SOAMES and SOAMES - [2020] FCWA 31

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SOAMES and SOAMES [2020] FCWA 31
CORAM: TYSON J
HEARD: 3 and 4 FEBRUARY 2020
DELIVERED : 9 MARCH 2020
FILE NO/S: PTW 2883 of 2016
BETWEEN: MS SOAMES
Applicant
AND
MR SOAMES
Respondent

Catchwords:

FAMILY LAW – PROPERTY – Long marriage – Two adult children – Assessment of contributions – Where the husband made greater initial contributions and superior financial contributions - Where the husband received an inheritance, proceeds of sale of a property and redundancy post separation – Where the husband has expended significant funds post-separation - Failure of the husband to provide full and frank disclosure – Assessment of section 75(2) factors – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Beckerling
Respondent	:	Mr van der Merwe

Solicitors:

Applicant	:	Efficient Family Law
Respondent	:	O'Sullivan Davies

Case(s) referred to in decision(s):

Bevan & Bevan (2013) FLC 93-545
Chang & Su (2002) FLC 93-117
Dickons & Dickons (2012) 50 Fam LR 244
Fotia & Welsh [2013] FCWA 112
Grier v Malphas (2016) 55 Fam LR 107
Holland & Holland (2017) FLC 93-798
In the marriage of Aleksovski (1996) FLC 92-705
Kannis & Kannis (2003) FLC 93-135
Kowaliw & Kowaliw (1981) FLC 91-092
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Reichstein & Reichstein [2006] FamCA 1422
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi (2018) FLC 93-858
Waters & Jurek (1995) FLC 92-635
Watson & Ling (2013) FLC 93-527

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1[Ms Soames] [(“the wife”)] and [Mr Soames] [(“the husband”)] were married for 21 years. They separated in late 2013 under the same roof, before physically separating in early 2014. They have two children, both of whom are now adults. The husband is now 67 years old and the wife is 51 years old.
2Since separation, the parties have been unable to agree on orders by way of alteration of property interests. The proceedings have been complicated by disagreement over the available property, allegations of non-disclosure and disputes regarding contributions, amongst other issues. The husband seeks the parties’ property be divided 75% in his favour, while the wife seeks an equal division.
3These proceedings are governed by the Family Law Act 1975 (Cth). There is no assumption that the wife and the husband should have their property divided or that either has the right to property that is fixed. While each party wants the Court to do so, that is not enough.
4To decide these matters, I must determine the following issues:
Firstly, what is the property of the parties?
Secondly, what is the value of the assets, liabilities and superannuation entitlements of the parties?
Thirdly, is it just and equitable to make an order altering the wife and the husband’s interests in their property? If I decide that it is just and equitable to make an order, then I must determine:
•What have been the parties’ contributions?
•Whether there should be an adjustment in favour of either party, as a result of their respective future needs?
•What outcome is just and equitable to both parties?

WHAT IS THE EVIDENCE RELIED UPON?

5The wife relies upon her affidavits filed 19 October 2018 and 20 December 2019, her financial statement filed 20 December 2019 and the affidavit of [Mr T] sworn 16 January 2020.[1] The husband relies upon his affidavit filed 16 November 2018, the affidavits of the parties two adult sons, [Mr R] and [Mr L], filed 16 November 2018 and his financial statement filed 21 January 2020.

WHAT IS AGREED?

[1] Accepted for filing by consent on 3 February 2020.

6Each party will retain their car, furniture, savings, superannuation, chattels and personal property. The husband will need to make a cash payment to the wife and if he does so, it is agreed he can retain [Property A]. The parties do not agree on what the cash payment should be.

WHAT ARE THE PROPOSALS OF THE PARTIES?

7The wife seeks orders in terms of her further amended minute filed 24 January 2020, as revised during the trial. She seeks the husband pay her an amount equivalent of 40% of the parties’ net property. If the husband fails to do so, she seeks Property A be sold and pending payment, the husband be restrained from encumbering or drawing down on any existing debt secured against Property A, without her consent.
8The husband seeks orders in terms of his amended minute contained in his Papers filed 14 January 2020, as revised. He proposes to pay to the wife such amount to provide her with 25% of the parties’ net property. He opposes any order for the sale of Property A.

WHAT IS THE CREDIBILITY OF THE PARTIES AND WITNESSES?

9Mr T, Mr R and Mr L were not required for cross-examination. I accept their unchallenged evidence.
10Mr T is a clinical psychologist, who treated the wife between 2009 and 2014. He also saw the husband and the children. In Mr T’s opinion, the wife’s traumatic childhood impacted upon her parenting capacity. He considered the parties had different parenting styles and the wife felt unsupported by the husband, in her parenting.
11Mr R and Mr L gave evidence about aspects of each party’s parenting, to which I will refer in more detail below. Both are strongly supportive of their father and critical of their mother. They live with the husband and neither have a relationship with the wife.
12I consider the wife gave her evidence in an honest and candid manner. She made a number of concessions, including that she struggled to recall matters which occurred a long time ago and she had no independent recollection or knowledge of the cost of the renovations to Property A.
13I similarly consider that the husband gave his evidence in an honest and direct manner. He had a good recollection of historical financial transactions. His evidence in relation to recent transactions including receipt and expenditure of his redundancy, inheritance and proceeds of sale of Property B, were surprisingly unclear and generally unsatisfactory. For the Reasons that follow, I am satisfied that the husband has failed in his obligation to provide full and frank disclosure about a number of material matters.
14Having said that, the husband made a number of concessions against self-interest. He was far more generous in describing the wife’s contributions as a parent in cross-examination than in his affidavit.

WHAT IS THE PROPERTY OF THE PARTIES?

15The parties prepared a joint schedule of assets, liabilities and superannuation entitlements, which became exhibit 1. Neither party is seeking a superannuation splitting order. I have adopted the agreed value of each party’s superannuation entitlements, given the manner in which the parties’ approached and presented their cases. However, in adopting that approach, I must have regard to the nature, quality and characteristics of their entitlements. The wife’s superannuation entitlements are in the growth phase. The husband has retired and he is in receipt of pension payments from his entitlements. The husband continues to work and additional contributions are being made to his superannuation by his employer.
16By the conclusion of the trial, only the following items were in dispute.

Company X Investments

17The husband owns two investments: the [Company X Trust] and the [Company X Project]. The husband initially asserted the investments had no value. Shortly prior to trial, he received and disclosed periodic statements for each investment.[2] The correspondence from [Company X] recorded at 30 June 2019 the husband owned 28,297.35 units in the Company X Trust, with an account value of $20,826.85[3] and 26 units in the Company X Project[4] with an account value of $67,210.
[2] Exhibit 10, pages 1–9 inclusive.
[3] Exhibit 10, pages 1-4 – Statement dated 17 January 2020.
[4] Exhibit 10, pages 5-9 – Statement dated 16 January 2020.
18Company X’s correspondence in respect of the Company X Project, confirmed the stated figures did not represent an estimate of value and that significantly different returns had been achieved upon harvest.[5]
[5] Refer to exhibit 10, page 5.
19The wife seeks the Company X Trust be included as worth $20,826.85 and the Company X Project as worth $67,210. Alternatively, she says both items should be excluded from the schedule and in 2023, upon the investments maturing, the proceeds should be divided in accordance with the percentages determined by the Court. The husband now agrees with the latter approach suggested by the wife.
20In the absence of any reliable evidence as to the value of these investments, I am unable to attribute a value. The correspondence from Company X comes with significant disclaimers which confirm the amounts the wife relies upon do not represent an estimate of value. I consider the approach proposed by the wife, now agreed by the husband, is the best way to ensure the actual value of the investments are divided equitably between the parties.
21The Full Court[6] have confirmed it is wrong, as a matter of principle, to refer to any existing legal or equitable interests in property as “excluded” from consideration in applications for property settlement. I propose to include both investments in the joint schedule, with a value as not known.
[6] In Holland & Holland (2017) FLC 93-798.
22I propose to make orders for each investment, upon maturity and after payment of the associated costs, be divided in accordance with the outcome I determine, with the husband to be restrained from dealing with those investments without the wife’s prior written consent and to provide the wife with disclosure on an ongoing basis. The husband conceded those orders were appropriate.

The husband’s credit card

23The husband has a Westpac credit card and owes $5,388.49. The wife accepts the quantum of debt, but opposes the liability being included in the joint schedule. The wife says given her relatively modest financial circumstances and the funds the husband has had access to since separation it is not appropriate for her to share responsibility for his debt.
24I am not satisfied, in the exercise of my discretion, that the husband’s credit card should be included such that the wife shares in the husband’s debt. The debt has been incurred by the husband since separation, for his sole benefit. The husband has had access to income and other significant funds in the post-separation period to which I will refer below, to meet his reasonable expenses. In those circumstances, I do not intend to include the debt in the schedule but will address this issue when considering s 75(2) of the Act.

Disputed Items

25The wife seeks the Court take into account the following sums received by the husband:
(a)Proceeds of sale of [Property C] $672,166
(b)His inheritance $207,732
(c)Proceeds of sale of Property B $482,972
(d)His redundancy $174,975

26The wife seeks the Court, in its discretion, elect to include these amounts as the husband’s notional property. If the Court is not persuaded to do so, she invites the Court to consider whether any of the amounts ought to be included in the schedule on the basis they comprise of a premature distribution of property. Alternatively she says these amounts, in full or part, should be taken into account pursuant to s 75(2)(o).
27The husband disputes the wife’s proposals. His position is that the funds have been received and spent in full on reasonable expenses.
28The power conferred by s 79(1) of the Act is to make orders for the alteration of existing interests in existing property. The Full Court has made it clear that so-called add backs are the exception and not the rule. I have discretion to include an item as notional property, to do justice in the particular case.
29In Bevan & Bevan (2013) FLC 93-545, at paragraph 79 the Full Court observed that notional property:
…which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.

30Justice Murphy, in Watson & Ling (2013) FLC 93-527, said at paragraph 30:
In many other cases, for example those which come within the convenient rubrics of “waste” or “premature distribution”…, legal and equitable title to the money or property will have passed. It could not be said that the money or property is part of the “existing legal or equitable interests” of a party or the parties. The notion that such money or property should be treated as a “notional asset” or “notional property” appears to run contrary to the thrust of the decision in Stanford: at issue is the consideration of two separate questions, the first of which is whether existing legal or equitable interests should be altered.
(original emphasis, citations omitted)

31More recently, the Full Court in Trevi & Trevi (2018) FLC 93-858 said:
[27]The Full Court held in Omacini & Omacini that addbacks fall into "three clear categories": where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
[28]However, the Full Court also made it clear that an addback does not necessarily occur whenever "a party has expended money realised from the disposition of assets that existed as at the date of separation", the Full Court describing such a proposition as "unduly simplistic". An earlier Full Court made the same point, saying that adding back is "the exception rather than the rule".
[29]The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, "the Family Court must take the property of a party to the marriage as it finds it" at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
[30]Two fundamental premises emerge from Omacini and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion — usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Citations omitted)

32The wife considers the husband’s actions prior to and since separation have amounted to waste, and that he has embarked on a reckless or negligent course of conduct which has had the effect of dissipating the asset pool available for division. Her counsel relied on the decision of Kowaliw & Kowaliw (1981) FLC 91-092, where Baker J held that marriage, for most couples, involved an economic partnership in which both parties should share in the economic fruits of the marriage although not necessarily equally. Similarly, financial losses incurred by the parties, or either of them during the course of the marriage, should be shared between them, but not necessarily equally, other than in circumstances where one party has embarked upon a course of conduct designed to reduce or minimise the effective worth of the assets or where one party has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
33I will now turn to consider each of the matters.

Proceeds of sale of Property C

34The husband received [Property BC] by way of an inheritance during the marriage. The property was rented and later subdivided into Property B and Property C.
35In 2010, the husband sold Property C and received net proceeds of sale of $672,166. Approximately $300,000 was applied to meet renovations to Property A including to discharge of borrowings associated with those renovations and to discharge the home loan and investment loan secured against Property A. The husband says the balance was otherwise applied to meet the family’s expenses.
36I accept the husband’s evidence about the costs of the renovations, given the details he provided, his records and recollections of the cost. The wife conceded she had no direct knowledge of these matters.
37In circumstances where these funds were received during the marriage, where by agreement the husband managed the parties’ finances and those funds were applied in the manner described, I am not satisfied there is any basis upon which to include these proceeds, or any part thereof, as a notional asset. The funds have been spent. There was no serious suggestion there were any funds remaining. The wife has not established that the husband’s application of the funds was reckless, negligent or wanton.

The husband’s inheritance

38The husband’s mother passed away in 2015. The husband failed to lead any evidence about his inheritance, including the date and amounts he received, or how the funds had been applied. He did not disclose his mother’s will, the grant of probate or any other relevant documents.
39It appears the husband received approximately $207,732 between September 2014 and April 2015 from his mother’s estate. He deposed, after reviewing his bank accounts, he received three payments of $10,000, $90,000 and $100,000. The bank accounts revealed the husband received around $197,500 in early January 2015. The husband recalled receipt of an additional $10,000 in around August 2014.
40The husband also received $40,000 on 21 October 2014. He could not recall the source of those funds, but accepted it could be part of his inheritance. The husband was unable to proffer any alternative explanation for the source of the funds.
41The husband said he applied the inheritance to pay down debt, which he subsequently drew down upon. The husband otherwise applied the funds for a variety of purposes, including paying $17,500 for a [Country A] visa for the wife, $9,000 to discharge his car lease, payment of credit cards of over $75,000,[7] interest repayments, and fencing for Property B
[7] Between January 2015 to July 2016.
42Each party has a clear obligation to provide full and frank disclosure of their financial circumstances, in a timely manner.[8] The consequences of the Court finding that a party has failed to do so, can result in the Court taking a “robust view” about a party’s financial position.[9] The duty to disclose is absolute and whether the failure to disclose is wilful or accidental, such failure may support the Court erring on the side of generosity to the party who might otherwise be disadvantaged by the lack of candour.[10] It is not the role of the Court to audit a party’s financial records. Each party is required to present evidence as to their financial position in a clear and understandable form.[11]

[8] Reichstein & Reichstein [2006] FamCA 1422 at [80].
[9] Chang & Su (2002) FLC 93-117.
[10] Kannis & Kannis (2003) FLC 93-135.
[11] Fotia and Welsh [2013] FCWA 112 per Walters J, at [96] to [102].
43Rule 12.02 and 13.04 of the Family Law Rules 2004 (Cth) requires each party to provide specific documents by way of disclosure. Rule 13.04 requires disclosure of any disposal of property made by a party that may defeat or deplete a claim, since separation.
44The wife’s criticisms of the husband for his failure to provide full and frank disclosure in relation to his inheritance were fairly made. The husband was legally represented throughout these proceedings. He had a clear obligation to provide full and frank disclosure about these matters. He failed to do so.
45However, in the exercise of my discretion, I am not satisfied the husband’s inheritance should be added back or treated as notional property. There was no serious suggestion that any of the funds still existed. At least some of the funds were applied for the wife’s benefit. Some funds were applied to reduce liabilities. In those circumstances, I am not satisfied the husband’s expenditure was reckless, negligent or wanton. However, the husband clearly has had the unilateral benefit of significant funds. I am not satisfied all of his expenditure was reasonably explained, where he had an onus to do so. I intend to take these matters into account, in a careful consideration of the husband’s receipt and application of the funds, in s 75(2)(o).

Proceeds of sale of Property B

46The husband sold Property B in May 2018 and received $482,972. The husband’s solicitors advised the wife’s solicitors the net proceeds of sale would be held on trust, in an interest-bearing account, pending outcome of these proceedings.[12] That did not occur.
[12] Exhibit 10, page 154.
47The husband applied $270,000 to discharge the Westpac Rocket loan account ending [XXXX] and the balance of $210,000 was paid into his Westpac eSaver account. On 6 July 2018, the husband withdrew $18,762 from the Rocket loan account to pay his credit card. On 28 June 2018 the husband transferred $200,000 from the Rocket loan account into his classic account. Again, the husband led no evidence about the receipt nor application of the sale proceeds. It was left to the wife’s counsel to attempt to ascertain how the funds had been expended, through an analysis of the husband’s bank statements and in cross-examination.
48The husband again failed in his obligation to provide full and frank disclosure. The receipt by him of nearly half a million dollars, after separation and while the proceedings were on foot, was unequivocally a material matter which he had a duty to disclose. His actions directly contradicted the assurance provided by his solicitors.
49It appears from the sale proceeds the husband paid $75,000 to the wife by way of partial property settlement, around $55,000 in legal fees, approximately $5,000 in TAFE fees for the adult children and the balance, was largely unaccounted for and appear to have been applied towards the husband’s discretionary expenditure. The husband was unable to proffer any satisfactory explanation as to why that expenditure was reasonably incurred, given he was then in receipt of his superannuation and income.
50The partial property payment and the husband’s paid legal fees are reflected in the schedule. In the exercise of my discretion I am not satisfied the proceeds of sale, in whole or part, should be added back or treated as notional property. Instead, I intend to take these matters into account, in a careful consideration of the husband’s receipt and application of the funds, and his failure to provide full and frank disclosure.

The husband’s redundancy

51On 30 June 2016 the husband accepted a voluntary severance from [his employer] and resigned. He received $174,336.88 net, inclusive of voluntary severance, leave entitlements and an incentive payment.[13] The husband subsequently received a refund from the Australian Taxation Office of $5,470,[14] bringing the total payment to $179,806.
[13] Exhibit 10, pages 51-52 – Letter from husband’s employer to the husband dated 4 July 2016.
[14] See exhibit 10, page 42 – Income Tax Return Tax Estimate for the husband for the year ending 2017.
52Again, the husband did not refer to his redundancy payment nor how he had applied the funds in any of his sworn material. He did disclose a number of the relevant documents. This issue was explored at some length in cross-examination.
53From the redundancy, the husband paid $80,211 to the Rocket home loan which he later drew down upon, and he expended the balance. His evidence as to how the funds had been spent was vague and unsatisfactory. Based upon his bank statements[15] around $78,407 was applied to meet credit cards and $15,600 was withdrawn in cash, over an 18 month period.
[15] Exhibit 10, pages 132 to 145.
54The husband’s counsel submitted those combined amounts equated to approximately $1,200 per week. At that time the husband was also in receipt of his superannuation benefits of around $1,000 a week; he had received his inheritance about 18 months prior and from February 2017 the husband was also in receipt of a salary. In light of those circumstances, and given the husband’s failure to lead any evidence about these matters, I cannot be satisfied that the husband’s expenditure was reasonable.
55The wife had an interest in the husband’s redundancy, given her contributions during the marriage, which enabled the husband to work on a full-time basis. Her criticisms were warranted of the husband’s expenditure, other than to discharge the home loan. The husband failed to establish that his redundancy was applied to meet reasonable living expenses, which he was otherwise unable to meet from his available income.
56I have already referred to the Full Court’s comments in Trevi (supra), Bevan (supra) and Murphy J’s comments in Watson & Ling (supra).
57In the circumstances and in the exercise of my discretion, I do not intend to include as notional property the husband’s redundancy. Instead, I will take this into account noting the husband’s receipt and expenditure of those funds.
58I am satisfied that the known property of the parties is as follows:[16]
[16] Ignoring cents and where values are nil.

Assets	Ownership	Value
Westpac eSaver	The husband	$14,490
Westpac Classic Plus	The husband	$5,447
Paid Legal Fees	The husband	$54,590
[Motor Vehicle A]	The husband	$9,900
Household Contents	The husband	$9,000
Box Trailer	The husband	$500
Company X Trust	The husband	Not known
Company X Project	The husband	Not Known
Property A	The husband	$980,000
ANZ Access Advantage	The wife	$973
ANZ Progress Saver	The wife	$58
Interim property settlement	The wife	$75,000
[Motor Vehicle B]	The wife	$11,400
Proceeds of sale of shares	The wife	$3,845
Proceeds of sale of piano	The wife	$2,000
Household Contents	The wife	$1,500
Sub-total		$1,168,703
Liabilities
Westpac Rocket Repay home loan	The husband	$395
Sub-total Liabilities		$395
Total Net Assets Excluding Superannuation		$1,168,308
Superannuation
[Company W] Allocated Pension Fund	The husband	$665,830
[Company W] Superannuation Fund	The husband	$58,779
AMP Flexi Super	The wife	$113,981
Total Superannuation		$838,590
Net Assets Including Superannuation		$2,006,898

IS IT JUST AND EQUITABLE TO MAKE AN ORDER?

59The parties have been separated since late 2013. Following separation and where there is no longer any ‘common use’ of property,[17] both parties seek to alter their property interests and to separate their financial affairs. In these circumstances, I am satisfied that it would be just and equitable to make an order by way of alteration of property interests.

BACKGROUND FACTS?

[17] See Stanford v Stanford (2012) 247 CLR 108.

60The husband was born on [in] 1952. The wife was [in] 1968.
61The parties met in 1988/1989 and became engaged in December 1991. They married [in] 1992. They separated in late 2013, when the wife moved into [a spare] room at Property A.
62They have two children: Mr R born [in] 1996 and Mr L born [in] 1998.
63The parties commenced living together at the date of marriage. The husband was then working as [a supervisor]. The wife was working [as an administrator].
64At the date of marriage the husband was 39 years old. He had nominal savings and superannuation. He owned vacant land at Property A, which had been gifted by his aunt and uncle, in 1990/1991. When Property A was transferred to the husband, it was assessed for stamp duty purposes as worth $65,000.
65The husband says he also had the proceeds of sale of Property D, which he sold in 1989 for $85,511. There was no independent evidence to corroborate the balance of the sale proceeds which the husband retained at the date of marriage. At that time, the husband had commenced construction of a home at Property A in 1991, and acknowledges the proceeds of sale were applied towards the construction. He otherwise met the costs of construction through a mortgage of $70,000.
66At the date of marriage, the wife was 24 years old. She owned a motor vehicle worth around $10,000, a payment from [her employer] of around $30,000, together with nominal savings and superannuation.
67In 1992 the parties moved into Property A upon completion. It has been the family home since.
68In 1995 the husband commenced employment with [Company A], [in] a [senior role]. In 2002 he was promoted to [another senior role], earning between $52,000 and $108,000 per annum. He continued to work for Company A on a full-time basis throughout the marriage.
69The wife continued to work [as an administrator], up until the birth of Mr R in 1996. She thereafter remained at home as a full-time homemaker and parent. Between 2000 and March 2001 the wife worked on a part-time basis as [a trainer], earning modest income. From March 2001 she commenced working full-time as a [liaison for a volunteer program] earning approximately $10,000 to $27,000 per annum. In 2008 she commenced working on a permanent, casual basis with [a not for profit organisation], earning approximately $14,000 to $18,000 per annum. The wife continued in that role until 2012.
70The parties had what can best be described as a traditional marriage; the husband was the primary breadwinner and responsible for managing the parties finances, while the wife was the primary homemaker and parent. The wife acknowledges the husband made contributions as a homemaker and parent. The husband acknowledges the wife made financial contributions.
71There is no dispute that the wife was the person primarily responsible for the children’s care when they were young including attending to their medical needs, taking them to and from school until they were old enough to walk, arranging their extra-curricular activities and otherwise attending to their needs.
72The husband worked on a full-time basis, which resulted in him being away from home between 7:30am until 5-6pm each day. From 2002 he was also working on-call one week each month. The husband was also required to travel for work, for up to a week, approximately four times each year. The husband was a [football coach] and engaged in the boys’ extra activities.
73The husband’s aunt and uncle lived at Property BC adjacent to Property A. The husband’s uncle passed away in 1996. His aunt suffered from dementia, which eventually led to her moving into care. The wife assisted in the support of the husband’s aunt prior to her passing away in 2003. The wife also assisted in cleaning out Property BC after her death.
74The parties initially had joint accounts, however at an early stage, they moved to separate bank accounts. The husband paid housekeeping to the wife and she had access to a secondary credit card.
75The husband managed the family’s financial affairs. The husband accepts the wife had no knowledge or involvement in those matters. As a result, since separation, the wife had many questions about the parties’ financial circumstance. The husband’s failure to provide disclosure in a timely manner, combined with the wife’s lack of knowledge about their finances, appeared to fuel suspicions.
76The wife was doubtful of borrowings during the marriage and questions why debts were incurred, given the available income. Since separation, her concerns have been amplified, in circumstances where the husband has continued to increase and draw upon borrowings, while having the benefit of significant sums in the form of his redundancy, inheritance and the sale proceeds of Property B.
77The husband explained his income was never adequate to meet the family’s expenses and as a result, he periodically drew down on facilities secured against property, which were either discharged upon the sale of property or the injection of funds.
78The wife was unaware of these arrangements, which were managed by the husband, with her consent. The parties appear to have lived a lifestyle beyond their income, including each party’s salary and the rental income from Property BC. They sent their children to private schools, they renovated their home and otherwise enjoyed a good standard of living.
79That finding is supported by the following:
(a)In the early parts of the marriage, no significant repayments were made towards the mortgage on Property A, when both parties were working.
(b)In 2005 the husband refinanced with Challenge Bank. He borrowed $130,000 opening a Rocket Repay home loan [XXXX], and a Rocket Equity Access loan account [XXXX].[18] The funds were applied to discharge the existing mortgage of approximately $62,000, a personal loan and overdraft of $29,000, leaving a balance of approximately $35,700. He also borrowed $220,000 by way of a Rocket Access Equity loan.[19]
(c)A review of the parties’ finances reveals that historically borrowings have been paid off and then subsequently drawn on to meet various living expenses.
[18] Exhibit 10, page 71 – Letter from Challenge Bank to the husband dated 16 September 2005.
[19] Exhibit 10, pages 69-70 – Letter from Westpac to the husband dated 29 August 2005.

80In 2009 Property A and Property BC were subdivided into three blocks. Following subdivision, the parties continued to occupy Property A which increased in size, and the husband owned Property B and Property C. There was no evidence about the costs of the subdivision, nor how those costs were met.
81That same year, the husband refinanced again with Westpac borrowing $420,000.[20] The funds were applied to discharge the Rocket Repay home loan in the sum of $121,000 and the Rocket Equity Access loan in the sum of $220,000.
[20] Exhibit 9 – Loan Offer for Westpac Rocket Investment Loan.
82The husband sold Property C in October 2010 and received net proceeds of sale of $672,166, to which I have already referred. The proceeds were applied to discharge the parties’ borrowings in full, however the loan facilities were not extinguished. Part of the proceeds met the renovation for Property A, which included construction of an extension, a workshop and a swimming pool. Additional costs to complete the renovations were incurred after refinancing.
83The parties engaged a builder and architect and both the wife and the husband assisted in the renovations: they sourced quotes and selected fittings and fixtures.
84In 2010, following receipt of the proceeds of sale of Property C, the parties were debt free. By late 2013, the Westpac Rocket loan had increased to owe around $98,000. The Rocket statements reveal expenditure on general living, holidays and other household items.[21]
[21] Exhibit 10.
85There is a dispute between the parties about their respective parenting contributions from 2010.
86The wife’s case is that she continued to parent in difficult circumstances. Her relationship with the boys became fraught; both boys were physically and verbally abusive towards her; they treated her with contempt and would not follow her instructions. Despite those difficulties, the wife continued to care for the children, to the best of her ability, often for lengthy periods while the husband was at work. The wife accepts she struggled to cope at times and when the husband was at home, he would assist in parenting.
87The husband’s case is that from February 2010 the wife began to withdraw from the family and stepped back as a parent. He was then required to intervene more.
88Mr R says from around 2013 the wife began to withdraw from the family, but she continued to attend to the household and their care, which is corroborated by the wife.
89In my view, it is helpful to understand some of the historical issues relevant to the children, to put in context the later difficulties.
90When Mr R was around seven years old, he was diagnosed with [a medical condition]. He required regular medical appointments, prior to a decision that he required surgery.
91Mr R was in hospital for around six to eight weeks before undergoing major surgery. He remained in [Hospital A] for around two weeks. The wife was primarily responsible for caring for Mr R, including taking him to most of his specialist appointments. The husband assisted when he was not working. Both parents spent time with Mr R at Hospital A including overnight.
92An unexpected side effect of Mr R’s surgery was difficulty toileting, which led to [further complications]. It took some time and multiple medical specialist appointments before Mr R’s condition was diagnosed. While the husband was critical of the wife’s treatment of Mr R at the time, he accepted she was proactively trying to attend to Mr R’s needs, including obtaining second opinions.
93Mr R missed a significant amount of school as a result of his health and hospitalisation, which led to difficulties in his academic achievement. Mr R became angry, frustrated and began to display increased anxiety and anger. The wife arranged for Mr R to see a psychologist, [Ms V].[22] Ms V recorded the reason for the referral was Mr R struggling to cope with his disease, he appeared angry all the time and was clashing with his mum, and there were difficulties with communication between specialists, parents and the school. Ms V prepared an assessment regarding Mr R’s academic achievement and the impact of his illness upon his self-esteem and mental health.
[22] Exhibit 13 - Confidential Psychological Report for Mr R dated 2 August 2004.
94When Mr L was in primary school, he began to display anxiety and had difficulties managing his anger. Mr L contacted a children’s helpline and was then referred to a counsellor. He also engaged with the school counsellor. The wife subsequently arranged for Mr L to see Mr T.
95The husband was unaware that Mr L also began self-harming. The wife arranged ongoing appointments between Mr L and his counsellor. Mr L says he was very angry as a child: he would often destroy things and punch holes in his door, to vent his anger. He describes his mother as angry and taking her anger out on him.
96Mr R says his mother would often shout and became physically aggressive in an effort to get the boys to do as she wanted. She threw a chair which hit Mr L when he was around 11 or 12.

97Mr L broke both of his arms in an accident. While there is some confusion about the date of the incident, it appears likely it occurred in late 2011. Mr L underwent surgery and by April 2012, no further treatment was required.[23]
[23] Exhibit 12 - Correspondence from [Dr W] to the husband dated 19 April 2012.
98In around 2011 a report was made to the Department for Child Protection concerning Mr L.[24] The husband and the wife consider the report was made by Mr L and his friend.
[24] As it was then known.
99Both parents participated in the Departmental investigation, which did not substantiate the allegation of harm or risk of harm. On 24 June 2011 the Department advised they had closed their file.[25]
[25] Exhibit 11 - Correspondence from the Department for Child Protection to the parties dated 24 June 2011.
100The husband considers after the Departmental investigation, the wife felt betrayed by Mr L which she denies. He alleges that triggered her withdrawing from family life and spending significant time on [social media], from 4 am to 8 pm on a daily basis. The wife denies she spent anywhere close to that time on [social media]. I accept her evidence, in preference to the husband’s, given on his own case he was at work most days between 7.30 am and 5–6 pm. She accepts she formed friendships and found support through [social media] contacts.
101The wife says following the Departmental investigation, both boys became increasingly aggressive towards her including swearing, yelling, damaging the house, breaking furniture and even physical assaults. The husband acknowledges Mr L punched doors, on one occasion he heard Mr R swear at the wife. The husband otherwise says he did not see any of the behaviour which the wife complains of.
102The husband accepts there was mutual aggression between the boys and their mother for several years prior to separation, the boys often ignored their mother and there were frequent verbal outbursts between them.
103I accept from around 2011 Mr R began to shirt-front the wife and he became increasingly physically aggressive towards her.
104In around 2012, Mr R and the wife had an argument. Mr R told his mother to “shut the fuck up”. He says she would not stop yelling and hitting him. She took his belongings and threw them outside. Mr R then put his mother into a headlock and threw her to the ground.
105The husband says the only physical altercation he witnessed was between Mr R and the wife occurred on a date he cannot recall. He and the wife were sitting at the kitchen table. Mr R became angry at a comment his mother made. He then approached his mother and punched or kneed her in the side. The wife said she was going to call the police. The husband told her not to and said they should talk about what happened.
106The husband accepted that Mr R violently physically assaulted his mother on that occasion. While he denies seeing Mr R placed her in a headlock or shirt-front her, he accepts what the wife reported is likely. I accept the wife’s evidence in this regard.
107The wife consulted Mr T, in an effort to learn strategies to assist her parenting. She saw him nine times between 2009 and 2014. The husband and the boys also attended on Mr T. Mr T recorded his impression that the wife was reactive as a parent, while the husband was relaxed. The wife described the husband as more of a friend to the boys, than a father. It is clear the parties had different approaches to parenting. Regardless of those approaches, the wife was the person who shouldered the bulk of the parenting responsibilities. The wife says she never meant to be abusive but did her best.
108Mr R and Mr L each depose to various incidents in which they say the wife was physically and verbally abusive towards them. I accept their unchallenged evidence. I have already referred to two incidents in which Mr R was physically aggressive to his mother. From around 2011/2012, when the wife asked the boys to do things, they would often ignore her, which would result in the husband intervening when he was at home.
109The husband accepts the wife was the disciplinarian, which was required, so he decided to be more of a counsellor and communicator with the boys. He did not criticise the wife for taking on that role.
110The wife’s relationship with both boys deteriorated. By late 2013, the wife was no longer taking either boy to school, nor was she involved in their activities. The husband had arranged with the school to stop calling the wife to report when the children had failed to do their homework or to report about other behaviours, which caused her distress.
111The catalyst to separation appears to be an incident when Mr R was in year 12 and refused to go to school. Both boys became aggressive. The husband was working away. The wife rang the husband to say she could not cope. The husband spoke to the boys the next day and they then did attend school.
112The wife felt unsafe and unsupported continuing to parent, particularly given the times she was home alone with both boys. These matters took a toll on her mental health. She became depressed and was prescribed medication. The wife considered self-harm.
113In October 2013 the parties separated, but continued to live under the same roof. In December 2013 the wife travelled to Country A and [Country B], returning in January 2014. She then vacated Property A, where the husband has remained.

Circumstances since Separation

114At the time of physical separation in 2014, Mr R was 17 years old and Mr L was 15 years old. Since then the husband has been solely responsible for the children’s care. He has continued to work on a full-time basis and acknowledges given the ages of the children, they were largely self-sufficient. He continued to meet the costs of the private school fees, of around $12,000 per annum until each boy completed high school.
115In March 2014 the wife moved to Country A. The husband joined her in January 2015 and sought to reconcile. The wife returned to Australia in March 2015, when the husband paid for her Country A visa application.
116Between 5 June and 8 October 2015 the husband paid $100 per week to the wife, to assist in her living expenses. The wife was otherwise financially assisted by friends. At times she stayed with friends and house-sat. She had no fixed address or home.
117In 2016 the husband took a voluntary severance package, to which I have referred. He was 64 years old at the time. He then retired and ceased working until 2017, when he commenced a 13-week contract working three days each week as a [consultant]. He has since continued to consult and work.
118In July 2016 the wife received an inheritance of $5,664 from [Ms E], which she spent on her living expenses.
119In August 2016 the parties divorced. In August 2017 the wife commenced the current proceedings.
120In 2018 the wife commenced working on a casual basis [in community health], earning around $810 each fortnight. She also received Newstart Allowance of $527 per fortnight. She completed a Certificate 3, with the support of Centrelink. In August 2019 she moved into her own rental accommodation.

WHAT ARE THE CONTRIBUTIONS OF THE PARTIES?

121The authorities establish in assessing contributions as required by the Act:
(a)The Court must weigh and assess the parties’ respective contributions, taking into account contributions:
…of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.[26]
(b)The ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…”[27]
(c)The process required by s 79 is the exercise of a wide discretion: it is not a mathematical or accounting exercise.[28]
(d)“…the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage”.[29]
(e)Contributions to the welfare of the family must be taken into account in a substantial and not a token manner.[30]
[26] In the marriage of Aleksovski (1996) FLC 92-705 at 83,437.
[27] Norbis v Norbis (1986) 161 CLR 513 at 524.
[28] Dickons & Dickons (2012) 50 Fam LR 244 at [25].
[29] As the Full Court expressed in Dickons (Ibid) at [21].
[30] See Mallet v Mallet (1984) 156 CLR 605 at 636 per Wilson J – cited with approval of the Full Court in Dickons (supra) at [19].

122Assessing the parties’ respective contributions, I am mindful of what was said by Murphy and Kent JJ in Grier v Malphas (2016) 55 Fam LR 107 at [135] to [136] where their Honours stated:
What skill or skills a person brings to a relationship which are said to result in the making of money or accumulation of capital is no more or less relevant than the skill set a person brings to a relationship as a homemaker and parent, or as the performer of two roles as a homemaker and parent and income earner. The "skill set" or "potential" of "talent" a party brings to the role or roles which the parties have determined each will undertake in the relationship is, for s79's is purposes, relevant only to how those attributes manifest themselves in what s79 says must be considered.
….
It remains the case that, in many property cases litigated in this Court, differing roles are adopted by the parties, with one of the parties predominating the acquisition of capital and income for the family, with the other predominating care of the home and the parties child or children and often, also taking on a second role of earning (and often subsidiary, or lower) income. Importance must be attached to the role of each by reference to the particular circumstances of the case.

123This was a long marriage. Both parties worked hard, for the benefit of the family. The husband was the primary income-earner and his financial contributions were greater than the wife’s. The wife also made financial contributions through her employment. The wife’s contributions to the husband’s redundancy was as real and substantial as her contributions to his earnings and accumulation of superannuation.
124Both parties made non-financial contributions as a homemaker. The wife was the person primarily responsible for running the home and attending to household chores including cooking, cleaning and laundry, which she continued until separation. That is corroborated by Mr L and Mr R.
125In my view, the husband over-stated his parenting contributions, at the expense of properly recognising the wife’s contributions. Mr L and Mr R corroborated the wife’s evidence in terms of her being the primary parent, while the husband worked long hours. The husband was not generally available until the evenings and on weekends. That is not a criticism of the husband. It is simply an observation as to how the parties’ structured their lives. The wife would primarily care for the children, attend and arrange for their medical appointments, attend their extra-activities and to their needs. The husband participated when he could.
126From around 2011/2012 the wife experienced difficulties parenting, which was challenging given the boys behaviour and medical needs. I am satisfied the wife did her best, in trying circumstances, which included the husband being absent due to his work commitments and the wife’s limitations. While the wife began to withdraw from the family as a result of her deteriorating relationship with the boys, she continued to run the household and parent. The husband provided additional assistance, when he was available.
127I am readily satisfied the husband’s contributions were greater than The wife’s, with regard to:
(a)The husband’s greater initial contributions in terms of Property A and funds applied towards the costs of construction. Property A became the family’s home, which the parties have utilised to secure borrowings. It remains an asset today. I am unable to make any findings as to the precise value of the husband’s initial contributions, given the available evidence.
(b)The husband’s inheritance of Property BC. While the wife assisted in the care of the husband’s late aunt, I accept the inheritance is a financial contribution for which he alone is to be given credit. The property was retained, rented then subdivided and not sold until 2010 in relation to Property C and in 2018 for Property B. The wife made indirect contributions towards the retention of both properties.
(c)The husband’s greater contributions post-separation, including his ongoing service of debts on Property A and his sole care of the boys, physically and financially. Mr R turned 18 in the year after separation and Mr L turned 18 three years’ after separation. Further, the husband’s inheritance from his mother’s estate requires recognition.

128The parties’ marriage was around 21 years. The post-separation period is around six years. It is necessary for me to now move from an evaluation of contributions to a quantitative assessment of that evaluation, which has been described as a “leap” from words to figures.[31]
[31] Coleman J said in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234].
129I have carefully considered the parties’ differing contributions during the marriage and up until the date of trial. In my assessment, by reason of contribution, the percentage division should be 65% to the husband and 35% to the wife. The net assets and superannuation entitlements of the parties are worth $2,006,898. The effect of this finding as to contribution is that the husband is entitled to receive property and superannuation to the value of $1,304,484 and the wife is entitled to receive property and superannuation to the value of $702,414.

SHOULD THERE BE ANY ADJUSTMENT IN FAVOUR OF EITHER PARTY?

130The husband is 67 years old. He has [two ongoing medical conditions] both of which are managed. There was no admissible evidence that his health impacted upon his capacity to work.
131The husband earns $330 per week gross by way of salary and $209 per week from consulting. He receives $1,000 per week from his superannuation. He continues to work on a casual basis with [his current employer in Town A] for around 1 ½ days each fortnight. The husband expects to continue to work and consult for the following 18 months. There is scope for him to increase his work, from the current 12 hours to 20 hours each fortnight. He is reluctant to do so, given the travel time to Town A.
132While the husband retired in 2016, he has continued to work since 2017. He intends to remain working, explaining he enjoys the mental stimulation.
133The wife is 51 years old. She enjoys good health. She continues to work in community health earning approximately $1,100 gross each week.
134The property and financial resources of each of the parties has already been identified earlier in these Reasons.
135There are no children under the age of 18 years. Mr R is now 23 years of age and Mr L is 21 years of age. Both boys seem to now work, on a limited basis. They remain living with the husband.
136Each party set out their personal commitments in their financial statements and incur the usual expenses associated with their support.
137The husband lives at Property A and enjoys occupation of the property, which is debt-free. The wife lives in rental accommodation.
138Neither party asserted they were responsible to support any other person, or that they had re-partnered. While the husband refers to the boys continuing to live with him, there is no application for adult child maintenance.
139Both parties have superannuation entitlements, the agreed values of which are reflected in the schedule. The husband has been in receipt of payments from his superannuation since 2016. The wife is not yet eligible to access her entitlements given her age.
140There is a significant disparity in the parties’ entitlements: the husband has superannuation worth approximately $724,000 while the wife has superannuation worth approximately $114,000. However, I am conscious of the possibility of “double counting” these entitlements. I have given careful consideration to the nature, quality and characteristics of the husband’s entitlements. I do not consider this should be regarded as a particularly significant s 75(2) factor, as the value has been included in the asset pool and I have taken the wife’s contributions to the husband’s superannuation into account. The husband has elected to take his entitlements by way of pension payments, which presently represent an important benefit to him, however that may mean he will not have access to the lump sum as reflected in the schedule. This was not the topic of any expert evidence.
141Both parties are continuing to work and contributions are being made to their superannuation through their employment.
142The parties enjoyed a comfortable standard of living during their marriage. Since separation the wife’s standard of living has declined, in circumstances where she has not had stable accommodation and been reliant on others to assist in her financial support, prior to gaining employment. The husband made only modest payments to assist the wife for a short period in 2015.
143In contrast, the husband’s standard of living has not deteriorated since separation. Both parties are entitled to a reasonable standard of living. In my view, the parties’ respective incomes, together with the value of the property available for division is sufficient to satisfy this requirement.
144There is no an application for maintenance.
145Neither party suggested any proposed order would impact upon a creditor’s ability to recover their debt.
146The parties were married for over two decades. I am satisfied the duration of the marriage impacted upon the wife’s capacity to earn an income, given her parenting commitments. However, since separation, she has completed further studies to improve her income earing capacity.
147While I have ignored the husband’s credit card debt, I accept this is a liability he will need to repay.
148In terms of s 75(2)(o), the husband’s expenditure of funds post-separation, for his unilateral benefit, are factors that need to be taken into account, to do justice between the parties. The husband has had access to over $850,000 since separation, through his inheritance, his redundancy and the proceeds of sale of Property B. In relation to those funds, I accept:
(a)Part of the proceeds were applied to discharge debts. However, significant monies were later drawn down against those facilities. For example: on 5 January 2015 $197,532 was paid into the Rocket account, with the husband withdrawing $190,000 on 12 January 2015: on 12 July 2016 $174,975 was paid into the Rocket account, with the husband withdrawing $86,770 on 18 July 2016.
(b)From the sale of Property B, $75,000 was paid to the wife and $55,000 was applied to meet the husband’s legal fees, both of which are reflected in the schedule.

149I am unable to quantify the exact amounts which the husband has otherwise spent, given his failure to provide full and frank disclosure. Further, it is impossible to be precise as to the funds the husband benefitted from given his application of moneys to reduce borrowings, which he later drew down upon.

150The wife’s criticisms of the husband’s expenditure of significant funds, primarily for his own benefit, post-separation, were fairly made. The wife’s counsel described the husband as living wildly beyond his means. The husband asserted he continued to manage finances in the same manner as he had during the marriage, namely drawing down on borrowings to supplement the shortfall between his income and the outgoings. I have a number of difficulties with that evidence:
Firstly, the husband’s explanation was contradicted by his sworn evidence. The husband’s financial statement affirmed in 2017[32] deposed he was then retired and in receipt of superannuation payments of $943 a week, with personal expenditure of $791 a week. He then had a surplus of income over his expenditure by over $150 each week. The husband’s financial statement affirmed in 2018[33] deposed he was in receipt of superannuation payments of $951 a week, with personal expenditure of $974 a week, leaving a shortfall of $23 each week. The husband deposed that he met the costs of cars and holidays from his income.
Secondly, while the husband suggested his commitment to pay private school fees was relevant, he ceased incurring fees for Mr R from 2014 and for Mr L from 2016.
Thirdly, the husband occupied Property A with modest outgoings. On his own evidence, the husband had surplus income to service the secured debts prior to discharge of those liabilities.
Finally, the husband was continuing to work up until mid-2016, earning over $100,000 per annum. Since that time, he has been in receipt of superannuation payments, to which I have referred. He has resumed working in 2017. In those circumstances, the husband has had significant income available to him, to meet his reasonable living expenses.
[32] Exhibit 4 - financial statement filed 5 October 2017.
[33] Exhibit 5 - financial statement filed 16 November 2018.

151Doing the best I can with the available evidence, on a conservative calculation, since separation the husband has personally expended not less $292,000: $94,000 from his redundancy, at least $100,000 of his inheritance[34] and $98,000 from the sale of Property B.[35] I accept the actual amount which the husband has benefited from, to the exclusion of the wife, is likely to be significantly higher, given the additional monies which he drew down against borrowings.
[34] Being the amount he received less the payment for discharge of the car lease and the wife’s visa.
[35] Being $210,000 plus the $18,000 he redrew to meet his credit card, less the partial property settlement order and payment of his legal fees.
152Those funds have been unilaterally spent by the husband, for his personal benefit. The wife has not had access to anything close to those amounts. In light of the available property pursuant to my findings, the husband’s unilateral access to and expenditure of these sums are matters which require recognition.

Assessment of Section 75(2) Factors

153The purpose of an adjustment for s 75(2) factors is to assist the Court in arriving at a just and equitable result.[36] The objective of the section is not to equalise the financial strengths of the parties, but rather to effect a redistribution, should the Court consider it just and equitable to do so.[37]
[36] See Waters & Jurek (1995) FLC 92-635.
[37] Wilson J in Mallet v Mallet (1984) 156 CLR 605.
154I have considered carefully the parties’ respective positions. The most relevant factors which require consideration are the disparity in the parties’ ages and income earning capacity, together with the husband’s expenditure of significant sums since separation, in excess of amounts the wife had access to or benefited from. Those funds no longer exist and accordingly the asset pool has been reduced.
155The husband is older than the wife and will have a much shorter working life ahead. The husband continues to work and enjoys the benefit of ongoing income and contributions being made to his superannuation, combined with the receipt of pension payments from his superannuation. The wife works on a full-time basis and receives less than the husband from all his sources of payment. She will have a longer working future than the husband, being 16 years younger.
156Having balanced all of the relevant factors and exercising the broad discretion which I have, I consider an adjustment of 9.5% in favour of the wife is appropriate. 9.5% amounts to $190,655. I consider that will achieve a just and equitable outcome.

Section 79(4)(d), (f) & (g)

157The orders proposed by each of the parties will not have any impact upon the earning capacity of either of them.

JUST & EQUITABLE

158The total of the parties’ property is $2,006,898. The property of the parties will be divided as to 55.5% or $1,113,828 to the husband and 44.5% or $893,070 to the wife. There is a differential of 11% or $220,758.
159I must consider the practical effect of the proposed orders. For the assistance of the parties, I have set out below what each party is to retain:

Asset	The husband to Retain	The wife to Retain
Property A	$980,000
Westpac savings	$19,937
ANZ savings	$1,031
Motor Vehicle A	$9,900
Motor Vehicle B	$11,400
Box Trailer	$500
Household contents	$9,000	$1,500
Paid legal fees	$54,590
Sale of shares and piano	$5,845
Interim property settlement	$75,000
Subtotal Assets	$1,073,927	$94,776
Less Rocket Repay home loan	$395
Subtotal Liabilities	$395
Superannuation
Company W Funds	$724,609
AMP Flexi	$113,981
Subtotal Superannuation	$725,609	$113,981
Net Property and Superannuation	$1,798,141	$208,757
Cash Payment	-$684,313	+$684,313
Total	$1,113,828	$893,070
Percentage	55.5%	44.5%

160As foreshadowed, I will provide that upon maturity, the Company X Investments be divided as to 55.5% in favour of the husband and 44.5% in favour of the wife.
161I propose the husband have two calendar months in which to pay the wife the lump sum. I consider that is sufficient to afford the husband time to make arrangements to pay, while balancing the wife’s interests in payment. I am not satisfied it is appropriate at this time to make orders by way of enforcement, if the husband defaults in paying the wife. There was no evidence to suggest he was not likely to comply with Orders. Further, given the husband’s financial position, there may be a number of options available to him in terms of making the payment to the wife. If the husband fails to pay the wife the lump sum in the time frame specified, it may be necessary to sell Property A. In my view, that is a matter considered as part of any enforcement application.
162However, in light of the husband’s conduct since separation drawing down on facilities secured against Property A and the time in which I propose the husband make payment to the wife, subject to hearing from the parties, I consider it appropriate to restrain the husband from drawing down or further encumbering Property A without the wife’s prior written consent or an order of the Court.
163Having regard to the above and in the context of the marriage, I am satisfied the orders I propose to make reflecting this outcome, are just and equitable.

Orders

164Subject to hearing from the parties as to the form of the orders only, I propose to pronounce orders as follows:
By Consent
1.The Applicant’s right, title and interest (if any) in all property in possession of the Respondent, forthwith vest in the Respondent, including but not limited to:
(a)The Respondent’s motor vehicles;
(b)The furniture, chattels, jewellery and personal property in the Respondent’s possession (unless otherwise agreed between the parties);

2.The Respondent’s right, title and interest (if any) in all property in possession of the Applicant, forthwith vest in the Applicant, including but not limited to:
(a)The Applicant’s bank accounts;
(b)The Applicant’s superannuation entitlements;
(c)The Applicant’s motor vehicles;
(d)The furniture, chattels, jewellery and personal property in the Applicant’s possession (unless otherwise agreed between the parties);
(e)Any monies held in accounts with any banks or financial institutions in the Applicant’s name, or in which the Applicant has an interest.

Implementation
3.The parties do all acts and things and give all consents and execute all documents and writing necessary to give effect to the Orders made herein.
4.The parties do all things reasonably requested of them by the other party to give effect to these orders in a tax effective manner.
5.Unless otherwise specified in the final Orders:
(a)Each party shall be solely liable and will indemnify and keep each other indemnified in relation to any and all liabilities presently in the name of each of them respectively;
(b)Each party shall be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders; and
(c)Each party shall be solely liable for and indemnify the other party against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

6.The parties have liberty to apply in relation to the implementation of these Orders.

AND OTHERWISE
7.All previous orders be discharged.
8.Within two calendar months, the Respondent pay or cause to be paid to the Applicant $684,313. (Lump Sum).
9.Upon compliance with Order 8, the Applicant’s right title and interest in and to [Property A] vest in the Respondent.
10.Pending payment of the Lump Sum, the Respondent be restrained by an injunction and an injunction is hereby granted restraining him or his agents from drawing down, encumbering or otherwise dealing with [Property A], , without the prior written consent of the Applicant with such consent not to be unreasonably withheld or an order of the Court.
11.Upon the vesting of each of the Respondent’s interest in and to the [Company X] Investments, known as the [Company X] Trust and the [Company X] Project , after the payment of the costs of vesting including any brokerage, commission and tax, the net proceeds of sale be divided as to 55.5% to the Respondent and 44.5% to the Applicant.
12.Pending the vesting of the Respondent’s interests in the [Company X] Investments pursuant to the preceding orders:
(a)The Respondent be restrained by an injunction and an injunction is hereby granted restraining him from dealing with the [Company X] Investments or authorising any third person to do so on his behalf, without the prior written consent of the Applicant, with such consent not to be unreasonably withheld.
(b)The Respondent do all acts and things necessary to keep the Applicant informed and advised in relation to the [Company X] Investments including but not limited to providing copies of periodic statements upon receipt, providing advice as to when each investment will mature and any other information and documentation which may be reasonably requested from time to time by the Applicant or her advisors.

13.The Applicant’s right, title and interest (if any) in all property in possession of the Respondent, forthwith vest in the Respondent, including but not limited to:
(a)The Respondent’s bank accounts;
(b)The Respondent’s superannuation entitlements;
(c)The furniture, chattels, jewellery and personal property in the Respondent’s possession (unless otherwise agreed between the parties); and
(d)Any monies held in accounts with any banks or financial institutions in the Respondent’s name, or in which the Applicant has an interest.

14.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
15.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties
16.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 14 and 15 above do not apply.
17.The Application and Response be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
9 MARCH 2020