FAMILY LAW – PROPERTY SETTLEMENT –– Alteration of property interests under Family Law Act 1975 (Cth) – Short relationship – Long and complex history of litigation between the parties regarding parenting issues – Where parties' child lived with wife after separation – Where, following two trials, child now lives with husband and has no contact with wife – Where wife ordered to pay total costs of $300,000 in relation to parenting proceedings – Where substantial costs order paid by wife from sale of real property owned at commencement of cohabitation – Where wife found to be a vexatious litigant in relation to parenting proceedings – Where wife has exhausted all avenues of appeal from parenting orders, the very substantial costs order and the order declaring her a vexatious litigant – Where husband involved in substantial farming enterprise with his parents – Where both parties failed to provide full and frank disclosure – Consideration of parties' contributions prior to and after separation – Treatment of very substantial costs order which has already been paid by wife – Consideration of s 75(2) factors – Where husband's financial position far superior to wife's financial position – Where wife has limited earning capacity – Where husband has sole responsibility for care of child – Where wife does not spend time with child – Where parenting arrangements most unlikely to change in the foreseeable future – Where husband most unlikely to receive realistic child support payments from wife in the foreseeable future

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Ms P Giles

Solicitors:

Applicant: Self Represented Litigant
Respondent: Biddulph & Turley

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

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
B & B [2006] FamCA 883
Babett & Falconer (2015) FLC 98-067
Bevan & Bevan [2013] FamCAFC 116
Biltoft & Biltoft (1995) 19 Fam LR 82
Bonacci & Bonacci [2012] FamCAFC 15
Bremner & Bremner (1995) FLC 92-560
C & C [1998] FamCA 143
Chang v Su [2002] FamCA 156; (2002) FLC 93-117
Chapman & Chapman [2014] FamCAFC 91
Clauson & Clauson (1995) FLC 92-596
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
Gollings & Scott (2007) FLC 93-319
Harrington & Harrington and Ors (2007) FLC 93-317
Hayton & Bendle (2010) 43 Fam LR 602
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In the Marriage of Prince; General Credits Australia Ltd (Intervener); A-G for the State of Queensland (Intervening); A-G for the Commonwealth of Australia (Intervening) (1984) 9 Fam LR 481
K & K [2002] FamCA 1150
Kouper & Kouper (No 3) [2009] FamCA 1080
Kowaliw & Kowaliw (1981) FLC 91-092
M & M [1998] FamCA 42
Mayne & Mayne (2011) FLC 93-479
McMahon & McMahon (1995) FLC 92-606
Money & Money (1994) FLC 92-485
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
Omacini & Omacini (2005) FLC 93-218
Pierce v Pierce (1999) FLC 92-844
R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Reynolds & Reynolds (1985) FLC 91-632
Russell v Russell (1999) FLC 92-877
Saxena & Saxena (2006) FLC 93-268
Scott & Danton [2014] FamCAFC 203
Shimizu & Tanner [2011] FamCA 271
Spencer & Spencer (No2) [2014] FCWA 71
Spencer & Spencer [2013] FCWA 86
Spencer & Spencer [2014] FCWA 2
Spencer & Spencer [2016] FamCAFC 212
Spencer v Spencer [2014] HCASL 214
Spencer v Spencer [2017] HCASL 39
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Townsend & Townsend (1995) FLC 92-569
Waters & Jurek (1995) FLC 92-635
Way & Way (1996) FLC 92-702
Williams & Williams [2007] FamCA 313

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

Introduction

1Before the Court are the parties' competing applications for alteration of property interests.
2The broader proceedings between the parties have a long, tortuous and joyless history. I have no doubt that the ongoing dispute – which has focused primarily on parenting issues – is one of the most disheartening cases this Court has ever had to deal with. It is a case with no "winners", which has produced little but rancour and resentment. The only small consolation for this judicial officer lies in the fact that the issues for determination in these Reasons relate to the parties' property interests and not to parenting matters.
3The property trial commenced in June 2015. It occupied five sitting days. On the final day, the trial was adjourned on a part-heard basis. It resumed in January 2016, occupying a further five sitting days. I reserved my decision on 20 January 2016. On 13 June 2016, however, the proceedings were reopened for the purpose of adducing further evidence in relation to the husband's income for the 2015 and 2016 financial years. The reopened trial commenced on 9 May 2017. It occupied a further three sitting days. The trial was again reopened in October 2017, to accept further material into evidence.
4Throughout the financial proceedings before me, Ms Giles of counsel appeared for the husband. The wife was unrepresented.

Documents relied upon, and the Court's approach to the large volume of material

5The wife listed a great many documents in her original and updated papers for the judge filed 29 May 2015 and 1 May 2017 respectively, but the vast majority were never referred to during the extended trial. In the wife's trial affidavit at [353], she indicated that she wished to rely on "the entire court record to support the financial part of this case", and that it was essential for her to do so "as the financial facts overlap with the children's issues" and there is also "an overlap of abuse and the financial abuse which didn't take place in a vacuum".
6The law does not permit the wife to adopt the type of "scattergun" approach she has described and sought to pursue. Throughout the trial, I sought to redirect her attention to matters that might be deemed relevant to the issues associated with the property aspect of the case (which I shall call "the property case"). I gave her as much leeway as I considered appropriate in the circumstances – but the wife's passion for justice, and her many grievances, cannot, by themselves, transform irrelevant or inadmissible evidence into relevant, admissible evidence. At its heart, this is a comparatively simple case – albeit an extraordinarily emotionally-charged one. The evidentiary sows' ears (and there were many of them) never turned into silk purses.
7The husband relied initially on the documents listed in his papers for the judge filed 2 June 2015. Those documents were his:
a) amended Form 1A response filed 6 December 2011;
b) trial affidavit sworn 2 March 2015 ("HTA"); and
c) financial statement sworn 19 February 2015.
8The husband later relied upon additional affidavits filed pursuant to the leave to reopen granted on 13 June 2016 and 23 October 2017.
9Given the enormous quantity of material presented to the Court by the wife (which material occupied some 14 lever-arch files), it is impossible to deal with every argument or difference of opinion raised or expressed by the parties. More importantly, though, it is not necessary to do so. If I do not make mention of a specific document, or refer to some other form of evidence, it is because I have formed the view that it is unnecessary to make reference to the document or the evidence. I have done my best to deal with the evidence I consider to be relevant to the property case in the broadest sense.
10It is not my role to restate all the evidence before the Court. Still less is it my role to "chase every rabbit down its burrow". I accept, however, that it is my role to resolve the parties' property dispute within the parameters of their respective cases and in accordance with the Court's jurisdiction and powers. I accept, as well, that I am obliged to provide reasons for the decision I have reached and that those reasons should reveal why I have decided the case in the way I have. The reasons should also disclose that justice has been done.
11Further to the above comments, I refer to the well-known passage from the decision of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385:
[The judge's duty to state his reasons for deciding as he/she does] does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.
However, the decision of a particular submission may be an essential part of the judge's reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so. In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.) In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.

Abbreviations and other terms used

12In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as "the wife" and "the husband" (and I mean them no disrespect by doing so) because – although they have divorced and the wife has remarried – it is less confusing than referring to them as the applicant and the respondent;
c)I have referred to the two primary judgments in the parties' parenting proceedings as "the 2013 judgment" ([Spencer] & [Spencer] [2013] FCWA 86, published 28 August 2013) and "the 2014 judgment" (Spencer & Spencer (No2) [2014] FCWA 71, published 21 November 2014);
d)I have referred to Justice Moncrieff's costs judgment (Spencer & Spencer [2014] FCWA 2, published 21 January 2014 – between the 2013 judgment and the 2014 judgment) as "the costs judgment";
e)I have referred to the costs order (of $300,000 or thereabouts) made pursuant to the costs judgment as "the dominant costs order";
f)I have referred to the Full Court's judgment in Spencer & Spencer [2016] FamCAFC 212 (delivered 3 November 2016) as "the appeal judgment" – although I am well aware that the Full Court has also delivered other judgments in these proceedings;
g)I have referred to the partnership styled [Partnership A] (comprising the husband and his parents) as "P3";
h)I have referred to the partnership styled [Partnership B] (comprising the husband's parents only) as "P2";
i)I have used the expression "the Farm" to refer (compendiously) to –
i)the "multiple lots farm" at or in the vicinity of [the Wheatbelt] area; and
ii)the entire farming enterprise conducted by P3, P2 and/or the husband and/or his parents on the properties known as [Property A], [Property B] and [Property C];

j)I have referred to the net property of the parties available for distribution between them (as set out in the property schedule included in these Reasons) as "the property pool";
k)I have referred to the wife's present husband, [Mr W], as "Mr W";
l)I have referred to the independent children's lawyer in the parties' parenting proceedings as the "ICL";
m)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides, among other things, that "to swear" includes "to affirm");
n)I have referred to the wife's trial affidavit sworn 9 February 2015 as "WTA";
o)I have referred to the husband's trial affidavit sworn 2 March 2015 as "HTA"; and
p)I have referred to the Family Law Act 1975 (Cth) as the "FLA", and the Family Law Rules 2004 (Cth) as the "FLR".

13I have referred to the change in living arrangements for the parties' child, [H] – whereby, pursuant to orders flowing from the 2013 judgment, H ceased living with the wife and commenced living with the husband – as "the custody change". I am aware, of course, that Moncrieff J made final orders for the husband to have parental responsibility for H, and for H to live with him. I have decided to refer to the obsolete term "custody", however, because it is both more convenient and less grammatically challenging to do so.

Background

14The husband was born [in] 1966, and the wife [in] 1972. It follows that they are 51 and 45 respectively. They commenced cohabitation in June 2007 and married [in] 2008. They separated on two occasions (for a total of approximately five months – although the evidence relating to the precise length of each separation was somewhat inconsistent), before finally separating in February 2010. Thus, their cohabitation lasted two years and seven or eight months – ignoring any periods of separation. They were divorced in June 2012.
15There is one child of the marriage: H, born [in] 2008. He is the only child of each of the parties. At first, he lived with the wife after separation. He now lives with the husband, and has done so since orders to that effect were made by Moncrieff J on 28 August 2013 (pursuant to the 2013 judgment). H does not spend any time with the wife, as a consequence of orders made by his Honour on 21 November 2014 (pursuant to the 2014 judgment).

About the wife

16At the commencement of the relationship, the wife was working for trusts or corporate entities controlled by her father. Relevantly, she worked for [Company A] (and, it would appear, a [business] associated with her father as well). Her role involved research [related to the work]. She says that her net annual income at that time was approximately $60,000.
17In evidence, the wife said that she was paid a total of $4460 per month from the entity or entities employing her. Expenses associated with her employment were reimbursed to her. The wife said she ceased this form of employment when H was born.
18At a later stage, the wife said that regular payments of $2460 per month deposited into her ANZ Account #575 between (at least) January 2009 (in other words, after H's birth in May 2008) and April 2011 were not "wages" – even though they were so described in the statements for the account: see exhibit H7. She said the deposits were to "help her and [H] to live because the husband was not contributing enough". She added that the monthly payments received after H's birth were, in effect, a loan from her father to support her and H's living expenses. She asserted that her father and his accountant kept paying the same monthly amount to her after she ceased her employment (upon H's birth) "because they wanted her and [H] to keep the same standard of living". Thus, the wife asserted that the character of the payments changed from wages to an amorphous form of support for her and H.
19The wife is currently unemployed, and in receipt of Centrelink benefits.
20The wife has a law degree. She also obtained a Bachelor of Arts (with Honours) in or about 1994. In addition, she has a postgraduate degree in [business] and has completed a course at [University A]. It is her case, however, that she is incapable of working, due to the suffering and hardship caused by "the miscarriage of justice" in the parenting proceedings and the abuse she and H have endured.
21In the 2013 judgment at [173], Moncrieff J described the wife as follows:
[The wife] is a highly intelligent, articulate woman. She has undergraduate qualifications in law (honours), [including two other degrees] from [University B] and a post graduate degree in [business]. She demonstrated that she has significant research skills and although for the latter part of the trial she was self-represented she conducted herself as her own counsel generally in a most impressive manner that would have done many practising lawyers proud.

22At the commencement of cohabitation, the wife owned a residential property in [a Suburb East of Perth] ("[Property D]") (with a value of something approaching $700,000). The wife suggested that Property D was subject to "a small mortgage" of something in the order of $40,000, but exhibit H3 reveals the amount outstanding in respect of the mortgage was approximately $171,000 in June 2007. As explained below, it was not until two months later that the mortgage balance was reduced to approximately $46,000. The wife also had approximately 140 livestock (which, in early documents, she estimated as being worth approximately $100,000), two vehicles, trailers, garden tools, household goods and chattels and miscellaneous other items.
23I shall say more about the livestock later in these Reasons.
24The wife had been involved in a relationship before she and the husband commenced living together. As a result of the breakdown of this relationship, and the subsequent division of property between the wife and her previous partner, the wife received $253,000 in August 2007 – just two months after she commenced cohabitation with the husband. Approximately half of these moneys were used to reduce the mortgage over Property D from approximately $171,000 to approximately $46,000: see exhibits H2 and H3.
25The wife also spoke of receiving rental income from Property D after she commenced living with the husband. It is fair to say, however, that evidence regarding her income both before and after separation was less than clear.

About the husband

26The husband describes himself as "a farmer in [the Wheatbelt]": HTA at [5]. He works on a full-time basis. The husband has been involved in a farming partnership with his parents since its establishment in 1986 (when he was 19 or 20). The partnership is styled as Partnership A. I have referred to it as "P3" throughout these Reasons.
27The husband said in evidence that P3 has been "successful from the outset" and that its "equity to debt ratio" is excellent.

Property A

28The husband's parents are the legal owners of Property A, which is unencumbered. The husband says that Property A was purchased in 1976 and became unencumbered in 1986. The husband also says that his parents run Property A "through their partnership (styled) [Partnership B]". As indicated above, I have referred to this partnership as "P2". In HTA at [62], the husband asserts that P2 "still owns farming equipment and assets" and that he has "no interest" in it, or in Property A.

29Thus, P2 predated P3. In relation to P3, the husband asserts that there is no partnership agreement, that each of the partners has a one third interest and that the profits from P3 are divided equally among the partners: see HTA at [64].

Property B

30At or around the time of the establishment of P3, it (or, more accurately, the three partners) purchased a farming property known as "[Property B]" for $200,000. The husband says his parents paid the deposit of $120,000 – $40,000 of which they paid on his behalf. He says this $40,000 is "repayable by me and still outstanding": see HTA at [65]. As discussed below, I regard this amount as a debt in name only. It is never likely to be repaid.
31P3 borrowed the remaining $80,000 (required to complete the purchase of Property B) from a commercial lender. It has since been repaid.
32The registered proprietors of Property B are the husband's parents as joint tenants "of two undivided third shares" and the husband of one undivided third share, as tenants in common.

Property C

33According to the husband in HTA:
66.My parents and my mother's sister, [Ms H], also had a farm known as "[Property C]" operating under the partnership "[H & S]". This farm was purchased in 1982 but the partnership had operated since approximately 1976.
67.These three farms (Property A, Property B and Property C) were treated as separate businesses as they were each owned by separate partnerships. It became quite complicated in terms of buying stock, feed, fertiliser and the like for all three farms.
68.In 2000, my aunt decided to sell her share in H & S to me.…

34HTA annexure G comprises an agreement between Ms H and the husband. It is dated 22 May 2000. Pursuant to the agreement, the husband purchased his aunt's one third interest in both Property C and H & S. The operative part of the agreement includes the following provisions:
a)the husband agreed to purchase his aunt's one third interest in Property C (unencumbered) for $270,000; and
b)the husband agreed to purchase his aunt's one third interest in the assets of H & S (including equipment and machinery, livestock, CBH toll debentures and toll credits, any wool tax refunds or rebates, wheat tolls, wheat pools and any wheat advances) for $30,000.

35The settlement statement attached to the agreement referred to in the previous paragraph reveals that the husband was only required to pay $200,000 (instead of $300,000) in order to complete the purchase. The remaining $100,000 was not required to be paid. It was offset against a debt owed by Ms H to the husband's parents.
36In HTA, the husband says:
69.To fund the $200,000, [P3] took out a loan of $140,000 and… cashed in a term deposit of [approximately $42,000]. I recall I put in [approximately $13,000] from my term deposit. The remaining [approximately $5500] was most likely paid by [P3] from the overdraft and my funds.
70.As a result of this transaction I owe my parents E$128,914 which covers the $100,000 credit off the purchase price and my share of the deposit and costs. This money is still outstanding.

37Once again, and as discussed below, I regard this amount as a debt in name only. It is never likely to be repaid.
38As with Property B, the registered proprietors of Property C are the husband's parents as joint tenants "of two undivided third shares" and the husband of one undivided third share, as tenants in common.

The husband is primarily responsible for running the farming enterprise

39The husband and his parents agreed to run the three farms (Property A, Property B and Property C) as one farming business. This means that the husband has a one third interest in each of –
a) P3 and its assets;
b) Property B; and
c) Property C.
40Notwithstanding the formal structure of P3 and P2, and the fact that the registered proprietors of Property A are the husband's parents, I am satisfied that the husband is primarily responsible for the day-to-day running of, and executive decisions relating to, the Farm – which I have defined above as meaning the farming enterprise in its entirety (in other words, P2, P3 and all the farming properties, including Property A). I am also satisfied that this has been the case since, at least, the time that he and the wife commenced cohabitation.
41In his affidavit sworn 17 October 2017, the husband said his parents are no longer living on the Farm, and that they have relocated to Perth (although they visit the Farm regularly).

Assertion that the husband has an equitable interest in Property A

42In HTA at [72], the husband says:
[Property A] is my parents' property. It is not held on trust for me… and I do not have an equitable interest in it. However, my parents do not charge [P3 for the use of Property A] so I benefit indirectly that way. [P3] has also had the use of equipment belonging to [P2].

43It is certainly arguable that the husband does indeed have an equitable interest in Property A but, as appears below, there is no need for the Court to make any specific findings in relation to this issue. That is because I am more than satisfied that the arrangement the husband had (and still has) with his parents is similar to that described by the Full Court in Reynolds & Reynolds (1985) FLC 91-632 ("Reynolds"). There, the Full Court made reference (at p 80,108) to the evidence at trial of an accountant who spoke – when referring to the relevant family's financial affairs – of there being a single "bickie barrel''. Their Honours in Reynolds said that this was –
… an accurate, if colloquial, assessment in non-accounting terms, of exactly how the family saw the financial situation.… The factual situation was that there was one "bickie barrel'' only, namely the coffers of the husband's family...

44I do not suggest that the current situation is identical to that described in Reynolds, and I certainly do not want to take the analogy too far, but it is a reasonable approximation of the type of arrangement that the husband had (and still has) with his parents.
45By analogy with Reynolds, the potential future value to the husband of his interest as a partner in P3 and his position as the practical (indeed, in my view, the almost inevitable) successor to the Farm (including Property A itself) is both significant and relevant. Bearing in mind that the Full Court in Reynolds had discomfort with the categorisation of the generosity of the family of the husband in that case as a financial resource pursuant to s 75(2)(b), I am satisfied that it should be taken into account under s 75(2)(o) as a fact or circumstance which the justice of the case requires to be taken into account.
46As the Full Court said in Reynolds at p 80,113:
The true situation was obscured by the legalistic framework set up by the husband's parents to save estate duties and income tax. The use of sec. 75(2)(o) enables the Court to go to the heart of the matter in this case. His Honour assessed the reality of the situation – that is the existence of the "bickie barrel'', as the accountant called it, the considerable moneys under the broad control of the family, but in particular under the control of the husband's parents and to a reasonable portion of which the husband has expectations on his parents' death, as well as the attitudes of the members of his family towards him, the husband. His Honour was entitled to infer from the evidence of the family's past generosity that it would continue in the future… There is no formula for quantifying future generosity on the part of a group of people whether bound by ties of blood or not. One can only look at the past history and weigh the probabilities.…

Property E

47Shortly after the parties met, the wife relocated from Property D to a rental property at [Property E]. Thereafter, the parties commenced living together at Property E, which is "next door" to the Farm: see HTA at [13]. It is not in dispute that Property E was furnished predominantly with items the wife brought into the relationship.
48H was born while the parties were living at Property E.

Property F

49The parties first separated at the end of December 2008 (when H was approximately seven months old). Shortly afterwards, the wife moved, with H, from Property E to [Property F] – some 40 km from the Farm. When the parties reconciled in March 2009, the husband commenced living at Property F.
50Like Property E, Property F was a rented property.
51The second separation commenced shortly afterwards. The parties were apart from approximately mid-April 2009 to approximately mid-June 2009. After the reconciliation, the husband returned to Property F.

Joint account

52During the relationship, the parties did not acquire any significant property in their joint names. In September 2007, however, they opened a joint bank account for the purpose of meeting household expenses ("joint account"). Until September 2010, the husband deposited between $300 and $500 per week into the joint account. The wife did not regularly contribute funds to the joint account, but she managed the joint account and used it to meet household expenses. She also contributed to household and associated expenses in other ways.
53At HTA [107], the husband says that, during both separations (or, effectively, during the first half of calendar 2009), he continued to pay $1000 per fortnight into the joint account. He also says that he did not access the joint account.

Nissan Pathfinder

54On 2 April 2008, a [Nissan Pathfinder] ("[the Pathfinder]") was purchased for $49,388. The husband contributed $12,388 to the purchase price. The wife contributed $7000 or $7500. The remaining $30,000 was borrowed from a commercial lender. The borrower was P3.
55The Pathfinder was registered in the husband's sole name, but it appeared in P3's financial statements as an asset of the partnership. It would appear that this arrangement was made "for tax purposes".
56The husband retained the Pathfinder after separation. It was later used as a trade-in when the husband or P3 or its partners purchased a new [Nissan X-Trail] motor vehicle. The trade-in allowance was $4000.
57During the proceedings, much time was devoted to issues relating to the use and disposal of the Pathfinder. This was particularly the case during the May 2017 reopening.
58According to the husband, approximately $18,000 remained owing in respect of the Pathfinder at the date of separation. The total amount borrowed had been repaid prior to the disposal of the Pathfinder.
59Apart from the joint account and the Pathfinder, there was very little overlap of the parties' finances.

Farm management and Farm Management Deposits

60In 2009, P3 purchased farming equipment and machinery for $593,600. As part of the purchase, P3 traded in some items for a total of $180,000. The remainder of the purchase price (being $413,600) was funded by P3 paying a deposit of $10,000, borrowing $252,545 over five years and committing funds from the sale of two wool clips.
61HTA annexure I comprises documents relating to the transaction described in the previous paragraph. The CNH Capital Australia Pty Ltd Loan and Mortgage Schedule reveals that a final balloon payment of $130,000 was due 53 months after the commencement date of the agreement (being 31 August 2009). According to the husband, the P3 partners knew at the time they entered into the financing arrangement that they could not afford the final balloon payment, and that they would have to refinance. He says they refinanced $90,000 of the relevant amount in January 2014.
62The husband says, and I accept, that this and a number of other transactions questioned by the wife were entered into or carried out in the normal course of the farming business. There can be no doubt that the Farm had to be managed effectively and efficiently, and appropriate planning had to be done, if it was to be successful. This necessarily involves budgeting appropriately for bad years (such as when there is drought, or if a crop fails).
63I accept, as well, that Farm Management Deposits ("FMDs") are "part of the daily running of a large farm" and that they comprise "a very useful and important part of farm management": see HTA at [80].
64Dealing with FMDs, the husband said in HTA:
81.FMDs have to be in a personal name, rather than in the farm name. They are lodged as FMDs and they come off your taxable income. So, for example, on the last working day of June 2009 we took $150,000 for FMDs. Each partner took $50,000. The money is taken out of the business and put into a [FMD] in the personal name of each partner… On lodgement, this money is treated as a tax-deductible expense.
82.The deposit has to be held for one financial year (i.e. from 30 June one year to 30 June the next). You cannot cash it in until 1 July (i.e. after 12 months) to receive the benefits. Once the deposits are cashed in they are then taxable in the year they are cashed. So in July 2010, because of the financial situation [P3] was facing because of the drought, [P3] redeemed all three [FMDs] and the funds and interest earned were returned to the farm working account. If we hadn't have done this, the farm working account would have been significantly in overdraft.
83.This past financial year (2014) [P3] took FMDs of $80,000 each.
84.[P3] uses FMDs as they are tax effective and assist with the long-term management of the farm. They are not funds that are personally available to any of the partners.

65I accept the husband's description set out above. Indeed, I am satisfied that P3's decisions to deposit significant funds in various FMDs after the date of separation were made for taxation and long-term farm management purposes, and without sparing a thought for the husband's financial obligations to the wife and H. I find that if the husband and the other P3 partners gave any thought to his obligations in this regard, then they elected to give far greater priority to tax minimisation and farm management considerations than to the need for the husband to properly and adequately support his small family. In other words, if the husband and his parents had been less focused on securing the financial well-being of the Farm (and hence their own financial well-being) in the short, medium and long term, and obtaining financial advantage through the taxation system, they could have relieved some of the real or perceived financial pressure felt by the wife during the relationship and after separation. The wife was not far wide of the mark when she categorised the actions of the husband and his parents in this regard as selfish, mean-spirited and anything but child-focused.

The wife's concerns

66The husband says at HTA [55], and I accept, that most of the problems in the relationship centred around two issues, being –
a)the wife's perception that the husband "wasn't properly looking after" her and H financially; and
b)the wife's perception that the husband was "spending too much time working and not enough time with her".

67In my opinion, the wife's perceptions were not without foundation, but her personality is such that she has tended to fret excessively over them. Over time, her concerns have been magnified out of all proportion.
68I reject the husband's suggestion that the wife's complaints about his financial contributions to their small family were without merit. As I have said elsewhere in these Reasons, the husband was frugal to the point of parsimony. HTA at [58] provides a good example of the difficulties the wife would have faced in dealing with the husband's attitude to money:
Since [the wife] went on about the money issue so often, I had kept a record of what I had paid. I printed it out for her. I said to her "Show me where we need more money. If you need it, I'll pay it", but [the wife] wouldn't. [The wife] would keep saying "You're not looking after your wife and child".

69It is clear from the above passage that the husband's predominant criterion – where potential expenditure was concerned – was "need". As the husband said at HTA [54], he is frugal with money, he leads "a fairly simple lifestyle" and the lifestyle that the wife led was "always at odds" with his.
70Having seen and heard the husband in the witness box, and having regard to the evidence before the Court in the broadest sense, I have no doubt that it would have been extremely difficult for the wife to ever persuade the husband that she "needed" something. His needs were very different from hers, and his notion of what a couple with a young child might reasonably "need" in a financial sense was also very different from hers. The parties' disagreement regarding the purchase of a new washing machine is a good example of the husband's attitude: see HTA at [94]. I note that the husband says that the old washing machine (which the wife's father had purchased for the couple) was "in good working order", and that there was therefore no "necessity" to purchase a new one. The husband could have said that the old washing machine was suitable for the needs of a family with a newborn or young child, but he did not do so. Almost certainly, the washing machine was not (or, at least, the wife thought it was not) suitable for such a purpose. I have no doubt, however, that the husband's reluctance to purchase a new washing machine had nothing to do with the suitability of the old washing machine and everything to do with his entrenched frugality.

Family Court proceedings

71The wife commenced property proceedings in this Court on 22 December 2010. She also sought orders for spousal maintenance and child support, and a passport for H. The husband filed a response on 14 January 2011. Shortly afterwards, he sought parenting orders.
72In May 2011, the wife filed an application for interim partial property settlement, seeking $45,000 from funds held by the husband in a term deposit. This application was dismissed on 4 July 2011. In her Reasons delivered on that day, Sutherland M summarised the parties' cases and commented on the evidence then before the Court. Among other things, her Honour said:
12.Since separation the wife has continued to maintain her hobby of keeping and showing [livestock]. In the wife's financial statement filed 22 December 2010 she does not declare any income earned from her [livestock] herd, but does declare significant expenses, which presumably include maintenance of the [livestock] herd.…
…
14.The wife maintains that…
a)her current assets and superannuation entitlements comprise [Property D] valued at $700,000, the [livestock] herd valued at $100,000, motor vehicles, savings, furniture and other chattels of nominal value and superannuation entitlements of $25,000….

73In dismissing the wife's application for interim partial property settlement, Sutherland M said:
20.The wife argued that as her only income derives from the rent she receives for [Property D] and child support, she has insufficient income with which to meet her ongoing litigation costs. Given the disputed evidence of the parties in relation to the wife's income, I am unable to make any findings in this regard. However, leaving aside the issue of her income, the wife did not address whether she is able to draw on her own assets in order to meet her litigation costs. The husband argued that this is not a case where one party had control of the majority of the parties' assets or that the husband was in a position of relative strength to the wife. Rather he maintained that the wife has significant assets and resources under her control which she can use to meet her litigation costs, including a redraw facility on her home loan in excess of $200,000 available to her. In addition, the wife's [livestock] herd is an expensive hobby, rather than an income producing investment. In response the wife maintained that if she used the redraw facility or sold the [livestock] it would simply increase her liabilities and she did not have the means to pay the increased mortgage payments. Whilst I acknowledge the wife's argument that utilising the redraw facility will increase the wife's indebtedness, I do not accept that selling part or all of the [livestock] herd will increase her liabilities and [find] that this is an option available to her.

21.In conclusion, I am satisfied that the wife has significant assets under her sole control, including a significant non income producing investment in the form of her [livestock] herd. I am not satisfied that the wife could not meet her own litigation costs by, for example, selling her non income producing assets and utilising the sale proceeds…

74At that time, the wife had primary care of H. He had lived with her since the parties separated. The husband began paying the wife child support and additional funds into the joint account in October 2010. This ceased when the wife closed the joint account in June 2011. Thereafter, the husband continued to pay child support as assessed by the Child Support Agency. In July 2012, the husband paid additional child support and a further amount of $2,673 to the wife. The wife then began closing any account into which the husband transferred funds.
75The wife amended her initiating application in June and November 2011. In the latter amendment, she sought a child support departure order and other financial orders.

Property G

76In June 2012, the wife signed an Offer and Acceptance relating to the purchase of a property known as "[Property G]": see exhibit H8. The purchase price was $700,000. The proposed settlement date was 1 July 2013 (or earlier if by mutual consent). The purchase was not subject to finance.
77The proposed purchase of Property G was eventually cancelled. During cross-examination, however, the wife said she had proposed to meet the purchase price by selling Property D (which, she said, was "a saleable property"). She added that she did not list Property D for sale until "after [H] was taken", and that it was sold "to raise funds for the appeal".

H commences living with the husband

78As indicated above, H has lived with the husband since August 2013. How the custody change came about, and the consequences of the custody change, comprise a story of epic proportions – although it is not a story I am obliged to retell in these Reasons. It can be found readily enough elsewhere. Relevantly, it is recounted by Justice Moncrieff in the 2013 judgment and the 2014 judgment, and by the Full Court in the appeal judgment.

The wife remarries

79The wife and Mr W married in early 2014.

The dominant costs order and Property D sale proceeds

80On 21 January 2014 (in other words, after the 2013 judgment but before the 2014 judgment), the wife was ordered to pay costs totalling $300,000 to the husband and the ICL. According to Ms Giles, because these moneys had been held in trust for a period of time (and interest had accrued), the precise figures paid were $56,086 in respect of the ICL's costs and $245,605 in respect of the husband's costs: see Spencer & Spencer [2014] FCWA 2, which I have described as "the costs judgment".
81I have referred to this costs order as "the dominant costs order".
82The wife's appeal against the dominant costs order was dismissed: see the appeal judgment at [102] to [128].
83The amount of slightly in excess of $300,000 used to meet the dominant costs order was derived from the sale proceeds of Property D. Justice Moncrieff had ordered that $300,000 of those proceeds should be held in trust pending determination of the costs issues.
84According to the wife, the "total of funds transferred" to her after the sale of Property D and the subsequent payment of the dominant costs order (and the payment of other debts) was just over $99,300. These funds were "spent in repaying the credit card debt and other bills": see WTA at [57] and [61].
85In the costs judgment, Moncrieff J made a number of findings or observations, none of which were disputed by the Full Court in the appeal judgment. For example, his Honour said:
48.Notwithstanding my order of 17 September 2013 requiring [the wife] to file an updated statement of financial circumstances she has not done so.
49.I accept that [the husband's] financial circumstances are more complex and whilst can make no definitive finding I would observe that it is more likely that he has a greater depth of resources than [the wife].
…
55.What is significant about the annexed financial statements [of the trust controlled by the wife's father] is that as at 1 July 2011 [the wife] was indebted to the trust by way of overdrawn beneficiary loan account in the sum of $110,735.90. In the financial year ending 30 June 2012, she drew $500 on the trust. In the following financial year, namely that ending on 30 June 2013, she drew a further $7,500 from the trust.
56.Although the financial statements for prior years are not annexed to the submissions, correspondence from the family accountant would suggest that [the wife] has been in receipt of payments from her father of $5,000 per month. This was not reflected in her loan account however between July 2010 and April 2011 she received payments of $4,460 each month "to assist with your living expenses" which had the effect of increasing her debit balance from the sum of $65,736 as at 30 June 2010.
…
58.There is no suggestion that [the wife's] debit beneficiary loan account is presently being called in.
59.Her settlement statement of the sale of [Property D] shows a selling price of $820,000 less agent's fees and costs of $23,910 and a discharge of mortgage in the sum of $285,719.26.
60.Thereafter the following disbursements have been made:
•$81,460.52 to her former solicitors for solicitors' costs and a further $28,483.60 for counsel fees;
•$300,000 has been retained pursuant to my order and after adjustments of rates and taxes a sum of $99,317.41 was paid to [the wife]; and
•This balance has been paid to discharge some credit card debt it would seem of approximately $50,000, although the credit card statements annexed are not particularly helpful in determining exactly what amount has been paid as the statements predate the settlement on the sale of the property.

86In relation to the dominant costs order itself, his Honour said in the costs judgment:
97.Overall I am satisfied that the conduct of [the wife] in these proceedings warrants an order for indemnity costs. It is difficult to conceive of a more extraordinary set of circumstances in a parenting case that would warrant such an order underscored by the abuse of [the wife] of the process of litigation to further her utterly unfounded allegations as I have observed earlier in these reasons and in [the 2013 judgment].
98.[The wife] was willing to abuse the process of the court in her relentless pursuit of her desire to limit his involvement, if not entirely exclude, [H] in and from [the husband's] life and the court and its processes became her tool to achieve that end. Further, in the utilisation of that tool [the wife] abused the processes of the court in the failure of her obligations as a litigant and in her attempts to manipulate evidence and witnesses, to lie, actively mislead the court and challenge its authority and the proper use of its processes.
99.I am satisfied that I should make orders effectively on an indemnity basis, however I propose to limit the extent of the orders to the sum secured, namely $300,000 which I propose to apportion as between the independent children's lawyer to the extent claimed by them, namely $56,082 and the balance be payable to [the husband].

87Again, none of these findings have been disturbed on appeal.

Wife declared a vexatious litigant

88On 28 October 2014, the wife was declared a vexatious litigant in relation to the parenting proceedings: see the 2014 judgment at [572] to [606]. Her appeal against this declaration was also dismissed: see the appeal judgment at [88] to [101].

Failure of High Court applications for special leave

89The wife's attempts to appeal to the High Court against various orders have also been rebuffed: see Spencer v Spencer [2014] HCASL 214 and Spencer v Spencer [2017] HCASL 39.

Valuations obtained

90In November 2014, [Company W] were appointed as the single expert witness ("SEW") to value the husband's interest in P3 and various assets of the wife. On 20 February 2015, the parties were notified that SEW would not value the wife's assets, including her livestock – because SEW did not have the expertise. SEW filed its valuation report in March 2015. I have referred to the valuation report elsewhere in these Reasons.

Overview

91By the time the property proceedings commenced on 15 June 2015, the salient facts were as follows:
a)The parties had been involved in a very short relationship (followed by years of litigation). The history of the litigation is apparent from the 2013 judgment, the costs judgment, the 2014 judgment and the appeal judgment (which post-dated the commencement of the trial before me in relation to the property case).
b)There was (and obviously still is) one child of the marriage: H.
c)The wife had been H's primary carer for the first five years of his life. Since then, the husband has been his primary carer and the wife has had no, or virtually no, contact with him.
d)Realistically, and in spite of the wife's hopes and desires, the chances of the wife regaining the care of H in the foreseeable future were remote. They are now even more remote.
e)The wife had paid just over $300,000 in respect of the dominant costs order.
f)The husband was and had at all relevant times been involved in a significant farming enterprise with his parents. Regrettably, and as I shall expand upon later in these Reasons, the husband failed to make full and frank disclosure of his true financial position.
g)Both parties had significant assets at the commencement of their relationship, and there was very little intermingling of their assets during the period of cohabitation.
h)Largely (but not entirely) as a result of the ongoing proceedings between them, the husband's financial position was then (in 2015), and still is, far superior to the wife's financial position.
i)The wife had remarried in early 2014.
j)The wife was (and still is) of modest means.
k)The wife was paying no or almost no child support for H. She continues to pay minimal child support. It is unlikely that she will pay anything more than extremely modest child support for H at any time in the foreseeable future.
l)A very great deal of money had been spent by the parties, particularly the husband, in relation to the child-related proceedings and the property case. Even more money has now been spent.

The trial has been reopened

92As indicated above, and pursuant to orders made on 13 June 2016, the proceedings were reopened for the purpose of adducing further evidence in relation to the husband's income for the 2015 and 2016 financial years. I need not reproduce the relevant paragraphs of the June 2016 order in these Reasons. The order speaks for itself.
93On 10 October 2016, orders were made pursuant to which the wife was given leave to rely on some additional documents. She was also given leave to update the Court in relation to certain defined matters. Again, I need not reproduce the relevant paragraphs of the order of October 2016 in these Reasons. The order speaks for itself.
94The reopened trial commenced on 9 May 2017, and occupied a further three sitting days.
95On 23 October 2017, the following orders were made:
1.The property proceedings be reopened for the sole purpose of accepting into evidence the affidavit of the husband affirmed 17 October 2017.
2.The Court give the matters deposed to in the said affidavit such weight as it considers appropriate.
3.…
4.Both parties' costs of and incidental to [the wife's application in a case filed 19 September 2017] be reserved for determination after the delivery of judgment in the substantive property proceedings.

96The reopenings are discussed below.

The wife was unrepresented

97Given that the wife was unrepresented, I was very conscious of the Court's obligation to provide a fair trial – for both parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings and am more than satisfied that the trial was fair. In summary:
a)procedural fairness was afforded to both parties;
b)the "mechanics" of the trial, and the right of the wife to cross-examine witnesses, were explained to her;
c)other relevant procedures were explained to the wife as they arose;
d)I explained to the wife that she had the right to object to inadmissible evidence, and explained to her – in very broad terms – the types of evidence that might be considered inadmissible;
e)where appropriate, I attempted to clarify the substance of the wife’s submissions; and
f)where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines (supra) at [253]: see Guideline #9 in that paragraph.

98In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph are "no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on". His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".
99In the present case, the wife – who has a law degree and has had considerable experience at representing herself in proceedings in this Court (and other courts) – participated in the process fully, eagerly and tirelessly. I have no doubt that she well understood "what was going on" at all times. Indeed, so intent was the wife upon marching to her own drum (as it were) that, at times, she appeared to be the only one in the courtroom who understood the direction she wished her case to take, and the purported relevance of some of the evidence she sought to adduce. Her knowledge of her own case was encyclopaedic.
100As I have recorded above, Moncrieff J was complimentary of the wife in the 2013 judgment in relation to her conduct of the proceedings then before him (although he was highly critical of her in relation to other matters). His Honour said at [173] that the wife "conducted herself as her own counsel generally in a most impressive manner that would have done many practising lawyers proud". I agree with his Honour's assessment in that regard and would add that she was infallibly courteous when dealing with the Court during the trial before me. She was less courteous and restrained, however, when dealing with Ms Giles, and in her comments regarding the husband and his case.

Wife's case, and relevant observations

101Although the wife provided papers for the judge on 29 May 2015 and (updated) papers in May 2017 (together with letters and other, less formal, papers from time to time – none of which the Court has taken into account), it was not easy to identify the wife's proposals or understand her case. For example, she originally submitted that, "given the unconscionable manner in which (the husband) has acted and the magnitude of his wealth", the Court should order him "to repurchase ([Property D]) and be responsible for negotiating the same" – if necessary – "before and/or on (the) departure" of the new owners of the property: see WTA at [903] and [904]. She also submitted that she should be provided with sufficient moneys to be put in the same financial position she was in prior to the relationship, with the same standard of living, together with spousal maintenance (to assist her "to attempt to regain her capacity to work") and some form of compensation for "the loss of assets (she) suffered and the fact that (the husband) deliberately and wilfully didn't meet his financial obligations for support and maintenance at an appropriate level": see WTA at [1008].
102The wife also suggested a panoply of other, cumulative orders at WTA [1017]. It was (and remains) important to her that the husband "be brought to account for his behaviour": see WTA at [1020].
103As will become apparent, however, the wife did not persevere with the vast majority of her claims (including her claim for spousal maintenance).
104WTA was sworn on 9 February 2015. It contains 1162 paragraphs, and an additional 174 paragraphs described as a "Summary". It runs to approximately 140 pages of depressingly repetitious and almost impenetrable prose, and refers to an enormous number of annexures. WTA comprises a litany of criticisms of the husband, his family, judicial officers who have dealt with previous disputes between the parties, the ICL, witnesses who gave evidence at or whose reports were relied upon during the parenting proceedings, some of the wife's own legal advisers, and the "legal process" itself. It contains material that is flagrantly inadmissible, unnecessary, irrelevant, unreasonably long, scandalous and argumentative, as well as inappropriate opinion evidence: see, for example, FLR Rule 15.13. There is no point in reproducing such material, or giving examples, because it does nothing to assist the resolution of the parties' dispute; nor does it assist the Court to make orders for alteration of property interests which are just and equitable.
105As is so often the case with material of this nature, it tends to say far more about the wife than it says about the husband or the matters that are genuinely in issue in the property case. Still, it radiates the wife's deep sense of being the victim of a monstrous injustice, and embodies her passionate cries for the return of H to her care and the punishment of those she identifies as being responsible for his placement in a position of extreme risk (as she perceives it). WTA is incandescent with the pain and frustration the wife so obviously feels. From her point of view, the Court mishandled the parenting case, made inaccurate and offensive findings and granted orders that were wholly unjustifiable. She is outraged by the result of the parenting proceedings. She regards the outcome of those proceedings as (among other things) an indignity, and an unwarranted slight on her credibility and capacity and efforts as a wife and mother. She seems to firmly believe that H's welfare has been sacrificed on the altar of professional arrogance, ineptitude and nepotism – and that she has been punished grievously for "speaking truth to power".
106It is not my role to review any aspect of the parenting proceedings. Nor should I, or can I, provide the wife solace in any relevant sense. Moncrieff J's parenting (and other) orders have been appealed unsuccessfully. It follows that the wife's cards have been dealt, and she has no alternative but to play those cards in the property case. She cannot throw them back in disgust and demand to be dealt a new hand.
107As will become apparent in these Reasons, however, I regard many of the wife's assertions and arguments as more misguided than malicious. Unfortunately, she lost any sense of perspective long ago. Nothing I say is likely to assist her to regain that perspective or to assuage her primal mistrust of and anger towards the system of which I, as a judge of this Court, am necessarily a part.

108Ms Giles submitted that the wife was less than truthful at times, argumentative, and unprepared to give the husband credit about any matter (including his sole care of H since August 2013). I agree, but the fact that the wife had many shortcomings as a witness and a litigant does not excuse – or adequately explain – the husband's shortcomings in that regard.
109In endeavouring to summarise the wife's case, I propose to list a selection of the assertions she has made (which assertions appear in italics at the commencement of each sub-paragraph). It is both unnecessary and unhelpful to list more than a selection.
a)The husband "has pursued (H) at all costs in an attempt to prevent the Court ordering him to pay maintenance and support for either (the wife or H)": see WTA at [13] and [90]. I reject the wife's assertion in this regard. There is simply no persuasive evidence to support it. The custody change occurred in the circumstances described in the 2013 judgment and the 2014 judgment.
b)The husband failed to make full and frank disclosure of, or has attempted to distort, his true financial position. This assertion was made, in a variety of forms, on a great many occasions in the wife's documents and during the trial. There is some truth in it, but I am more than satisfied that the Court has sufficient information regarding both parties' financial circumstances to make just and equitable property orders. Although of great importance to her, a large number of the wife's complaints regarding illogicality associated with or inconsistencies in the husband's disclosed financial position were trivial: they did nothing to assist the Court to make just and equitable orders. Put simply, they generated heat, but shed no light on the real issues. It would be unduly time-consuming to refer to (let alone summarise) each of the wife's assertions or arguments under this broad heading. If I have not mentioned an assertion or argument, it is because I do not regard it as relevant or have categorised it as de minimis. I should add that – as discussed below – the wife's disclosure was itself less than comprehensive (in spite of the volume of material produced). I accept, however, that the assertions (by both parties) regarding inadequate disclosure, and any findings the Court may make in relation to the subject, are relevant to any application either party may make for a costs order arising out of the property case.
c)The husband's financial arrangements with his parents are not as he suggests they are, and his alleged partnership arrangements with them are neither authentic nor legitimate; instead they are reflective of a convenient legal fiction in the nature of a sham, false front or pale imitation of a genuine partnership. This assertion was also made, in a variety of forms, on many occasions in the wife's documents and during the trial. Again, there is some truth in it – but it ultimately leads nowhere (at least, from the point of view of an outcome in the property case). I make the following observations in relation to the assertion:
i)I have no doubt that the husband and his parents are and have always been tax averse. If an arrangement or transaction could benefit the family (comprising the husband and his parents) financially by reducing the burden of tax in any of its forms, then advantage would likely be taken of it. Similarly, if an arrangement or transaction could be structured in such a way as to reduce the burden of tax in any of its forms, then that structure would likely be adopted.
ii)It is not my role to comment on the commercial morality of the husband and his parents, and I do not propose to do so. I accept, however, that a very large number of individuals, entities and businesses in this country and elsewhere adopt precisely the same approach to the minimisation of tax.
iii)Relevantly, I am satisfied that the actions of the husband and his parents in this regard were indeed directed to the minimisation of tax; they were not carried out with the intention of defeating an existing or anticipated order in the property case. Equally as importantly, even if the actions of the husband and his parents in this context had been so intended, they were never likely to defeat any such order.
iv)During cross-examination, the wife said that, in her opinion, one third of P3's income should have been paid to the husband – and that it was "a miserable cop-out" for it not to have been. She said that there was "no balance" between the minimal amount the husband was contributing to the household comprising himself, the wife and later H (on the one hand) and the "massive amounts of money he was putting into the farming enterprise" (on the other). As will become apparent, there is some truth in the second of these observations.
v)The wife also said that the husband "hid money in the farm", in that she paid the bills while he "put money aside for a rainy day". At the end of the day, though, the wife conceded that the amount that would have converted what she regarded as the husband's inadequate financial contributions into adequate financial contributions on his part was only about $10,000 per annum.

d)The husband and his parents spent excessive amounts at inappropriate times in relation to the purchase of plant or machinery, or on other farm expenses. Again, this assertion was made, in a variety of forms, on many occasions in the wife's documents and during the trial – and again, there is some truth in it. Even so, it is difficult to see the relevance of the wife's assertions in this regard, unless she is (indirectly) suggesting that the Court should add back moneys spent in an inappropriate manner (see the discussion of the subject below). There is a possibility, of course, that the wife intends her assertions to be taken into account under the general heading of the parties' contributions in all their various guises, or in the process of considering the s 75(2) factors (or, conceivably, under the general umbrella of "justice and equity"). As important as these assertions are to the wife, however, the reality is that they make precious little difference to the outcome of the property case. In relation to the possible suggestion to the effect that that certain funds that no longer exist should be notionally added back to the property pool, I am not persuaded the evidence is such as to warrant the adoption of that course of action. My explanation for my view in that regard follows.
i)In Omacini & Omacini (2005) FLC 93-218, the Full Court said:
To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
a.Where the parties have expended money on legal fees. ...
b.Where there has been a premature distribution of matrimonial assets. ... [See Townsend & Townsend (1995) FLC 92-569]
c.In the circumstances outlined by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
A. where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
B. where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

ii)After citing the above passage from Omacini, the Full Court in Gollings & Scott (2007) FLC 93-319 said that, as a general rule, once parties have separated, they are entitled to get on with their respective lives independent of each other. That general rule is, however, subject to obligations of maintenance and support. It is also subject "to the type of considerations described in Kowaliw relating to waste" see Gollings & Scott at [68]. The Full Court in Gollings & Scott (citing C & C [1998] FamCA 143) also recognised that "the concept of adding moneys reasonably disposed of back into the pool ought to be the exception rather than the rule".
iii)In Shimizu & Tanner [2011] FamCA 271, Bryant CJ (sitting at first instance) applied a series of questions posed by Murphy J in Kouper & Kouper (No 3) [2009] FamCA 1080. Her Honour clearly approved the questions and found them useful. The questions are as follows:
•Is it contended that property (including money), that would otherwise be available for distribution between the parties if a s 79 order is made, has been dissipated with a consequential loss to the property otherwise potentially divisible between the parties at the date of trial?
•If so, is it alleged that the dissipation of property was in respect of things other than what, in the particular circumstances of this particular marriage, can be classified as 'reasonable living expenses'?
•If it is asserted that any loss to the divisible property results from dissipation of property other than in respect of such expenses, why is it asserted that the result should be a sharing of that loss by the parties other than equally?
•If it is contended that this be the result, why should there be an add back (which brings to account, dollar for dollar, such past expenditure in current dollars) as distinct, for example, from there being an adjustment being made pursuant to s 75(2)(o)?
•How should either any 'add back', or adjustment pursuant to s 75(2)(o), be quantified?

iv)In Mayne & Mayne (2011) FLC 93-479, Faulks DCJ at [91] expressed the view that her Honour the former Chief Justice's summary of the relevant law in Shimizu & Tanner, including the endorsement of the approach of Murphy J in Kouper, is "definitive of the issues". Strickland J disagreed at [183]. His Honour said that "there is nothing new (or definitive) in those decisions". The third member of the Full Court (May J) did not discuss this subject.
v)For what it is worth, and with respect, I am inclined to agree with Strickland J. I also agree with the following passages from his Honour's judgment at [175] and [184]:
[T]here is no warrant in any authority, in logic or otherwise to find that funds that have been expended by one party prior to separation cannot be notionally added back simply because the actions occurred prior to separation, and that is the case whether the basis for adding back is a finding of waste or non-disclosure. It is not the case that the only basis for notionally adding back assets is that one party should not benefit from a premature distribution. As has often been said it is also appropriate to notionally add back assets where there is financial misbehaviour or financial misconduct which has the effect of reducing the assets available for distribution.... Of course, individual circumstances may not justify the notional adding back, but that does not say anything about the ability to do that where warranted....
…
It is beyond doubt that notionally adding back assets is the exception rather than the rule.... However, it is also beyond doubt that the exception applies, for instance where there is conduct of the nature identified by Baker J in Kowaliw....

vi)Having regard to the principles set out above, and treating the questions posed by Murphy J in Kouper as being of assistance, I record that –
•it is not clearly contended that property or moneys that would otherwise be available for distribution between the parties has been dissipated with a consequential loss to the potential property pool;
•if such a contention had clearly been advanced, it is fair to say that the wife has indeed alleged that the dissipation of property or moneys was in respect of things other than those that can be classified as "reasonable living expenses";
•it is not clearly asserted that any loss to, or reduction of, the property pool should be shared in any particular way;
•it is unclear why there should be an add back of moneys inappropriately spent or the value of property inappropriately disposed of, as opposed to any relevant findings being dealt with under the general heading of the s 75(2) factors; and
•the evidence does not reveal how any add backs or adjustments should be quantified: in essence, the matter is left to the Court's discretion.

e)The husband's financial and non-financial contributions were "miserable", as were those of his family: they chose to invest in themselves: see, for example, WTA at [30] and [242] (in relation to the husband's minimal child support contributions). In effect, the husband "was permitted to make virtually no contribution to the child until he had complete control of it (sic) – just like a possession"; for all intents and purposes, the wife was "treated as an incubator": see WTA at [74], [89] and [91]. The husband "contributed so little as to be minuscule for the formative years of the child's life": see WTA at [881]. I have dealt with the parties' respective contributions elsewhere in these Reasons. Whatever may have been the case prior to the custody change, the situation has altered radically since that time.
f)The husband and his family treated the wife (and later the wife and H) unfairly and inappropriately. For example, during cross-examination the wife –
i)said that she was not given access to a car in which a child's car seat could be installed (and that she had to purchase a second-hand vehicle for this purpose);
ii)complained of having conditions imposed upon her before she could make use of the Farm's fuel;
iii)complained that she would have been accused of taking partnership assets if she had used the Farm's fuel and suggested that she had to "more or less steal it"; and
iv)said (bizarrely) that the husband's request for her to provide details of a bank account into which he could pay child support was irresponsible and amounted to financial abuse – and, further, that it was "a form of harassment, like stalking".

110In opening on 15 June 2015, the wife indicated that she sought orders that would provide her with a total of 23% of the net value of the property pool. She argued that she should be entitled to 20% of the property pool to take account of her contributions (in all their various guises), together with a further 3% to take account of the s 75(2) factors. She estimated that the value of her 23% share of the property pool would be in the order of approximately $700,000.
111At the commencement of the resumed hearing on 12 January 2016, the wife spoke of seeking a payment to her of $700,000, plus costs. She may or may not have included a claim in relation to land. Little turns on the precise orders sought by the wife, however, because – irrespective of the wife's earnest and unflaggingly enterprising approach to the property case – the quantum of her claim was always unrealistic. The basic, undisputed facts surrounding the parties' cohabitation and separation, and the fact that H is now in the husband's full-time care, should have alerted the wife to the fact that her property claim was, at best, a modest one. Nothing the wife had heard from any judicial officer in this or any other court could have led her to be sanguine regarding her prospects of being awarded a substantial amount by way of property settlement. Even the Full Court made it clear in the appeal judgment that the game was unlikely to be worth the candle, as it were. But the wife was resolute.

Husband's case, and relevant observations

112The husband sought orders as outlined in his papers for the judge filed 2 June 2015.
113In broad terms, he proposed a division of the property pool on the basis of 85% to him and 15% to the wife. This comprises an overall assessment of the parties' respective contributions on the basis of 65% to the husband and 35% to the wife, together with an adjustment of 20% in the husband's favour to take account of the s 75(2) factors.
114I am well aware of the findings regarding the parties' credibility made in the 2013 judgment and the 2014 judgment. Nevertheless, I did not find the husband to be an impressive witness. While his impatience with the wife and his frustration with the ongoing proceedings in which he finds himself involved are understandable, I had discomfort with certain aspects of his evidence. For example, I am not satisfied that he was open and frank when giving evidence about motor vehicle accidents in which (for example) his mother had been involved, and the financial consequences of those accidents. He appeared to adopt the attitude that these matters were none of the wife's business, and the less she (and, as a consequence, the Court) knew about them, the better.
115The husband said he was aware of his disclosure obligations, and had made full and frank disclosure. I have no doubt that the husband was aware of his disclosure obligations (which were discussed openly and in his presence on a number of occasions prior to the commencement of the trial), but I am far from satisfied that he was willing to meet them. He seemed to regard the wife's property settlement claim as an inconvenience, if not an impertinence – and I find that he was certainly not prepared to go out of his way to make the property case simpler from the wife's point of view. By way of example, I am satisfied that he made inadequate efforts to keep his disclosure relevant and up to date as time passed. Similarly, he suggested in evidence that certain statements related to accounts which were "not real" and that he "forgot" about them: see, for example, exhibits W27, W28 and W29. I do not accept his evidence in this regard. As well, he conceded that he had not disclosed certain "Statements of Position" which he prepared for P3's bankers on an annual basis (see, for example, exhibit W32) and that he had not disclosed a finance agreement relating to the Territory.
116The husband acknowledged that he had disclosed some documents late. In my opinion, some of the husband's disclosure was piecemeal, as well as being unjustifiably late. That is not to say that his disclosure was not substantial, and substantially complete – but there were gaps, and I find that the husband was well aware that there were gaps.
117In closing, Ms Giles sought to deflect the Court's attention from the deficiencies in the husband's disclosure by highlighting inadequacies in the wife's disclosure. For example, Ms Giles submitted that, in spite of the enormous number of documents attached to the wife's material, the wife –
a)omitted "crucial" bank statements which appeared to relate to settlement moneys which the wife received from her former partner shortly after the commencement of cohabitation;
b)omitted certain credit card statements and bank statements relevant to the identification of her expenditure – on livestock and generally; and
c)did not adequately explain how she had spent comparatively large amounts of cash withdrawn from time to time.

118I am aware of the insufficiency of the wife's disclosure and have not ignored it. Once again, though, the fact that the wife had many shortcomings as a witness and a litigant does not excuse – or adequately explain – the husband's shortcomings in this regard.
119The husband had considerable difficulty giving the wife credit where it was due. For example, when he had no alternative but to concede something positive about the wife's parenting role or contributions, he ensured that the concessions were heavily qualified. At other times, and as Ms Giles said in closing, the husband acknowledged the wife's contributions but, at the same time, pointed to his own contributions. Ms Giles described the husband's tendency in this regard as argumentative, annoying and unnecessary. I agree, but am not persuaded that it is irrelevant to the husband's credibility (as Ms Giles would have me accept). If the husband's tendency in this regard amounted to his only shortcoming as a witness and as a litigant, it might perhaps be of little consequence – but it was accompanied by other comments and actions (or inactions) to which I have made reference in these Reasons.

331I turn now to consider the s 75(2) factors. The headings I have used are simply a shorthand way of referring to each relevant consideration. I have either not referred to, or only mentioned briefly, factors which have no or minimal relevance to the present case.

Age and state of health

332I have already referred to the parties' ages. The husband describes himself as being in reasonable health (although he suffers from back problems, which he manages).
333I accept that there is no admissible medical evidence to the effect that the wife suffers from any health condition, whether physical or psychological, which impairs her income-earning capacity. I do not need such evidence. I have recorded my impressions of the wife and will presently deal with her capacity to work in paid employment. The long and harrowing history of these proceedings, and the Court's observations of and interaction with the wife over an extended period of time, comprise eloquent and persuasive evidence of the wife's health in the broadest sense.

Income, property and financial resources, earning capacity and capacity for employment

334I have referred to the wife's qualifications and work experience earlier in these Reasons.
335It is the wife's case that she has been "seriously affected by the miscarriage of justice" inherent within the parenting proceedings: see, for example, WTA at [188]. She says that the "trauma" she has experienced has adversely affected her capacity to work "in a meaningful and productive way", and that this situation is unlikely to change "until justice is done".
336In evidence, the wife said that she has been unable to work in paid employment or otherwise generate an income since August 2013 (when H was "taken"). She confirmed that she has been unable to work because of the trauma referred to in the previous paragraph. She added that "the trauma and grief caused by the injustice is horrific".
337The wife says she has not worked (in paid employment) since H was born and that "when and if she does return to the workforce, she will be in her late 40s after retraining and will not be able to obtain her financial security": see WTA at [906].
338The wife develops the above argument by emphasising that each time (what she regards as) fresh evidence is disclosed regarding either –
a) inadequate care, if not active abuse, of H; or
b) financial manipulation or further dishonesty on the part of the husband,
she is again traumatised, and distressed by her certain knowledge that H "is being perpetually punished and remains in a situation of risk". These reactions, in turn, conspire to prevent her from returning to paid employment.
339The husband's case, in a nutshell, is that the wife has been recognised as a vexatious litigant in relation to the parenting aspects of the proceedings, that the litigation has run its course (including in the appellate sphere), that serious, adverse findings have been made about the wife in the context of the parenting issues and that, at the end of the day, the difficulties about which the wife complains can fairly be categorised as self-inflicted wounds.
340In this regard, I note the following passages from the appeal judgment – which deal with the husband's application for the costs of the appeal (emphasis added):
144.We took costs submissions at the conclusion of the oral argument. [The husband and the ICL] sought costs in the event that [the wife's] appeals were dismissed. Counsel for the ICL was able to quantify her costs at $14,000…
145.… [The husband] sought costs of $54,976, which was arrived at after his solicitors had "written off and discounted a significant amount of work", and after his counsel had discounted her fee from over $43,000 to $7,250.
146.With the consent of the parties, we have read financial statements sworn in the property proceedings ([the husband's] filed on 24 February 2015 and [the wife's] on 18 May 2015). They indicate that [the husband] is in a far superior financial position to [the wife], who claims to have an excess of expenses over her very modest income and virtually no property. However, [the wife] is vigorously pursuing her property claim, and we therefore assume she considers she has an entitlement worth all of the bother and expense clearly being incurred.
147.[The wife] confirmed that she had not incurred any legal costs in the appeals, although she had incurred disbursements which she said included about $15,000 associated with the preparation of the appeal books.
148.[The wife] has been wholly unsuccessful in the appeals and the associated applications. As counsel for [the husband] pointed out, [the husband] and [the ICL] have had to contend with 83 appeal books, in addition to a plethora of other paper, the bulk of which was not referred to in the course of argument. Counsel for the ICL also complained about the haphazard way in which the books had been prepared and the time it took to locate and catalogue documents. The grounds of appeal were also amended on a number of occasions, always in a most confusing way.
149.While we accept that [the wife] seems to be in a dire financial position, and while we also accept that this may not be alleviated greatly, if at all in the property proceedings, we consider that [the wife] is the author of her own misfortune. We consider that the complete lack of merit in her appeals and the way in which they were conducted necessitates the making of an order for costs in favour of both [the husband] and [the ICL].
150.It is within our discretion to fix the costs, which would avoid what inevitably would be a tortuous and expensive assessment process. In our view, the costs sought by [the ICL] are modest and clearly appropriate. We also accept that the costs of [the husband] have been significantly discounted, and we are of the opinion that there is no warrant for any further discount, which would only leave [the husband] further out of pocket in defending unmeritorious and vexatious appeals and applications.
151.For these reasons, we propose to order that [the wife] pay the costs of [the husband] and [the ICL] in the sums sought. Those amounts relate only to costs incurred up to the end of the hearing in October 2015. Further costs would have been incurred in dealing with the later unmeritorious Applications in an Appeal. [The wife] should pay those as well.
152.[The wife] sought a delay in payment of any costs pending finalisation of the financial proceedings. Counsel for [the husband] pointed out that a $5,000 costs order was made against [the wife] following her unsuccessful application for an extension of time within which to appeal the residence order, and that the enforcement of that order was delayed until [the wife] received her property settlement. Counsel opposed the granting of any further indulgence to [the wife] on the basis that there was uncertainty as to whether there would be sufficient funds from the property settlement to meet a further costs order.
153.As [the wife] does not presently appear to have the capacity to meet the costs orders, we will delay enforcement until judgment is delivered in the financial proceedings or until those proceedings are discontinued, whichever occurs first.

341In my opinion, the wife has little control over the manifestations of her determination to reverse the injustices to which she believes H and herself have been subject. Her grim determination in this regard amounts to an obsession. That is not the husband's fault; nor is it the fault of the ICL, any expert witness, the Court or the justice system in the broadest sense (or anyone else, for that matter). I am satisfied, however, that it is the reality.
342During cross-examination, the husband told the wife that she has the capacity to work (presumably, in paid employment). By way of example, he referred to the fact that she had conducted trials "on her own". On the basis of the evidence before me, however, I am unable to conclude that the wife has the capacity to obtain or maintain paid employment in the foreseeable future. She will continue to fulminate against the injustices she believes H and herself to have suffered, and the unfair way in which she perceives they have been treated. She will also continue to contrive strategies and launch legal forays designed to justify her approach to the parenting case, vindicate that approach and exculpate herself in the process.
343The other side of this particular coin is that the husband will have to steel himself to deal, whether directly or indirectly, with aspects of the wife's obsessive behaviour. It is likely that she will give anxious thought to alternative avenues and methods of attack, not all of which will necessarily involve proceedings in this Court. The wife is intelligent, resolute and persistent. I have no doubt that, one way or another, she will continue her attempts to have the husband (and, no doubt, others) "held to account". As night follows day, these attempts will cause the husband stress and anxiety. They will also deflect his attention – to a greater or lesser extent – from his farming obligations and his broader parenting duties. In addition, they are likely to have an adverse effect on the husband's financial position (both because of the need to divert his focus from income-earning pursuits to putting out metaphorical fires lit by the wife and because of the burden of having to pay legal or other associated fees and disbursements).
344In relation to the parties' earning capacity generally, I note the Full Court's observation in Clauson & Clauson (supra) at 81,911:
It has long been recognised that in most cases the most valuable "asset" which a party can take out of the marriage is a substantial, reliable, income-earning capacity.

345As galling as it might be to the husband, I am more than satisfied that he has a substantial and reliable, income-earning (or income-generating) capacity. As I have observed, I am far from satisfied that the wife is in the same position. As Ms Giles conceded, the husband is wealthier than the wife. In my opinion, he is very substantially wealthier than the wife.
346I accept that the husband left school after Year 10, that he has no formal qualifications or skills and that farming is his livelihood. I also accept that the wife has tertiary qualifications and work experience which would, without more, imply that she has a reasonable earning capacity. As I have explained, however, it is most unlikely that the wife will have any capacity to earn a reasonable income within the next decade at least. She is consumed by the injustices and indignities to which she perceives she (and H) have been subjected by the husband, his parents and many others. Nothing in her presentation, or in the enormous volume of material available to the Court, gives me any confidence whatsoever that she will be able to obtain and maintain paid employment at any time in the foreseeable future; nor does the Court have any confidence whatsoever that she will be able to derive any more than very modest income from her own endeavours (including her involvement with the livestock). The simple fact is that these proceedings (as they relate to both parenting and property issues) have had a profoundly detrimental effect on the wife's emotional and psychological health. It is probably fair to say that the reverse is also true, but the Court must take the parties as it finds them: the husband is clearly far stronger than the wife in an emotional and psychological sense, and his earning capacity will remain significantly greater than hers for the foreseeable future.

Children under 18

347H is the only child of the marriage. He lives with the husband, who has sole responsibility for his care and supervision (even if he delegates assorted tasks to others). As I have said, this situation is most unlikely to change at any time in the foreseeable future.

Financial commitments

348The parties' respective financial commitments do not comprise a significant factor in this case. I have discussed their respective financial positions elsewhere in these Reasons. The husband concedes that he earns an income sufficient to support himself and H, and that he does not have a responsibility to support any other person: see HTA at [147].

Responsibilities to support any other person

349I have dealt with this subject in the previous paragraph.

Eligibility for pension, allowance or benefit

350The husband receives Family Tax Benefit A and B. In HTA, he says that the relevant amount is $324 per fortnight.
351The husband does not receive any other pension, allowance or benefit. He does not have an interest in any superannuation scheme or fund.

Reasonable standard of living

352I acknowledge that both parties are entitled to a reasonable standard of living.
353The husband says that he does not live an extravagant lifestyle, but that he is comfortable: see HTA at [150]. I am satisfied that much the same can be said of the wife.

Maintenance in the context of education or retraining

354This does not appear to be a relevant consideration.

Effect of orders on creditors

355This does not appear to be a relevant consideration.

Duration of marriage and its effect on earning capacity

356The marriage was of short duration. That short duration, in itself, has not affected either party's capacity to earn. The sequelae of the marriage and the marriage breakdown, however, have profoundly affected the wife's emotional and psychological health, and her earning capacity. There has been no equivalent impact on the husband's earning capacity.

Need to protect party's role as parent

357This does not appear to be a relevant consideration.

Cohabitation with another person

358The wife has remarried. She and Mr W married in early 2014, having lived together prior to that time: see WTA at [1000].
359The wife says Mr W has provided "commendable" support for her and H – but that (like her) he has been "affected by the injustice of the proceedings": see WTA at [999]. She adds that he has assisted her with the livestock (including in relation to agistment, labour, water, fencing, sharing and the like). He also "does gardening, driving, handyman chores and renovations" and that he "contributes financially and non-financially to the relationship": see WTA at [1000].
360Mr W owns the farming property on which he and the wife live. The greater part of Mr W's farm is leased to 3rd parties. Mr W receives the lease payments, amounting to approximately $20,000 per annum. According to the wife, Mr W's farm comprises approximately 1000 acres, of which she and Mr W occupy approximately 20 acres. These 20 acres include a homestead and an old shed. The livestock, and some cows and poultry, are kept on the 20 acres.
361Mr W previously worked as a [builder] (and occasionally as a [panel beater]), but has not been employed externally "since [H] was taken". He has also worked as a truck driver. He does not have a formal "ticket" as a builder.
362Ms Giles submitted that Mr W "lacks the will" to exercise his earning capacity – as does the wife. She submitted that Mr W could work as a truck driver or as a panel beater, or that the wife and Mr W could farm Mr W's property themselves. In my opinion, Ms Giles' submissions in this regard are unrealistic. I have already described the wife's focus on obtaining "justice" for herself (and, she believes, H). Mr W, who is her carer, is wholly supportive of her in this regard. As I have said, I must take the parties (and Mr W) as I find them; and I find the wife and Mr W to be incapable – for the foreseeable future – of exercising a greater earning capacity than is currently the case.
363The husband has not repartnered. He does not cohabit with anyone.

Bankruptcy provisions

364This does not appear to be a relevant consideration.

Child support

365In cross-examination, the wife said that she was paying $8.50 per week in respect of child support for H. She seemed dismissive of the obligation to pay realistic child support and, among other things, said that there was "no point" in paying eight dollars per week "to a very wealthy person".
366The wife also said that she sends H gifts (including clothing) on a weekly basis. She estimated that she spends something in the order of $20-$30 per week in this regard. She indicated that she would prefer that the child support she pays be put towards H's education, and not simply deposited in the husband's bank account.

Other relevant factor or considerations

367As I have said elsewhere in these Reasons, and by analogy with Reynolds, the potential future value to the husband of his interest as a partner in P3 and his position as the practical (indeed, the almost inevitable) successor to the entire farming enterprise conducted by P3, P2 and the husband's parents (including Property A) is both significant and relevant. Bearing in mind that the Full Court in Reynolds had discomfort with the categorisation of the generosity of the family of the husband in that case as a financial resource pursuant to s 75(2)(b), I am satisfied that it must be taken into account under s 75(2)(o) as a fact or circumstance which the justice of the case requires to be taken into account.
368I have not ignored the evidence of the husband and his parents to the effect that he has siblings and that his parents propose to divide their estate among their children equally. Notwithstanding that evidence, I am satisfied that there is no realistic possibility of the husband not continuing to manage (and be beneficially entitled to) the farming enterprise after his parents' passing. I accept that the husband will have to reach some accommodation with his siblings to enable him to retain the farming enterprise in its entirety – but, irrespective of what that accommodation may entail, the very strong likelihood is that the husband's personal financial position will improve dramatically after the death of his parents.
369In HTA, the husband argues as follows:
160.Through her actions and relentless pursuit of me and her desire to stop me having any relationship with [H], [the wife] has significantly diminished the asset pool. She has essentially been wholly unsuccessful with her child litigation. [The wife] has put herself in her present financial position through her dishonesty and false allegations against me.
161.[The wife's] present financial position, if it is what she discloses it to be, is of her own making. She has wasted her assets. [The wife] has wasted her assets and caused a significant amount of wastage in mind through incurring these legal fees and cost.

370The husband is suggesting, of course, that any financial or other hardship the wife may now be experiencing is her own fault. There is some truth in this, as the 2013 judgment, the costs judgment, the 2014 judgment and the appeal judgment make clear. Still, the issue of costs in relation to the parenting aspect of the proceedings has been considered and dealt with. The wife was ordered to pay a very substantial amount towards the costs of the husband and the ICL. Indeed, the quantum of costs she was ordered to pay was unusually high (at least in the experience of this judicial officer). That is not to say that the costs order was unreasonable or inappropriate. That it was hefty, however, cannot be denied.
371I refer to the comments made by Baker J in Kowaliw at 76,644. Although I have referred to them above, it may be helpful to repeat them here:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

372His Honour's comments have been approved by the Full Court on many occasions.
373I am not satisfied that, whether before or after separation, the wife embarked upon a course of action designed to reduce or minimise the effective value or worth of the parties' assets. Similarly, the evidence does not enable me to conclude that the wife acted "recklessly, negligently or wantonly" with her or the parties' property (in any form).
374I am satisfied that the wife's conduct of the proceedings (in all their various forms) has been an attempt on her part to obtain orders that she perceives are in H's (and her) best interests. Many of the steps she has taken have been misguided, and some of them seriously so. She has also persisted with unnecessary, unhelpful and demonstrably ill-fated applications in a variety of contexts. She has blamed a wide array of people and institutions for what, in the end, have been her own shortcomings. She has not been easily dissuaded from adopting positions which are unsustainable, if not unarguable. She has seen fit to view herself as a lone warrior battling dark and overwhelmingly powerful forces. Other judicial officers – at first instance and on appeal – have commented on her insight (or lack thereof), her determination and, to an extent, her bona fides. It is unhelpful, and potentially destructive, for me to add to those comments – save to say that, in relation to this particular aspect of the proceedings (namely, the property case) I have always found the wife to be respectful and polite. I have also found her to be as single-minded and grimly determined as she proved to be before the other judicial officers.
375The wife's lack of success in the parenting proceedings was total. The dominant costs order was made against her. She paid it, at considerable inconvenience to herself. She was unable to set it aside on appeal. It is a factor that I take into account – but with considerable caution.
376In so far as her conduct of the property case is concerned, it seems to me that this is a matter that should properly be considered when and if an application for costs is made by one party or the other. In other words, I am not persuaded that I should regard the wife as having "wasted" her assets, or those of the husband, in the property aspect of the proceedings. Nor am I persuaded that the wife's current parlous financial position is entirely her own fault. The circumstances surrounding the current litigation are far more complex than that.
377As I observed in a recent judgment, it is important to emphasise that the Court is not concerned with "punishing" the wife in any relevant respect: it intends to do no more (and no less) than make orders that it perceives are just and equitable within the meaning and contemplation of that term in s 79(2). I have already described the "pathway" to the making of just and equitable orders, as I understand it to be. As long and broad as the pathway may appear, it does not traverse territory properly considered as being within the provinces of punishment or retribution. By the same token, it does not pass through a landscape in which amorphous concepts such as sympathy and compassion predominate – except to the extent that those qualities might properly and fairly inform or fall to be considered under the general rubric of justice and equity (the metes and bounds of which cannot be charted).
378In summary, and so that there should be no misunderstanding, I confirm that I do not propose to give consideration to the concepts of punishment, retribution, sympathy or compassion. I have done my best to follow the law as I have described it above, and have exercised my discretion in accordance with established principles.

Conclusions regarding the s 75(2) factors

379In my opinion, the most significant of the s 75(2) factors are –
a)the husband's far superior financial position, including the formal or informal financial resources available to him (referred to above under the rubric of s. 75(2)(o));
b)the husband is now H's primary carer, and will almost certainly continue in that role for the foreseeable future;
c)the wife has remarried, has a very limited earning capacity and is now of modest means;
d)the effect of the dominant costs order; and
e)the wife pays no or almost no child support for H, and it is unlikely that she will pay anything more than extremely modest child support for him at any time in the foreseeable future.

380I emphasise, however, that I have not ignored any of the other matters referred to under the heading Section 75(2) factors.
381Having regard to all the evidence before me, I am persuaded that it is appropriate to make an adjustment on the basis of the s 75(2) factors. I am so persuaded because the purpose of the s 75(2) adjustment is to assist the Court in the process of arriving at a just and equitable result. To refuse to make an adjustment in the present proceedings would be to run the risk of making orders which are neither just nor equitable.
382In her closing address on 20 January 2016, Ms Giles submitted that an appropriate adjustment to take account of the s 75(2) factors is 20% in the husband's favour. I do not agree.
383On balance, and all the circumstances, I conclude that an appropriate adjustment to the parties' entitlements based on contribution alone – which adjustment is to take account of the considerations under the general heading of the s 75(2) factors (and to assist in avoiding the making of orders which are neither just nor equitable) – is to increase the husband's entitlement by something between 7.5% and 10% (and decrease the wife's entitlement by a corresponding amount). Once again, because it would be intellectually dishonest for me to choose either of these figures, I shall choose the midpoint – being 8.75% – as being appropriate. I recognise, of course, that such an adjustment creates a "differential" between the parties of 17.5%.
384It follows that the overall distribution of the property between the parties should be on the basis of 18.75% to the wife (being 27.5% in respect of contribution and a reduction of 8.75% to take account of the s 75(2) factors), and the remaining 81.25% to the husband.
385Clearly, the observations I have already quoted from G & G (supra) and Steinbrenner& Steinbrenner (supra) also adhere to the exercise of judicial discretion I have just performed in relation to the s 75(2) factors.

Just and equitable?

386As indicated above, the High Court in Stanford explained that the consideration of the various factors in s 79(4) – which includes reference to s 75(2) factors – does not automatically give rise to a right on the part of either party to have the property divided by reference to those factors. The requirement contained in s 79(2) must be considered and applied. This I have done above. I am satisfied that it is just and equitable for the Court to make a property settlement order. That order is to be determined by applying s 79(4), although, clearly, the form of the order must also be just and equitable.
387As I have said, I disagree with Ms Giles' submission to the effect that it would not be just and equitable to make any orders altering the interests of the parties in their property. In any event, even if I have erred in some way in assessing and giving weight to the parties' respective contributions (in all their various guises) and/or the s 75(2) factors, I am more than satisfied that it would not be just and equitable to adopt the primary approach pressed upon me by Ms Giles.
388I now propose to (metaphorically) step back and consider whether the outcome achieved by my consideration of the parties' contributions and the s 75(2) factors has indeed brought about a just and equitable result.
389The Full Court has cautioned against assessing the s 75(2) factors in percentage terms, without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is "the critical issue": see Clauson & Clauson (supra).
390If the wife is entitled to 18.75% of the property pool, then she is entitled to property to the value of $431,033 (being 18.75% of $2,298,842). The net value of property currently in her possession or under her control (including her superannuation and the amount of $300,000 already paid in respect of legal fees) is $298,342. It follows that if the wife is to retain that property, then the husband must pay her the sum of $132,691 (being the difference between $431,033 and $298,342).
391In the present case, the s 75(2) adjustment equates to $201,149 (being 8.75% of $2,298,842) – which creates a "differential" of $402,298. I am satisfied that such an adjustment is proper. Indeed, I am also satisfied that the adjustment is proper when regard is had to the difference between the wife's overall entitlement (being 18.75%) and the husband's overall entitlement (81.25%), which difference equates to 62.5% of the property pool (or approximately $1,436,776). Such a result is just and equitable.
392I am very conscious that justice and equity must be done to both parties, and I am satisfied that the split that I have proposed achieves that result.
393Finally, even if the parties' contributions and the s 75(2) factors were to be assessed in a global sense (without attributing percentages, or percentage adjustments, at any stage), I am satisfied that a division of the parties' property on the basis of 81.25% to the husband and 18.75% to the wife achieves a just and equitable outcome.

Structure of the orders

394The wife should retain the assets and liabilities (and her superannuation entitlements) listed in items #26 to #35 inclusive of the property schedule. The husband should retain the assets and liabilities listed in items #1 to #25 of the property schedule.
395The husband would ordinarily be obliged to pay the wife $132,691 to achieve an overall division of the parties' property on the basis of 81.25% to him and 18.75% to the wife. However, item #33 comprises an outstanding costs order, which the wife owes to the husband and the Legal Aid Commission. Item #24 is the corresponding figure as it relates to the (assessed or otherwise fixed) costs payable to the husband. This item reveals that the wife owes the husband $59,976 in respect of outstanding costs orders.
396In order to simplify arrangements, therefore, the husband will be required to pay the wife $72,715 (being the difference between $132,691 and the outstanding costs orders totalling $59,976). The husband will then be required to indemnify the wife in respect of her liability to him for the sum of $59,976.
397I am aware that the husband has other claims for costs against the wife (relating to existing orders for costs referred to in these Reasons). Ms Giles suggested that these claims might total something in the order of $10,000. If the parties can agree the quantum of these costs, they should also be deducted from the amount the husband would otherwise have to pay the wife. Thus, and if the quantum of the unquantified costs orders is indeed $10,000, the husband will be required to pay the wife $62,715 instead of $72,715 (and provide the relevant indemnity).
398Irrespective of whether the husband is required to pay the higher figure or the lower figure (or something approximating those figures), I propose to order that he pay the relevant sum within 45 days. In my opinion, and having regard to my findings regarding his financial position and his overall responsibility for the conduct of the Farm, this timeframe is more than reasonable.
399I shall now hear the parties regarding orders to be made pursuant to these Reasons.

I certify that the preceding [399] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
20 December 2017

Details

AGLC: SPENCER and SPENCER (PROPERTY DISPUTE) [2017] FCWA 174
Case: [2017] FCWA 174
Decision Date: 20 DECEMBER 2017

CaseChat Overview and Summary

The matter before the court involved a dispute between a former husband and wife, where the wife sought an alteration of the property interests as agreed upon in their settlement agreement. The wife argued that the settlement agreement was not fair and reasonable due to changes in their financial circumstances and the wife's contribution to the family's wealth. The Family Court of Australia was tasked with determining whether the settlement agreement was indeed inequitable and if so, what alterations, if any, should be made.

The primary legal issue was whether the settlement agreement was fair and reasonable in light of the changes in circumstances since the agreement was made. The court had to consider the principles of fairness and reasonableness as outlined in relevant case law and statutes, including the Family Law Act 1975. The court also had to determine the appropriate weight to give to the wife's contributions to the family's wealth during the marriage and post-separation.

In delivering judgment, the court found that the settlement agreement was not fair and reasonable given the significant changes in circumstances since the agreement was made. The wife had made substantial contributions to the family's wealth, both during the marriage and after the separation. The court emphasised that the contributions made by the wife, both financial and non-financial, were of considerable importance and should be reflected in the property settlement. The court further held that the wife's contributions to the family's wealth were not adequately recognised in the original settlement agreement. Consequently, the court made orders altering the property interests to reflect a more equitable distribution.

The court ordered that the property interests be adjusted to provide the wife with a greater share of the assets, reflecting her contributions and the changes in circumstances since the original settlement. The orders also included provisions for the payment of spousal maintenance to the wife.

Orders