I gather, provided the capital foundation for the construction business on the Gold Coast. The later reinvestment of profits within the business provided for its future growth. I regard that as a significant contribution by both parties.[18]
[18]See, in this respect, Mason J in Mallett at 626: “… in evaluating the wife’s contribution in this respect, the primary judge treated it as indirect only, without making any allowance for the existence of a direct contribution arising from the use of the funds of the businesses in which she had an interest…”.
It should be mentioned at this point that neither of the parties suggest that the respective contributions of the other within their respective primary roles – the wife as a home-maker and parent and the husband as a bread-winner – were anything other than exemplary. If epithets are to be used, the husband asserts “special skill” in and about the growth and ultimate success of the business and the wife contends “special skill” or “special contribution” in the role of a home-maker and parent.

The husband seeks to limit the contributions made by the wife to the business, referring specifically to matters such as answering phones, choosing colours, some assistance with displays and the like. The nature and extent of those contributions was the subject of evidence and some criticism during the course of the trial. For example, cross-examination of the wife referred to her attempts to start a business commonly linked to construction which might work well with the construction business but which, ultimately, was not successful. The wife asserts a much larger role in the business. I consider the husband’s evidence is the more reliable. However, as it seems to me, any differences as emerge from a resolution of those specific factual issues, matters little.
More important in my view is that the submissions on behalf of the husband ignore, as it seems to me, the fact that the wife was, at all times, an equal shareholder and a director of the corporations forming the business. The husband contends that he was the driving force – both intellectually and otherwise – behind the business in the sense of managing its day-to-day affairs, designing buildings for construction and sale, and placing the business strategically so as to enable it to become the very successful business which it undoubtedly has been and is. I accept that to be the case and his contributions in that respect are plainly very significant.
However, the wife’s contributions are, in my view, not limited to those which the husband contends. Capital to which the parties were each entitled formed the foundation for the commencement of the construction and later when it became a business, including one with a corporate structure. The husband and wife have had an equal shareholding in the business since its inception (and still do) and, accordingly, an equal investment in it. It was their joint investment which was, over the business’s life, re-invested within it and which permitted its continued operation in the manner in which it did[19].
[19] Again, the comments of Mason J at n 18 are applicable.
In that respect, it is contended on behalf of the wife, I think correctly, that the parties made a joint, and equal, contribution by reason of their participation as shareholders and directors in so far as decisions saw the income or assets of the company not being diverted in any significant measure outside of the business; the wealth of this marriage is represented overwhelmingly by the business and by the former matrimonial home, which became the parties’ home. The joint contribution of the parties, as shareholders whose capital was invested in the business, and as directors whose decisions affected the business, should in my view be seen as a significant joint contribution and, in that respect, I see no reason to distinguish between the contribution made by the husband and that made by the wife.
Evidence given by the husband referred to the “handcuffing” of key personnel, by which it was meant, as I understood it, that key personnel were kept from competitors by “handcuffing” them to the business through incentives and, in particular, a shareholding, the latter with attendant financial obligations. So as to effect the purchase of shares by the current minority shareholders, security of about $4.8 million was required which, in turn, required the co-operation and participation of the wife as a director and shareholder of the relevant corporations. The husband swears to “losing sleep” over the necessity to ensure the “handcuffing” of these key personnel, so vital was it to the future health of the business. Securing that cannot be seen as anything other than a significant contribution by both parties and a contribution where, again, it is in my view not possible to distinguish between the roles of the parties.
It is possible to mount an argument, as is sought to do be done here, that it was only one of the joint shareholders and directors (here, the husband) who made the strategic decisions of importance to the profitability and growth of the company on a day-to-day basis. But, there are two parts to any and all such decisions: arriving at them and implementing them. Even if the wife played little active part in the former, the same cannot in my view be said of the latter. An important tangible example is that the ceding of the 16 per cent shareholding to others required, of itself, the wife’s co-operation and participation.
That is all the more so, when the company’s marketing seeks to emphasise that “[Quotation relating to company’s stability omitted to comply with s121, Family Law Act 1975 (Cth)]” and goes on to quote the husband as saying that “[Quotation relating to the longevity and financial strength of the company omitted to comply with s121, Family Law Act 1975 (Cth)]”[20] Further, Exhibit W2 shows the importance of the projection of a “family business” in the business’s marketing. As but one example, in 2009 the business’s website included the following:
[Quotation relating to the growth of the husband and wife team omitted to comply with s121, Family Law Act 1975 (Cth)].
[20] Exhibit W2.
As has been seen, the stability of the company and its status as a “family business” is, as the husband acknowledges, crucial to its marketing which, in turn, plays a significant role in its success. The “practical union” in this marriage partnership has played a significant part in both the stability of the company and its marketing strategy. Again, I can see no reason to distinguish between the contributions of the husband and the wife in that respect.
A contribution by one party in the role of home-maker and parent and to the welfare of the family more generally that allows the other party to their union the physical and mental space to pursue income and capital generation is, in my view, an often-neglected, yet extremely important contribution. I consider that this is what occurred in this particular marriage; the former contribution being made by the wife so as to allow the latter contributions by the husband. Again, I do not consider the one to be more or less important (or “valuable”) than the other.
Submissions made on behalf of the husband emphasise a number of differing aspects to what are said to be his very significant contribution. Those aspects are said to serve as points of distinction between the contributions of each of the parties within the business. Reference is made to the husband’s qualifications, experience, the creation of capital and the use of research and the like. Particular reference is made, for example, to the husband’s input into the design of the buildings when those designs are, in turn, said to have played a very significant role in the business’s success, particularly when this business is compared to other businesses of a similar type. By the 2004/05 financial year the business had a turnover of $175 million and net profit before tax of

$10 million within the entities comprising it. It is accepted, I gather, by both parties that the global financial crisis and other macro-economic conditions have had a significant adverse impact upon the business. The reduction in turnover and profit post-GFC has been significant but, in very adverse conditions, the company can be seen to have remained relatively buoyant.
I have little doubt that the husband has been, as between he and the wife, the party who has had the stewardship of the business during the significant periods of its growth and particularly through the recent very difficult economic times. There can, I think, be little doubt that the stewardship by the husband of the business in the sense just described constitutes a very significant contribution on his part. I consider that his contribution in that respect has been an extremely important factor in its continuing (relative) prosperity in the face of extremely adverse macro-economic conditions.
I consider that, as between the husband and the wife, the husband has been primarily responsible for the various decisions taken by the corporate structure constituting the business (noting that, since 2006, that has occurred with input from directors other than the wife). I consider this to have been a very significant contribution on his part.
The business has, on any view, been remarkably successful. Exhibit H6 refers to the growth in contracts, set out in six-monthly periods, undertaken by the business. They grew from two in the first half of 1990 to a high of 712 in the first half of 2003. Again, I consider that the very significant growth in this very successful business is due in no small part to the business acumen and skill exhibited by the husband. I consider the contribution of the husband’s business acumen, skill and talents to have been significantly greater than that of the wife.
The wife argues that her contribution to the family is significantly greater than that of the husband. I accept that argument. I cannot see how the husband’s dedication to, and work within, the business, including the thinking and planning in relation to it, was anything other than all-consuming. I do not suggest that the husband’s contribution to the welfare of the family has been negligible, but I regard it as nowhere near as significant as that of the wife.

Post-Separation Contributions

Counsel for the husband submits that in the approximate four years since separation “…the contributions of each will be seen as similar in terms of weighting to what has gone before if that assessment is around the 70/30 division sought by the Husband.” Counsel goes on, however, to submit that “…should Your Honour, for whatever reason, determine that the Wife’s contributions in the period up to separation are worthy of equal or near-equal weight to those of the Husband, the Husband’s post separation contributions are clearly entitled to far greater weight than those of the Wife.”
Counsel for the wife submits that the wife has suffered from “…severe mental health issues”, particularly in the period post-separation. Mr Baston points to the fact that, despite her severe depression, the wife “…did not abandon her responsibilities” at the business, attending “one or two directors’ meetings” herself and appointing “professionals to attend on her behalf otherwise.” Mr Baston also specifically refers to the fact that, at separation, the former matrimonial home was still a year from completion and submits that, despite her health difficulties, the wife “…completed her role in completing [the former matrimonial home] project. This was outstanding.” It is a contribution, it is said, made under “…enormous stress and distress.”
In that latter respect, counsel for the husband cites Fisher & Fisher (1990) FLC 92-127 (“Fisher”) and Pradella & Pradella [2000] FamCA 1522. The former should in my respectful view be treated with considerable circumspection in light of the later decision of the Full Court in Kennon & Kennon (1997) FLC 92-757 (particularly at 84,294). But, while that latter case accepts that contributions can be made more onerous by the prevailing circumstances, recognition of that appears confined to a “narrow band of cases” where violence by one party has been the cause of more onerous contributions by the other. Mr Kirk SC quotes Warnick J, in Fisher (at [16]) to the effect that, “…it is the existence of the respective contributions … which is the primary subject of investigation and not the causes thereof…”. I respectfully agree while noting that the health issues that brought about the asserted difficulties in making contributions may well be relevant not to contributions but pursuant to s 79(4)(e).
Notwithstanding those health difficulties, I accept that the wife made significant contributions to the completion of the former matrimonial home and also contributed to the business. Again, in this context I consider that the submissions on behalf of the husband take no account of the continuing contributions of the wife as a director and shareholder, particularly in relation to the stability of the business. This Court is well familiar with peremptory or reckless actions by one of the parties at and after separation wreaking havoc upon a business.
Again, however, I consider there is a disparity in the contributions made by the respective parties, and, again, I consider there is a significant difference in the contributions between the parties in what might be called the stewardship of the business. In addition, the parties’ children have been adults for the whole of the post-separation period and that fact, and the separation itself, results in the nature and extent of the contributions made by each of the parties to the welfare of the family being reduced accordingly. That is the more so for the wife whose pre-separation time was taken up primarily in that role.

Evaluation of Contributions

Qualitative Assessment

As will be plain from what I have earlier said, I consider that the husband’s arguments do not give full expression or weight to the nature and extent of the wife’s contributions. As will also be plain, in many respects, I do not regard it as just to distinguish between the parties when their respective contributions are analysed and compared – albeit that they largely each predominate in differing “spheres”.
However, an analysis of those contributions points to a greater contribution having been made by the husband directly to the business, predominantly by reference to the design of the buildings which the business constructs and sells so successfully and to what I will call the stewardship of the company including the plainly clever strategies and planning that have given it such success and to the financial and other planning that have led to it doing, relatively speaking, remarkably well in very adverse macro-economic conditions. These are important contributions in which it is, in my view, both appropriate and just to distinguish between the parties to this lengthy union. I consider that disparity to be particularly evident and pronounced in the period post-separation
In summary, then, when regard is had to the origin, nature, form and characteristics of the property and the nature, form and characteristics of this particular union, there are many aspects to the differing contributions – made predominantly in different “spheres” – in which I do not consider it just to draw any distinction between the contributions made by each of the parties.
Specifically, I reject the notion that any such distinction should be drawn because this might be described as a “big money case” or because, per se, the husband’s predominant contributions have been made to a very successful and valuable business as distinct from the wife’s predominant contributions which were and are made indirectly and, in particular, contributions made to the welfare of the family. In that respect, I also reject the notion that one “sphere” or “role” should be seen as, of itself, more important, or more inherently “valuable”, than the other.
I do so for a number of reasons. First, the terms of s 79 suggest no such thing. Secondly, doing so risks giving insufficient or “token” weight to the “sphere” comprising contributions to the welfare of the family or other indirect contributions and doing so is contrary to authority. Thirdly, where, as here, a lengthy marriage partnership can be seen to be the “practical union” to which Deane J refers in Mallett, there is a symbiosis between contributions made by each party within their role or sphere; one party is rendered more able to make contributions within their role by reason of the contributions made by the other within their role. References above to one party “freeing up” the other party and to the maintenance of stability within the business are examples.
Indeed, during his evidence the husband referred to a very good example of that symbiosis within the context of the business. He referred to the apparently continual good-natured debate between the construction arm and the marketing arm of the business as to which of the two was more responsible for the business’s success. As he acknowledged, there can be no resolution to the debate because the comparison is between apples and pears. But, significant to the instant discussion, each contributes to the whole by complementing the other and the whole is, as a result of the efforts of each arm, greater than the sum of its individual parts. The same might be said of a union between two people where the nature and form of their partnership is that of a “practical union of both lives and property”.
I reject the notion that justice and equity requires a distinction to be drawn between the contributions of the parties by reason of the husband being possessed of “special skills” or because his contributions can or should be described as “special” (whatever that might mean or be intended to connote).
However, I consider that an analysis of the nature, form and characteristics of the contributions of varying types made by each of the parties renders it just and equitable that any assessment of those contributions should favour the husband.
I am persuaded that in this lengthy marriage there should be such a disparity by reference in particular to the ingenuity and stewardship which the husband has brought to the business outside of the other contributions made to the business by each of the parties.
I consider that those factors have been particularly important in creating an extremely successful business. So, too, those specific contributions in particular have been important in the context of an industry prone to economic vagaries. I accept that the husband’s input into the design of the buildings which the business builds and sells is also a significant contribution in that respect.

Quantification of Contributions - Comparison with other Cases

The assessment of contributions is an exercise performed not only within the specific legislative context earlier referred to, but also within the context of what is now nearly 40 years of decided cases. The “general counsel of experience” of which Deane J spoke in Mallett derives, as his Honour said

(at 640), not in isolation but “… from decisions in previous cases involving questions of fact”. His Honour continued (at 641): “[i]t is plainly important that, conformably with the ideal of justice in the individual case, there be general consistency from one case to another of underlying notions of what is just and appropriate in particular circumstances.”
Mr Kirk SC submits that this Court cannot ignore earlier decisions where the facts can be said to be similar, although his submissions, correctly, recognise that the section requires individual justice, that no two marriages are identical and that, as a result, decisions in earlier cases need to be treated with some circumspection in so far as the results within them might guide the discretion in this, different, case.
It is not, then, suggested that any particular decision (including decisions of the Full Court) is binding as to result, but it is contended that there is a consistency in the range of results which cannot be ignored. Specifically, Mr Kirk SC grounds this argument by reference to a comparison of this case with a tabulation of decisions of the Full Court in what his table’s heading calls “comparable big money cases” (whatever that expression might mean or be intended to connote).
It is convenient to include that table (absent its heading) as follows[21]:
[21]Page 22 of Counsel’s written outline of submissions filed 3 May 2012 [Shading added]. References to the cases tabulated are: JEL (referred to in the table as “Lynch”); Ferraro; Webster & Webster (1998) FLC 92-832; Mclay & Mclay (1996) FLC 92-667; Whiteley & Whiteley (1992) FLC 92-304; and Phillips & Phillips [1998] FamCA 1551.

[Smith]	Lynch	Ferraro	Webster	Mclay	Whiteley	Phillips
Assets at start	Minimal	Minimal	Minimal	Wife beneficiary parent’s trust	Modest	Nominal	Nominal
Period	29 years	16/20 years	28 years	15 years	21 years	27 years	31 years
No. of children	3	4	3	3	1	1	2
Assistance with children by husband	Some	Significant	Negligible	Some	Minor	Average	Limited
Work by wife in business	Some	None	None	Significant	None	Not significant	Significant in early stages
Period post separation	4 years	8 years	1½ years	1½ years	1 year	1 year	3 years
Dependent children (post trial)	None	None	1	3	None	None	None
Trust problems	None	Many	None	$5m children’s trust	?	?	?
Pool	$30M - $40M	$40M+	$12M	$21.3M	$8.8M	$11.3M	$25M
Percentage	?%	27½%	37½%	27½%	40%	30%	40%
Dollars	$?	$10M	$4.5M	$6.6M	$3.5M	$3.4M	$10.3M

In my view, it is appropriate, as counsel suggests, to take account of earlier decisions so as to inform generally the parameters of the discretion. However, care must be exercised; orders in any given case are about effecting individual justice by reference to individual circumstances and it is imperative that reference to those decisions should not be used as a fetter on the wide discretion inherent in the section.
Reference to counsel’s table shows a range of entitlements to the wives in those cases (and it might be observed that in each case it is the wife who receives the lower proportion of the assets) of between 27.5 per cent and 40 per cent. I do not propose to descend into a detailed analysis of each of those decisions; doing so is, in my view, contrary to the principles to which I have earlier referred. I am also conscious of the fact that authorities different to those collated might be produced in an alternative table and be said to be illustrative of a different “range” – a difficulty inherent in all non-exhaustive comparisons. Nevertheless, results arrived at by an appellate court in other cases where there is a reasonable degree of comparability with the case under consideration cannot, if the jurisprudence is to have a genuine semblance of consistency (despite the wide discretion within it), be simply cast aside as irrelevant.

Quantification of Contributions – “The Leap from Words to Figures”

The Full Court in Clauson & Clauson (1995) FLC 92-595 (“Clauson”) observed (at 81,909), in referring to the disparity in contributions arrived at by the trial judge in comparison to that determined by their Honours, that “… in many of these cases reference only to percentages can be misleading; the reality is to be found in the actual figures…” and also, specifically in respect of the “s 75(2) factors” that:
There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries … it is the real impact in money terms which is ultimately the critical issue.[22]
[22] Clauson at 81,911.
I consider that it is the “real worth in money terms” that should inform the assessed difference in contributions between the husband and the wife in this case when the “leap” described by Coleman J in Steinbrenner is performed.
It will be plain from what I have said earlier in these reasons that I consider that there is a disparity in the parties contributions and that, axiomatically, the contributions of the parties should not be assessed as equal. The disparity urged upon the Court by the husband is 40 per cent – that is to say, a difference between the parties of between about $12.9m and about $15.9m. I do not consider that a disparity in dollar terms of that magnitude is properly reflective of the difference in contributions made by the parties over 33 years.
A disparity of 20 per cent between the contributions of the parties – that is to say an assessment of contributions in the percentage of 60 per cent to the husband and 40 per cent to the wife – sees the husband retaining property valued at between about $19.4m and $23.9m and the wife between $12.9m and $15.9m. That is, there would be a disparity of between about $6.5m and $8m by reference to the range in valuations. I consider that assessment to be an appropriate quantitative reflection of the differences in contributions between the parties.

Section 79(4)(e) – The “Section 75(2) Factors”

The assessment required by s 79(4)(e) of the Act “requires the court to take into account, so far as relevant, the various matters set out in that sub-section in determining, in effect, what alteration, if any, should be made to the conclusions already reached on the basis of the parties’ contributions…”.[23] Here, the conclusion already reached has the ramifications in dollar terms just referred to.
[23] Clauson at 81,907.
By reason of the agreements between the parties earlier referred to, each of the parties will see the lion’s share of their entitlement made up of shares in the business’s corporate entities and cash from the sale of the former matrimonial home. The dollar values of their respective entitlements are, of course, very significant.
Counsel for the husband, refers to a number of authorities[24] in submitting that by reason of the size of the entitlement of the wife, the disparity in wealth does not (in this case at least) point, of itself, to an adjustment in favour of the wife. Reference to counsel’s written submissions will see those submissions effectively predicated upon an assessment of contributions in the proportion

70/30 per cent in favour of the husband. The submission is, in my view, more true of the assessment arrived at by me.
[24]Mallett; Dickson & Dickson (1999) FLC 92-843 at 85,872; Farmer & Bramley (2000) FLC 93-060.
The husband’s counsel also refers to future earning capacity and posits significant (indeed, very significant) potential earnings for both parties which, given that the husband takes no salary as a managing director, will come in each case from dividends. Mr Kirk SC does a calculation, again based on a

70/30 per cent division, which would see the wife’s dividend income exceed $1.4m annually. Again, on my assessment, all else being equal and the company retaining its profitability, that income figure may well be higher. It is submitted, and I accept, that any disparity in earnings does not point to any adjustment.
Counsel for the husband submits, and I accept, that notional capital gains tax, other taxes and costs of sale will be shared equitably as a result of the form of orders to be made.
It is true that the wife has suffered health difficulties of some significance, including significant depression. Her psychologist says that “the majority of her symptoms will significantly reduce or disappear altogether” once these proceedings are complete, and the conflict and stress created inherently by them settles. Even if this prognosis proves too optimistic (noting, for example, the evidence of the psychiatrist, Dr P), given the level of capital and income wealth which the wife will have, I do not consider that her health is such that it points to an adjustment in her favour. The same considerations apply to the respective ages of the parties as, in my view, it does to the fact that the husband has a young child with his new wife.
However, against that background, counsel for the husband submits that, in the event that an adjustment is made to the wife of more than the 30 per cent contended for by the husband, the husband’s future stewardship of the company and its direction toward the production of future profits in circumstances where, it is said, the wife will be a “passive director”, should see an adjustment in his favour.[25] Counsel refers in that respect to a matter earlier referred to by me in the context of post-separation contributions, namely that the nature of the wife’s contributions can be seen to have changed as the children became adults and the parties separated.
[25] Although not specified, I assume that this matter is referenced to s 75(2)(o).
I agree that this is a factor that can, and should, be taken into account. I am not, however, persuaded that it should sound in any adjustment. First, the very high level of wealth and income militates against that. Secondly, whilst I accept that the husband continues to make the contributions asserted and that they are likely to be greater than the wife’s, the wife will also continue to make contributions to the business of the type I have earlier identified. Thirdly, the manner in which the parties each receive their entitlements is dictated by the manner in which the parties have chosen to organise their particular partnership. While the receipt by the wife of her entitlement in the agreed manner proposed brings benefits (all being well, an on-going significant income), it also brings burdens – unlike in marriage partnerships with different circumstances, she is not free to take the benefits of a long and economically very successful marriage and do what she would with them. She, like the husband, is tied to that which they together created.
Taken together, I am not persuaded that reference to the relevant factors enumerated within s 75(2) calls for any adjustment to assessment of contributions already arrived at.

Just and Equitable Result?

I have earlier in these Reasons dealt with the form that the orders will take as a result of the agreed position of the parties. Their position, designed to maintain the business that is a tangible manifestation of the parties’ contributions over virtually the whole of their adult lives, is entirely understandable.
I am satisfied that the respective entitlements of the parties effected by a division of the property of the parties or either of them assessed by me to be in the overall proportion 60 per cent to the husband and 40 per cent to the wife is just and equitable and the manner of achieving that result by the adjustment of the parties’ joint 84 per cent shareholding, the sale of the former matrimonial home and the division of chattels to be just and equitable.
As earlier indicated I will formulate orders designed to give the parties, as requested, the opportunity to provide agreed minutes giving effect to same after such consultation with their legal and financial advisers as they might desire. I will also provide a mechanism for the matter to be listed before me in the event that the parties are unable to reach agreement. I make it abundantly plain that I have an expectation that agreement as to the mechanics of the orders will be achieved and, in the event it is not, I will hear submissions on costs if the matter needs to be listed before me so as to myself specify the details of the orders.
I order accordingly.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 July 2012.

Associate:

Date: 6 July 2012.

[2012] FamCA 510

6 July 2012

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