Steen and Steen and Anor

FAMILY COURT OF AUSTRALIA

STEEN & STEEN AND ANOR

[2016] FamCA 427

FAMILY LAW – PROPERTY - Settlement in relation to marriage – Where the husband and wife were married for 12 years – Where there are two children of the marriage – Where the husband is significantly older than the wife – Where the husband and wife operated a business – Where the second respondent owns a 20 per cent interest in the property owned by the husband and wife – Where the husband and the wife on the one hand, and the second respondent on the other, came to an agreement as to the final treatment of the second respondent’s interest in the property – Where the wife seeks that she receive 70 per cent of the proceeds of sale of the property – Where the husband seeks that he retain the property and the business and pay the wife a sum – Where the financial contributions made by the husband exceed those of the wife – Where the non-financial contributions are equal – Where the wife’s contributions to the family exceed those of the husband – Where the Court is of the view that contributions were made in the proportions 55 per cent by the husband and 45 per cent by the wife – Where no adjustment is warranted – Orders made for the asset pool to be divided in the proportions 55 per cent to the husband and 45 per cent to the wife.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 75(2), 79

In the Marriage of Coghlan (2005) FLC 93-220
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Lenehan (1987) FLC 91-814
In the Marriage of Norbis (1986) FLC 91-712
In the Marriage of Omacini (2005) FLC 93-218
In the Marriage of Pierce (1999) FLC 92-844
In the Marriage of Shewring (1998) FLC 91-926
Stanford v Stanford (2012) 247 CLR 108
In the Marriage of Zyk (1995) FLC 92-644

APPLICANT:

Ms Steen

RESPONDENT:

Mr Steen

SECOND RESPONDENT:

Mr Freeman

FILE NUMBER:

SYC

1127

2012

DATE DELIVERED:

2 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATES:

TENDER OF WRITTEN EVIDENCE
AND FINAL SUBMISSIONS:

23 – 27 November 2015

12 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

John De Mestre & Co Pty Ltd

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE

FIRST RESPONDENT:

Aitken Lawyers

COUNSEL FOR THE FIRST

RESPONDENT:

Ms Lawson

SOLICITOR FOR THE SECOND RESPONDENT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE SECOND RESPONDENT:

Mr Kenny

Orders

Within forty two (42) days of the date of these Orders the wife shall do all acts and things and sign all documents so as to transfer to the husband all her right title and interest in the property known as B Street, Suburb C in the State of New South Wales, being the whole of the land contained in Certificate of Title Folio number … (“the Suburb C property”).
Simultaneously with the above transfer the husband shall pay to the wife the amount of $746,754 by way of bank cheque.
Simultaneously with the above transfer the husband shall do all acts and things and pay all moneys so as to discharge the wife’s liability pursuant to any mortgage secured over the Suburb C property and provide to the wife a copy of the discharge of mortgage.
In the event that the husband neglects, refuses or otherwise fails to comply with Orders 2 and 3, the second respondent shall be entitled to purchase the interest of the husband and wife in the Suburb C property and shall within fourteen (14) days of the husband’s default, advise the husband and wife in writing if he does not intend to purchase the property.
In the event that the preceding provision applies but the second respondent does not notify the husband and the wife that he does not intend to purchase the property, he shall within eight (8) weeks of the date of default by the husband of Orders 2 and 3 herein, pay $1,453,246 to the husband and $746,754 to the wife.
Simultaneously with those payments the husband shall pay all moneys so as to discharge the wife’s liability pursuant to any mortgage secured over the Suburb C property and provide to the wife a copy of the discharge of mortgage and the husband and the wife shall do all acts and things and sign all documents so as to transfer to the second respondent all of their right, title and interest at law and in equity in the property.
The husband and the wife shall be solely responsible to deduct from their share any moneys due in respect of the mortgage secured on title including but not limited to all mortgage repayments, discharge of mortgage, related costs, fees and charges and any other expense of whatsoever nature or kind related to the mortgage secured on the property.
Excluding utilities, all other outgoings of the property calculated to the date of transfer or sale of the property as the case may be, shall be apportioned as to the second respondent 20 per cent and as to the husband and wife 80 per cent including but not limited to council and water rates, insurances, levies, land tax and any other outgoings. Note that the applicant does not concede she has any responsibility for such outgoings.
Each of the husband, the wife and the second respondent shall be responsible for the payment of their own utilities being telephone and electricity.
Should the second respondent fail to purchase the interest of the husband and wife in accordance with the preceding orders, then the property is to be sold.
In the event that Order 10 applies, the agent acting in respect of the sale for all parties shall be D Agents or such other agent as the parties agree and the agent’s fees and commission including costs of sale and any auction expenses shall be apportioned as to the second respondent 20 per cent and as to the husband and wife 80 per cent. As to the costs payable by the husband and wife, they will be met as to 55 per cent by the husband and 45 per cent by the wife.
The solicitor acting in respect of the sale shall be as nominated by D Agents or will be agreed by the parties and subject to Order 13, the parties shall meet the solicitor’s fees and disbursements in the proportions, as to the second respondent 20 per cent and as to the husband and wife, 80 per cent. As to the costs payable by the husband and wife they will be met as to 55 per cent by the husband and 45 per cent by the wife.
In the event that the solicitor acting on the sale of the Suburb C property incurs costs due to a dispute between the husband and the wife then those costs shall be solely payable by the husband and wife and they will apportioned between them as to 55 per cent by the husband and 45 per cent by the wife.
The parties shall follow the written advice of the agent as to sale by private treaty or auction but in the event that the property is listed for sale by private treaty and fails to sell after six (6) months from the date of listing, then the parties shall do all acts, sign all documents and give all consents necessary to affect a sale of the said property by auction or as may be recommended by the selling agent.
In the event that the property is listed for auction, the parties shall co-operate with all reasonable directions of the listing agent and/or the auctioneer and shall attend to provide instructions to the auctioneer.
In the event that there is any dispute as to a listing price, sale price, auction or any other matter relating to the manner in which the property is sold or the price for which the property should be sold, such issue shall be determined by the nominated valuer. The parties shall be bound by his or her determination and shall meet the costs of the appointment in proportion to their share of the proceeds of sale.
In the event that the property is sold in accordance with these Orders, then subject to the deductions as set out in paragraphs 7 - 9, 11 and 12 hereof, the proceeds of sale shall be distributed:
a)As to the second respondent 20 per cent;
b)To discharge any mortgage secured over the Suburb C property;
c)As to 55 per cent of the remaining net proceeds to the husband; and
d)As to the balance, to the wife.
In the event that any party should neglect or refuse to sign any document or give any consent necessary to give effect to these Orders, then the Registrar of the Court shall and is hereby empowered pursuant to s 106A of the Family Law Act 1975 (Cth) to sign such document and give such consent on behalf of the defaulting party. Such default shall be evidenced by affidavit. It shall be sufficient default in the event that any document forwarded by pre-paid post to the recipient is not received back executed within seven (7) days of being first sent.
The parties are at liberty to apply to restore the matter to the list within twenty one (21) days in relation to the form of the Orders.
The parties are at liberty to restore the matter to the list on fourteen (14) days’ notice to the other parties and to the Court in relation to any matters relating to the implementation of the Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Steen & Steen and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1127 of 2012

Ms Steen

Applicant Wife

And

Mr Steen

First Respondent Husband

And

Mr Freeman

Second Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings for property settlement in the context of a marriage that spanned more than 12 years. During the trial the wife and husband agreed with Mr Freeman (“the second respondent”) about the way in which Mr Freeman’s interest in a jointly owned property at Suburb C will be recognised.
The main disputes between the wife and husband relate to the identification of the relevant pool of assets and the assessment of their contributions.

Applications

Subject to an agreement made on the first day of the trial in respect of the second respondent’s interest in the property at B Street, Suburb C (“Suburb C property”), the applicant wife sought orders as set out in her Case Outline document dated 19 November 2015, as follows:
·That the wife, the husband and the second respondent forthwith do all things and execute all necessary documents to cause the property at B Street, Suburb C NSW … (“Suburb C Property”) to be sold as soon as reasonably practicable and to cause the proceeds of the sale to be distributed as follows:
oPayment of agent’s commission and advertising expenses and legal expenses of the sale;
oPayment to the second respondent of 20 per cent of the amount then remaining;
oPayment of any money due and owing to the mortgagee;
oPayment to the wife of an amount equivalent to 70 per cent of the balance then remaining;
oPayment of the balance to the husband; and
·Liberty to apply in relation to the terms and execution of the sale of the Suburb C property.
The respondent husband sought property settlement orders pursuant to a Minute of Order attached to his Case Outline document dated 20 November 2015 to the following effect:
·That the husband pay the wife $300,000;
·That the husband retain the Suburb C property and discharge the associated mortgage;
·That the husband retain the company Steen Pty Ltd and indemnify the wife in relation to same;
·That otherwise the husband and wife retain what they have and responsibility for what they each owe.
The second respondent also sought orders in relation to the Suburb C property. As is referred to above, on the first day of the hearing there was an agreement between the wife, the husband and the second respondent and orders were made in terms of that agreement. On that basis the second respondent withdrew from the hearing and his lawyers were excused, however the second respondent remained a party to the case and remained a witness in the husband’s case. The effect of the agreement was:
·That the husband have the first opportunity to retain the Suburb C property;
·In the event that the husband retains the Suburb C property and is ordered to pay the wife a sum, but does not pay the wife the sum determined by the Court, the second respondent has the option of buying the interests of the wife and husband in the property for 80 per cent of the agreed value which amounts to $2,200,000. That sum is to be to paid to the wife and husband in proportions to be determined by the Court;
·In the event that the second respondent has that opportunity and does not purchase the interest of the wife and husband within a specified period, the property will be sold and the second respondent will receive 20 per cent of the net proceeds of sale, calculated after sale costs but before the discharge of the parents’ mortgage.

Written Evidence

The applicant wife relied on:
·Affidavit of Ms Steen filed 19 February 2015;
·Financial Statement of Ms Steen filed 20 April 2012;
·Financial Statement of Ms Steen filed 20 November 2015;
·Affidavit of Ms E filed 19 February 2015; and
·Affidavit of Mr E filed 19 February 2015.
The respondent husband relied on:
·Affidavit of Mr Steen filed 24 June 2015;
·Financial Statement of the husband sworn 23 November 2015;
·Affidavit of Ms F filed 24 June 2015; and
·Affidavit of Mr Freeman filed 3 January 2013.

The Hearing

The proceedings were listed for hearing in relation to parenting and property settlement issues over five days commencing on 23 November 2015. As is referred to above, on the first day of the trial, orders were made resolving the property issues as between the wife and husband on one hand and the second respondent on the other.
The parenting proceedings concerned parental responsibility and living arrangements for G, who is 12 years of age and H, who is 11 years of age. Ultimately the wife, the husband and the Independent Children’s Lawyer (“ICL”) were able to resolve the parenting issues and on 27 November 2015, final orders were made in terms of their agreement. Those orders are set out later in these reasons.
Much of the focus of the parties both in preparation for and during the trial was on the parenting issues. No doubt the resolution of the claims of the second respondent also consumed considerable attention prior to agreement being reached in that regard. Perhaps as a result, during the hearing not all relevant issues were fully addressed in respect of the property settlement dispute between the husband and wife. For example, at the conclusion of the trial there was no formal valuation evidence or agreement about the value of some assets. On 27 November 2015 orders were made allowing any further valuation evidence in relation to particular livestock owned by the husband and wife to be provided to the Court within seven days. Leave was also granted to the parties to provide any further evidence in respect of a Westpac loan account in the name of the wife[1] within 14 days or such further time as the parties agreed. Otherwise judgment was reserved.
[1] Exhibit 12
On 11 December 2015 the solicitor for the wife wrote to the Court and sought a further week (to 18 December 2015) to comply with the last mentioned direction. Nothing was received by 18 December 2015. In early April 2016 an enquiry was made by the Court of the solicitor for the wife as to whether any further evidence would be relied on by the parties. On 12 April 2016 an email was received from the solicitor for the husband. Omitting the formal parts, the email contained the following:
We refer to the Directions made at the conclusion of the trial in this matter.
The parties have now collaborated and the following documents are enclosed for filing and inclusion in the evidence/submissions of the parties:
1.Joint Balance Sheet
2.Submissions of the Applicant Mother / Wife
3.Submissions of the Respondent Father / Husband
4.Bundle of Flexi Loan Statements to be added to Exhibit 12.
5.Updated valuation by [I Valuers].
We confirm in accordance with the Directions of the Court these submissions related to the matters that remain in dispute on the Balance Sheet. The parties confirm that this now concludes the evidence and submissions in relation to the property aspect of the matter.
…
With that additional evidence, the cases of the wife and husband were closed and judgment was again reserved.

Short History

The husband was born in 1952 and at the time of the hearing was 63 years of age. The wife was born in 1972 and at the time of the hearing was 42 years of age. They were married in 2001 and separated in October 2011. On 17 June 2013 their divorce became final.

The Children

There are two children of the marriage:
·G, who was born in 2003 and at the time of the hearing was 12 years of age; and
·H, who was born in 2004 and therefore turned 11 years of age during the hearing.

Credibility

There are few if any issues that fall to be determined by reference only to the uncorroborated testimony of one of the parties.
The wife was generally a good witness. However, she was not able to give reliable evidence about her current income. She said that she is assisted in her business affairs by her father. I understood her to mean that he undertakes a bookkeeping or account keeping role for her and otherwise organises some of her finances and therefore he would have greater familiarity with the detail of that bookkeeping than she.
The wife’s parents were both cross-examined. They were not successfully challenged on any issue.
The husband too was generally a good witness. Without hesitation he made a number of concessions in relation to matters about which there was no other evidence. Concessions were needed because, as with the wife, some of the information in his Financial Statement was confusing and wrong. For instance, his income was said to be $899 per week when it became clear in cross-examination that it is of the order of $3,000 a week. Under cross-examination the husband made no attempt to defend the written evidence, readily conceding that the weekly shortfall in his budget described in his Financial Statement, did not exist.

Background Facts

The husband has a son from a former relationship, Mr J Steen, who at the time of the hearing was 28 years of age.
The husband is a trainer who had a long career as a professional athlete and trainer. In 1975 the husband commenced operating Steen Pty Ltd.
In June 1986 the husband purchased the Suburb C property.
In approximately 1992 the wife became a professional athlete. She subsequently competed at the highest level in the sport. The wife later developed a business in training.
In 1992 the husband registered Steen Pty Ltd (“SPL”) and thereafter conducted his business through that company.
In 1996 the wife’s parents purchased a property in Suburb K, New South Wales (“the Suburb K property”), a five acre lot with facilities for training. The wife, her parents and siblings moved to the Suburb K property. The wife based her business at the Suburb K property.
The second respondent is a trainer and has lived in an apartment on the Suburb C property since 1993. In July 1998, the husband entered into a joint venture agreement to sell 20 per cent of the Suburb C property to the second respondent for $200,000. A Deed of Acknowledgment was entered into between them in October 1998 and a Deed of Priority and Mortgage was signed in May 2002. Mr Freeman paid $150,000 in 1998 and it was agreed that the remaining $50,000 would be paid over time. The husband agreed in these proceedings that the property had a value of the order of $1,000,000 in November 1998.
In 1999 the wife attended the World Cup of her sport.

In 2000 the wife participated in the Sydney Olympic Games.
The wife and husband commenced their relationship in approximately July 2000.
In 2001 the wife and husband were married and commenced cohabitation at the Suburb C property.
At this time, the husband and wife combined their respective businesses under the umbrella of SPL.
From 2001 to 2006 the wife received a yearly distribution from her parents’ family trust of about $30,000 per year.
From 2001 to 2010 the parties travelled nationally and internationally, both together and separately for the purpose of business and to attend competitions.
In 2002 the wife competed in the World Cup.
In 2003, G was born to the husband and wife. After the birth of G, the wife took a four month break from her work.
In 2004, H was born.
In approximately 2005, SPL employed staff on the property to assist with child care. That arrangement was later terminated and the wife’s mother began to care for the children each day at the Suburb C property.
From July 2005, SPL started paying wages of $600 per week to each of the wife and husband. The wife said that frequently SPL did not have enough funds to pay their wages. The wife said she used her wage to pay for household expenses and that prior to her receiving a wage, those expenses were met by the wife from funds provided by the husband in cash. The wife said that during this time she was also receiving an irregular income from private clients of approximately $800 per month.
By way of additional evidence in chief, the wife said that in February 2006 her great uncle, Mr L gave her $18,000. The wife said she applied this money towards paying off the personal loan which she brought into the marriage.
On 7 July 2006 the wife sold a half share in the M livestock (“M”), to Mr N for $300,000. She used some of those moneys to fund her trip to Europe to compete in the World Cup. The husband gave evidence that the arrangement to sell a share in the M livestock to Mr N was made by him.
Mr E said that from 2007 to 2011 the wife’s parents gave her $5,000 per year in addition to meeting veterinary bills and other related expenses.
The wife said that in 2007, a livestock disease became a problem in Australia which led to a downturn in business for SPL. The financial records of SPL were not in evidence.
The wife deposed to making a number of financial contributions to SPL throughout 2007 including:
·On 8 January 2007 she transferred $5,000 to SPL as a loan;
·On 2 March 2007 she transferred $2,700 to SPL as a loan;
·On approximately 28 May 2007 she withdrew $206,483.03 from her Westpac One Account and the account was closed. She transferred $100,000 to the mortgage on the Suburb C property, which was redrawn by the husband to use for SPL. The balance of $106,000 was transferred into the wife’s Max-I Direct Account;
·On 22 November 2007 she transferred $21,751.80 to SPL as a loan; and
·On 3 December 2007 she transferred $81,300 to SPL to fund the purchase of a new car for the husband.
On 2 November 2007 M was sold. On that day $735,000 was deposited into the wife’s Westpac One Account. She then transferred this amount to her Max-I Direct Account. The wife paid $330,541.04 to Mr N for his 50 per cent share of the net sale proceeds. I assume that the wife’s share of the net proceeds was also $330,541.04.
In December 2007 the husband’s 80 per cent share of the Suburb C property was transferred from his sole ownership, to him and the wife as joint tenants.
The wife said that in February 2010, her great uncle, Mr L gave her $25,000. The wife said she used this money towards competing overseas.
In mid-2010 the husband tore his groin adductor muscle.
In July 2011 the husband went to Europe to compete for approximately three months. The wife said that she looked after the children and ran SPL during this time. The wife deposed that the husband unilaterally withdrew $80,000 from the SPL bank account leaving it with a zero balance.
In October 2011 the wife competed in the National Championships.
On 31 October 2011 the wife and husband separated.
Following separation, the husband initially remained in the former matrimonial home at the Suburb C property. On 8 November 2011 he moved into a van on the Suburb C property. The wife then moved with the children to her parents’ property at Suburb K, at which point the husband returned to living in the main house at the Suburb C property. The husband said that the wife took with her when she left, a trailer full of livestock feed valued at approximately $500 - $1,000.
The husband said that following separation he paid the wife $800 per week in wages from SPL. He said he paid himself $400 and the wife $800 “as she was to have the care of the children”[2]. Prior to separation a wage of $1,200 from SPL had been paid into a joint account.
[2] paragraph 456 of the husband’s affidavit
The husband said that without the husband’s knowledge or consent, on 7 November 2011 the wife withdrew $2,000 from the SPL account to buy equipment.
The husband did not spend overnight time with the children from October 2011 until 14 February 2012 when interim orders were made.
From mid-November 2011 until April 2012 the wife obtained income from giving lessons and was otherwise supported by her parents.
The husband said that without his knowledge or consent in November 2011 the wife withdrew $1,000 from the SPL account.
The husband said that in December 2011 a SPL client paid the wife an amount of $5,500 and that the wife retained this for her own purposes.
The husband said that from 28 December 2011 he commenced paying the wife $250 per week in child support. He said he also paid the school fees and other related expenses for the children.
During 2012 the husband sustained an injury to his shoulder. The injury required surgery and four to five months of recovery time. The husband deposed that the injury still causes him pain, and he has been told that it will be symptomatic for the rest of his life.
The husband said that from 14 February 2012 he was continuing to pay $250 per week in child support, in addition to all school fees, school uniform costs and extra-curricular expenses for the children, health insurance for the wife and children, life insurance for the wife and other expenses.
From February 2012 the husband commenced spending time with the children overnight on one evening per week in accordance with interim orders.
On 5 March 2012 further interim orders were made permitting the wife to travel with the children overseas to participate in a competition, for the husband to spend time with the children while they were overseas and prior to their departure. The husband spent time with the children in accordance with the orders up until their departure and spent about a week with them while they were overseas.
From approximately June 2012 when the wife and children returned from overseas, until the second interim hearing in January 2013, the husband spent time with the children each week, from the conclusion of school on Tuesday until the commencement of school on Thursday.
From June 2012, as a result of his injuries the husband reduced his physical activity.
In October 2012 the wife’s parents sold the Suburb K property and purchased a five-acre property at Suburb O, New South Wales (“the Suburb O property”). The wife said that they purchased the Suburb O property so that she and the children could have a home and to allow the wife to have a place to rebuild her business.
On 7 January 2013 the husband and wife entered into interim consent orders providing for the children to spend time with the husband each week from the conclusion of school on Tuesday until the commencement of school on Thursday and during the school holidays from Tuesday at 1.00 pm until Thursday at 9.00 am. The husband deposed that despite the orders providing for overnight time, the children did not spend overnight time with him.
On 17 June 2013 the divorce of the wife and husband became final.
On 20 January 2014 the children stayed overnight with the husband. That was the last time prior to the hearing, that the children spent overnight time with the husband.
In October 2014 the husband ceased paying the premiums on the private health insurance policy which had since separation covered the husband, wife and children at a cost of $3,400 per year. At the time of the hearing the husband was paying a contribution of approximately $700 every six months. That was his estimate of the children’s share of private health insurance cost.
On 28 April 2015 the husband saw the children for 30 minutes at a McDonalds restaurant. The husband deposed that this was the last time he saw the children prior to the hearing.
On 23 November 2015, being the first day of the hearing, the parties resolved the financial issues involving the second respondent. Relevantly those orders provided as follows:
….
3.By consent, orders are made in the terms of the document titled “Consent Order” (Exhibit A dated 23 November 2015), as set out hereunder:
NOTATIONS:
1.For the purpose of these Orders the property shall be [B Street, Suburb C].
2.For the purpose of these Orders the capital sum is $2,200,000 subject to Orders 12 – 15.
3.The nominated valuer shall be [Mr P].
Orders
4.On the basis that the husband and the wife agree that the second respondent’s share of the property is 20 per cent of the current market value, exclusive of the mortgage registered on the title which shall be the responsibility of the husband and the wife, in such proportions as may be determined by the Court.
5.deleted
Option – Husband to purchase the property but fails to proceed with the purchase – Or an order for sale Second respondent’s right to purchase
6.In the event that the husband secures an Order to retain the property but cannot raise the necessary finance to do so, or for some other reason shall neglect or refuse to comply with the Orders in respect of retaining the property and making the payment to the wife then the following provisions shall apply.
7.That the Second Respondent shall be entitled to purchase the interest of the Applicant Wife; and of the husband or part thereof of the husband’s entitlement as determined by the Court; in the property.
8.The Second Respondent shall within 14 days of the husband’s default, advise the applicant in writing if he does not intend to retain/purchase the property.
9.In the event that the preceding provision applies, the Second Respondent shall within 8 weeks of the date of default by the husband of payment as required by any preceding Order to purchase shall pay to the Applicant and husband the capital sum in such respective portions as the Court may determine.
10.Upon payment the Applicant and husband shall transfer to the Second Respondent all of their right, title and interest at law and in equity in the subject property or part thereof as the case may be.
11.For the purpose of these Orders, “the capital sum” shall be 80 per cent of the value of the property subject to the following:
12.The Applicant and First Respondent shall be solely responsible to deduct from their share any monies due in respect of the mortgage secured on title including but not limited to all mortgage repayments, discharge of mortgage, related costs, fees and charges and any other expense of whatsoever nature or kind related to the mortgage secured on the property.
13.deleted
14.Excluding utilities, all other outgoings of the property calculated to the date of transfer or sale of the property as the case may be, shall be apportioned as to the Second Respondent 20 per cent as to the Applicant and First Respondent 80 per cent including but not limited to council and water rates, insurances, levies, land tax and any other outgoings. Note that the Applicant does not concede she has any responsibility for such outgoings.
15.That the parties shall be responsible for the payment of their own utilities being telephone and electricity.
16.That should the 2^nd Respondent fail to purchase the interest of the parties in accordance with the preceding Orders then the property is to be sold.
17.The agent acting in respect of the sale for all parties shall be [D Agents] or such other Agent as the parties agree and the agent’s fees and commission including costs of sale and any auction expenses shall be apportioned as to the Second Respondent 20 per cent and as to the Applicant and First Respondent 80 per cent in such manner as may be directed by the Court between them.
18.The solicitor acting in respect of the sale for all parties shall be as nominated by [D Agents] or as agreed by the parties and the parties shall meet the costs of the solicitor’s fees and disbursements as to the Second Respondent 20 per cent and as to the Applicant and First Respondent 80 per cent in such manner as may be directed by the Court between them, provided however in the event that there are fees incurred due to a dispute between the husband and the wife then they shall be solely responsible for that expense.
19.The parties shall follow the written advice of the Agent as to sale by private treaty or auction.
19.1In the event that the property is listed for sale by private treaty and fails to sell after six (6) months from the date of listing, then the parties shall do all acts, sign all documents and give all consents necessary to affect a sale of the said property by auction or as may be recommended by the selling agent.
20.In the event that the property is listed for auction, the parties shall co-operate with all reasonable directions of the listing agent and/or the auctioneer and shall attend to provide instructions to the auctioneer.
21.In the event that there is any dispute as to a listing price, sale price, auction or any other matter relating to the manner in which the property is sold or the price for which the property should be sold, such issue shall be determined by the nominated valuer. The parties shall be bound by his determination and shall meet the costs of the appointment proportionately to their share.
22.In the event that the property is sold in accordance with these Orders, then the proceeds of sale shall be distributed:
As to the Second Respondent 20 per cent and
As to the Applicant and First Respondent 80 per cent in such manner as may be directed or Ordered by the Court
Subject to the deductions as set out in paragraphs 12 – 15, 17 & 18 hereof.
23.In the event that either party should neglect or refuse to sign any document or give any consent necessary to give effect to these Orders, then the Registrar of the Court shall and is hereby empowered pursuant to Section 106A of the Act to sign such document and give such consent on behalf of the defaulting party. Such default to be proved by Affidavit. It shall be sufficient default in the event that any document forwarded by pre-paid post to the recipient is not received back executed within seven (7) days of being first sent.
24.That there be liberty to restore the matter to the list to all parties on fourteen (14) days’ notice to the other parties and to the Court in relation to any matters relating to the implementation of the Orders.
Ultimately the wife and husband also resolved their parenting dispute and on 27 November 2015, orders were made, including parenting orders and orders about the ICL’s costs, in terms agreed by the wife, husband and the ICL, as follows:
1.By consent, orders and notations are made in the terms of the document titled “Minute Of Consent Order” (Exhibit B), as set out hereunder:

1.That all previous orders in relation to the children [G] born … 2003 and [H] born … 2004 (“the children”) be discharged.
2.That other than as provided for in these Orders the Mother [Ms Steen] (“the Mother”) and the Father [Mr Steen] (“the Father”) have shared parental responsibility for the children.
3.That other than as provided for in these Orders, the Mother have sole responsibility for making decisions in relation to the children concerning the health of the children.
Names
4.That the children continue to be known by their current names [G] and [H].
Live with and Spending Time
5.Unless otherwise provided for in these Orders the children are to live with the Mother.
6.The children are to spend time with the Father as agreed between the parties and failing agreement as follows:

I)Stage One:

Commencing the first Tuesday in the first week of Term 1, 2016 and for a period of 12 consecutive weeks as follows:

a)Each Tuesday if it is a school day from after school until 8.00pm and if it is not a school day from 9.00am until 4.00pm.
b)The Father’s consecutive week periods will re-commence if he is unable or unwilling to exercise his time in accordance with Order 6(I)(a) above except the Father’s dates as annexed to these Orders.
…
e)The Mother is restrained from communicating with the children during the Father’s time as set out in Order 6(I)(a).

II)Stage Two:

Commencing after the Father has completed Stage One (Order 6(I)) with the children in accordance with Order 6(I)(a) above for a period of 12 weeks as follows:

a)Each Tuesday if it is a school day from after school until 8.00pm and if it is not a school day from 9.00am until 4.00pm.
b)Each alternate Wednesday beginning the first Wednesday after the conclusion of the stage if it is a school day from after school until 8.00pm and if it is not a school day from 9.00am until 4.00pm.
c)The Father’s consecutive week periods will re-commence if he is unable or unwilling to exercise his time in accordance with Order 6(II)(a) above except the Father’s dates as annexed to these Orders.
….
e)The Mother is restrained from communicating with the children during the Father’s time in this stage.

III)Stage Three:

Commencing after the Father has completed Stage Two (Order 6(II)) with the children in accordance with Order 6(II)(a) above for a period of 12 weeks as follows:

a)Each alternate Tuesday if it is a school day from after school until 8.00pm and if it is not a school day from 9.00am until 4.00pm.
b)Each alternate Tuesday if it is a school day from after school until the commencement of school on Wednesday and if it is not a school period from 9.00am Tuesday until 8.00pm Wednesday.
c)The Father’s consecutive week periods will re-commence if he is unable or unwilling to exercise his time in accordance with Order 6(III)(a) & (b) above.
…
f)The Mother is restrained from initiating communication with the children during the Father’s time as set out in Order 6(III)(a) & (b) except that the Mother shall not communicate anything to the children to discourage the children from remaining with the Father or encourage the children to return to the Mother.

IV)Stage Four:

Commencing after the Father has spent 12 consecutive periods of time with the children in accordance with Order 6(III)(a) & (b) as follows:

a)During school terms each alternate Tuesday from after school until 8.00pm.
b)During school terms each alternate Tuesday from after school and concluding at the commencement of school on Thursday. The first of such weeks shall be the second week after the commencement of this stage and continue in alternate weeks thereafter.
c)During school holiday periods for half of the April, July and September school holidays, such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods. Save in circumstances [G] has [a competition] in which case the Fathers time shall occur in the other half.

d)For two weeks of the Christmas school holiday period such weeks to be agreed between the parties and in the absence of agreement the last two weeks of the school holiday period concluding on the last Sunday of the school holidays.
e)For the purpose of these Orders the school term and Christmas school holidays are deemed to commence at 9am on the first day after the school term ceases and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period.
f)In the event that the children are with the Mother during the first half of the Christmas school holiday period, the Father will spend time with the children from 12 noon on Christmas Eve until 9.00pm and, the Mother shall organise their collection from the Fathers house.
g)From 9.00am until 4.00pm Father’s Day.
…
i)Such other time as may be agreed between the parties.

6B.The Father’s time in Stages One to Two is conditional upon the Father being personally available to care for the children.
6C.The Father’s time in Stage One is conditional on either [Mr J Steen] or [Ms Q] being present during the children’s time with the Father. In the event that both persons are unavailable, another person may be agreed upon between the parents. The Father’s stage times shall not be reset in the event that these persons are unavailable or that no person can be agreed but the time forgone shall be spent by extending that stage.
Change Overs
7.That for the purposes of spending time with the children, the Father will collect the children from the children’s school if it is a school day or McDonald’s Restaurant at [Suburb R] if it is not a school day at the commencement of his time with the children and will return the children to school or if it is not a school day to the McDonald’s Restaurant [Suburb R] to the Mother or her delegate at the conclusion of his time with the children unless otherwise agreed and the Mother or her delegate will deliver the children to school or the McDonalds Restaurant at [Suburb R] at the commencement of the Father’s time and collect the children from the McDonalds Restaurant at [Suburb R] when necessary at the conclusion of the Father’s time.
Schooling
8.That unless the Mother and the Father consent in writing (or unless otherwise ordered by a Court) the children shall each continue to attend their current school being [S School] until the conclusion of their secondary education, provided that the Father continues to pay their school fees.
9.That each of the Mother and the Father authorise any school to provide to both the Father and to the Mother: -

a.Copies of all reports of the children to both the Mother and the Father.
b.Copies of Newsletters and announcements of all school activities or other material about the education of the children to both the Mother and the Father.
c.Copies of all order forms for school photographs.

10.That each of the Mother and the Father authorise staff members at any school within seven (7) days of either of the children enrolment to discuss that child’s progress with that parent.
11.A copy of these Orders will be sufficient authority for the parties:

a.To contact the schools attended by the children from time to time, for the purpose of speaking to the teachers about the academic and sporting progress of either child.
b.To contact the schools attended by the children from time to time, for the purpose of obtaining School Reports, Notices and Photographs relevant to either child.

Medical
12.That in respect of Order (3) above, other than in an emergency, before any appointment is made for either child to attend any medical practitioner, dental practitioner or other health professional (including child psychologist), other than for everyday childhood illnesses:

(a)The Mother advise the Father by email transmission or text messages of:

(i)Her proposal concerning the medical, dental or other health professional treatment;
(ii)The name of the proposed person; and
(iii)What professional information or advice she has received;

(b)If the Father wishes to comment on the Mother’s proposal, he shall within seven (7) days after the date of the Mother’s email transmission, advise the Mother by email transmission (to the email address from which the Mother sent her communication or text message) of his view;
(c)On receipt of any comment or proposal by the Father, the Mother shall give consideration to his views;
(d)On receipt of the Father’s comments, the Mother shall make a decision and electronically advise the Father of the outcome immediately after making that decision (but in any event no later than seven (7) days after the date of the Father’s email or text message); AND
(e)If the Father does not electronically respond as provided in 12(c) above, the Mother shall be entitled to presume that the Father does not wish to be involved in that decision and the Mother may decide the issue AND will then immediately notify the Father electronically advise of that decision.

13.That during any period during when either child is with the Father, in the event that either child is hospitalised or receives medical attention, the Father shall notify the Mother as soon as practicable (and in any event within two (2) hours) after that child’s first contact with either the medical practitioner, medical centre or hospital, AND provide the Mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the child.
14.That during any period when either child is with the Mother, in the event that either child is hospitalised or receives medical attention, the Mother shall notify the Father as soon as practicable (and in any event within two (2) hours) after that child’s first contact with either the medical practitioner, medical centre or hospital, AND provide the Father with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the child.
15.That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:

a.Any medical problems or illness suffered by either child while in the care of the Father;
b.Any prescribed medication given to either child while in the care of the Father.

16.That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:

a.Any medical problems or illness suffered by either child while in the care of the Mother;
b.Any prescribed medication given to either child while in the care of the Mother.

17.That during any period that either child becomes ill then that parent they are then with shall be responsible to seek appropriate medical treatment for the child and inform the parent the name of the Medical Centre the child received medical treatment from.
18.Either parent is authorised and may seek information about either child’s treatment from the treating medical centre in accordance with Order 17 above.
Medical Authorisation
19.A copy of these Orders will be sufficient authority for either parent to contact the treating Doctors and Consultants for either child for the purpose of obtaining relevant information, treatment plans or prognosis for either child.
Attending Sporting fixtures and School Events
20. Until the commencement of “Stage Three” the parent who is caring for the children will attend events involving the children unless invited by the parent caring for the children which include:

i.Sporting fixtures;
ii.Extra curricula activities that allow for parental attendance;

And the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.

21Unless otherwise provided for in these orders the parent who is not caring for the children in accordance with Order 20 above is restrained from attending such events as set out in Order 20 above and will do their best endeavours to ensure that parent’s family and friends do not attend such events until the commencement of “Stage Three.”
22.Unless otherwise provided for in these orders at the commencement of “Stage Three” above both parents are entitled to attend events involving the children which include:

i)Sporting fixtures;
ii)Extra curricula activities that allow for parental attendance;
iii)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

And the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.

23.That the children have the following parental communication;

i.Telephone conversation with the Father as the children may request and the Mother will facilitate the making of such telephone calls.
ii.The Father may communicate with the children by email.
iii.The Father is permitted to send gifts and letter to the children by mail and the Mother will ensure such gifts, mail and letters are delivered to the children.

24.That each party be restrained from physically disciplining the children.
25.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
26.That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable), email addresses and advised the other party of any changes to these details within seven days of such change occurring.
27.The parties within 60 days of the making of these orders will do all things necessary to engage a family therapist as agreed between the parties and failing agreement as recommended by [Dr T] in the [Suburb V] area but not [Dr U] to assist them in their relationship between each other and the children.
28.In accordance with Order 27 above each party must:

i)Contact the family therapist within seven (7) days after his or her appointment to arrange an appointment for assessment.
ii)Attend the assessment.
iii)Comply with any appointment made by the family therapist.
iv)Comply with all reasonable rules of family therapist.
v)Comply with all reasonable requests or directions of the staff of the family therapist
vi)Ensure the children attend any appointments if they are in that parties care.
vii)Comply with any recommendations made by the family therapist.
viii)Do their best endeavours to ensure the children comply with any recommendations made by the family therapist.

29.The Father shall pay the fees nominated by family therapist for the provision of its service on the condition that the Mother do all things necessary to attempt to obtain mental health plans for the children and or the Mother in an effort to reduce therapy fees and confirm in writing her attempt
30.The parties will communicate with each other by email or text message at first instance unless in the case of emergency as the circumstances require.
Overseas Travel
31.Each parent is at liberty to remove the children from the jurisdiction of Australia provided that:

a)21 days notice and a written itinerary is provided to the other parent;
b)such time overseas occurs within that parents usual spend time period unless specific written consent is received by the other parent.

NOTATIONS
1.It is noted that the Father from time to time will attend sporting fixtures and activities that the children maybe attending due to his employment.
2.The independent children’s lawyer will explain these orders to the children.
3.The Father shall use his best endeavour to ensure that he does not organise or conduct work or competitions during Stages One - Three noting however that a list of previously organised commitments are attached to these orders and that these commitments shall not require his time with each stage to be reset, and nor shall illness require each stage to be reset provided that the Father has a medical certificate as to why he cannot exercise time.
4.That during Stages One, Two and Three the Father is restrained form taking the children away on trips which involve the Father either working or competing.
5.The evidence of [Dr T], the Court appointed Expert is that it is very likely that the children will react to these orders and may express this by poor behaviour and reluctance to see their Father. [Dr T] has expressed that the parents should anticipate some of these issues arising in the implementation of these orders.

ANNEXURE A
FEBRUARY 2016
5, 6, 7, 13, 14, 19, 20, 21, 25, 26, 27, 28 FEBRUARY 2016
MARCH 2016
4, 5, 6, 11, 17 TO 30 MARCH INCLUSIVE 2016
APRIL 2016
2, 3, 9, 10 15 TO 24 APRIL (INCLUSIVE), 29, 30 APRIL 2016
MAY 2016
1, 7, 8, 15, 21 AND 22 MAY 2016
JUNE 2016
5, 11, 12, 13, 19 JUNE 2016.

2.That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3.By consent, orders are made in the terms of the document titled “Minutes Of Orders Regarding Costs Of ICL” (Exhibit A dated 27 November 2015), as set out hereunder:

1.That the Father [Mr Steen] (“the Father”) pay to Legal Aid NSW an amount of $5,725.25 within two (2) months of the date of these Orders.
2.That the Mother [Ms Steen] (“the Mother”) pay to Legal Aid NSW an amount of $7,375.25 within two (2) months of the date of these Orders.
Notation
A.The Father and Mother are paying these amounts for the provision of an Independent Children’s Lawyer in this matter.
B.The Father has already paid an amount of $1,650.00 to Legal Aid NSW for the provision of an Independent Children’s Lawyer in this matter.

4.Judgment is reserved.

The Law

The Approach In Proceedings Under Section 79

In the context of these proceedings, s 79 of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
FAMILY LAW ACT 1975 - SECTION 79
Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
….
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i)either or both of the parties to the marriage; …
….
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
….
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
In Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 the Full Court said:
39.The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
In Hickey the Court was not asked to address the preliminary aspect of the requirement created by s 79(2) as to whether there should be any order at all. Similarly, the proceedings before me do not involve any controversy about that issue. As was observed in Stanford v Stanford (2012) 247 CLR 108 that preliminary, just and equitable requirement, is often readily satisfied. Here, the marriage of the husband and wife involved 10 years of cohabitation and their contributions spanned more than 15 years. The relationship of the husband and wife has broken down and they live apart. They both invoked s 79 of the Act. I note the exhortation in s 81 to “as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”. Orders are needed in relation to the Suburb C property to recognise the wife’s claims. Orders are also required to address the interest of the second respondent in the Suburb C property. It is just and equitable that the husband and wife have relief under s 79.

I turn to the task of identifying orders that will alter the interests of the husband and wife in property in a just and equitable way. There is no mention of steps or stages in s 79, let alone of the sequence set out in a) – d) below. However, I will address the following matters:
a)Make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing;
b)Identify and assess the contributions of the husband and wife within the meaning of ss 79(4)(a), (b) and (c) and determine their contribution based entitlements, expressed as a percentage of the net value of the property of the parties;
c)Identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the husband and wife; and
d)Consider the effect of those findings and determinations and resolve what order is just and equitable in all the circumstances of the case.

The property of the parties

A joint balance sheet[3] was settled by the parties and provided to my chambers under cover of an email dated 12 April 2016. That balance sheet recorded agreements about several issues that were in dispute at the time of final oral submissions on the last day of the trial. The joint balance sheet is as follows:
[3] Exhibit 14

Assets

Owner		Description	Wife’s value	Husband’s value	Second Respondent’s value
1	Joint	B Street, Suburb C (80 per cent owned by the husband and wife)	2,200,000	2,200,000	$550,000
2	H	Steen Pty Ltd	0	0
3	H	Westpac Bank account …	7,645	7,645
4	H	Westpac Bank account …	0	0
5	H	Westpac Bank account …	56	56
6	H	Cash on hand	200	200
7	H	Plant & equipment & office equipment	10,000	10,000
8	H	4WD 1	22,500	22,500
9	H	Trailer/Van and trailer	150,000	150,000
10	H	50 per cent share in Livestock	55,000	55,000
11	H	1/3 share in W Pty Ltd	5,000	5,000
12	H	Westpac Bank account …	456	456
13	W	Westpac Bank account …	216	216
14	W	Westpac Bank account …	94	3,191
15	W	Westpac Bank account …	43	43
16	W	Livestock (50 per cent share)	145,000	290,000
17	W	Livestock	18,000	18,000
18	W	Livestock	0	22,500
19	W	Livestock	0	2,600
20	W	Livestock	0	2,000
21	W	Gold Krugerand	750	750
22	W	Bicycle	400	400
23	W	Equipment	8,135	8,135
24	W	Jewellery	1,000	1,000
25	W	Quad bike	5,000	5,000
26	W	4WD 2	25,000	25,000
27	W	Trailer	14,000	14,000
28	W	Truck (new) and purchased post separation	44,000	44,000
29	H	Furniture	5,000	5,000
30	W	Furniture	1,000	1,000
31	W	Family Tax Benefit, earned during the relationship and received after	0	16,875
32	W	Funds disbursed by the Wife during the relationship	0	100,000
Total		2,718,495[4]	3,010,567	550,000

[4] In the agreed balance sheet the wife’s column was totalled at $2,735,370 but the figure in the above table is the correct total.

Liabilities

Owner		Description	Wife’s Value	Husband’s Value
33	Joint	Westpac home loan …	545,573	545,573
34	H	Westpac Visa …	NK	E4,699
35	H	Westpac Mastercard …	0	0
36	W	Westpac Personal Flexi Loan …	23,600	23,600
Total		569,173	573,872

Superannuation

Owner		Description		Wife’s value	Husband’s value
37	H	MLC Superannuation (Masterkey) …	Accumulation interest	40,661	40,661
38	H	Prime Super	Accumulation interest	11,452	11,452
39	W	Ausfund	Accumulation interest	647	647
40	W	Prime Super	Accumulation interest	3,081	3,081
Total		55,841	55,841

financial resources

Owner		Description	Wife’s value	Husband’s value
41	W	Westpac term deposit … atf H	13,758	e13,758
42	W	Westpac term deposit … atf G	13,758	e13,758
43	W	Interest in Suburb O (registered in the Wife’s parents’ names)	NIL	NK
Total		27,516	27,516

As to the issues about the balance sheet:

Assets

Item 1.

I note that it is agreed that the Suburb C property has a value of $2,750,000 and that the property is owned as to 20 per cent by the second respondent and as to 80 per cent by the husband and wife. It is agreed that the value of $2,200,000 represents the interest of the husband and wife in the property and is therefore the value of the interest available for settlement between them.

Item 2.

I note that it is agreed that the value of SPL is reflected in items 3 to 10, inclusive and therefore no additional value is required at item 2.

Item 14.

In the wife’s Financial Statement sworn 20 November 2015 the balance of this Westpac account is claimed to be $94. The husband claims that the balance is $3,191. I can find no reference to this issue in the oral evidence of the parties nor is a copy of a statement of the account in evidence. The issue is not addressed in the written submissions made in the proceedings. The notes to the agreed balance sheet are:
Husband: Statements provided up to May 2015 only. Current statements not disclosed. The May statement shows an amount of $3,000 being withdrawn from the account but no explanation is provided as to why. That amount has therefore been left in the account.
Wife: As at May 2015.
Those comments are unintelligible and of no practical assistance.
In oral submissions the husband’s counsel submitted that the figure contended for by the husband was the figure on the most recent bank statement dated May 2015 and offered to tender the document if it was required. I do not have a recollection of any response to that invitation on behalf of the wife or at all, in relation to this item.
It was asserted, without complaint, that the most up to date bank statement (May 2015) put the account at $3,191 and the tender of that statement was offered and not taken up by the wife. I will adopt that value.

Item 16.

In relation to the livestock, there is an agreed value at $290,000 based on the updated valuation[5]. The controversy relates to the ownership of livestock. The contention of the wife is that it is jointly owned by herself and her mother. The wife relied on a Certificate of Registration[6] which is consistent with that proposition.
[5] Exhibit 13
[6] Exhibit 10
The livestock was part of the breeding program and remained at the Suburb C property during the cohabitation of the husband and wife. It is common ground that some of the expenses associated with livestock were met by SPL. The wife strongly rejected the proposition that all of its expenses were met from the business. In particular she said that her parents met costs and the veterinary bills for the livestock.
In relation to the issue of ownership of livestock, the contention made during oral submissions in the husband’s case was to the effect that a Certificate of Registration does not establish ownership. There was no concession about the correctness of that contention. I asked learned counsel for the husband: “how do you establish the ownership?” and I was offered no answer to that question, let alone any evidence on the topic. On the other hand there was no evidence from the wife’s mother about this issue and perhaps understandably, she was asked no questions about it in cross-examination. No real effort was made to put the Court in a position to make a probative finding on this issue.
The certificate of registration indicates that the livestock is jointly owned by the wife and her mother. It was put to the wife during cross-examination that the livestock was only registered after separation. She rejected that proposition, saying that the 2012 endorsement on the certificate related to a change. The Certificate supports the wife’s testimony. It is dated 19 January 2009 but bears an endorsement.
There is no probative evidence supporting the husband’s contention that the wife is the sole owner of this livestock. If he wants the Court to accept that the certifying body cannot certify ownership then he would presumably accept that he is not able to certify ownership. The wife concedes that she has a one half interest and for what it is worth, a Certificate of Registration from the certifying body, supports that position. I will include this livestock in the balance sheet as to a one half interest, being $145,000.

Item 18.

The livestock at Item 18 is owned by G. The husband contends that it should be included in the balance sheet as an asset of the wife as it was purchased with the wife’s funds or joint funds. The submission on behalf of the wife is that this should be excluded from the balance sheet as an asset of G, that there is no evidence before the Court of the source of funds used to purchase and that evidence could be called in the wife’s case to demonstrate that it was not purchased with joint funds. I could not find any evidence about this in the evidence in chief of the wife and husband nor in my notes from cross examination. Noting the contention made in his case about the import of the owners’ details on such a certificate, it was conceded on behalf of the husband that a registration certificate is in evidence showing G as the owner.
There is no evidence that it is owned by the wife or that it was purchased with joint funds and there is evidence consistent with it being owned by G. The purpose of orders pursuant to s 79 is to change interests in property for the benefit of either or both of the parties to the marriage or a child of the marriage. Even if the livestock was purchased with joint funds, it should remain with G and no adjustment for it, should be made between husband and wife. Were a different approach to be taken, then every gift made by the husband and wife or either of them to one of the children would be included in the relevant balance sheet.
I will exclude this livestock from the balance sheet.

Item 19.

The husband contends that the livestock at item 19 should be included in the balance sheet as an asset of the wife. He says that the wife conceded that it was bought with joint funds albeit after separation. I refer to the discussion about the evidence of ownership of livestock above.
There is an indication that the livestock is owned by the wife’s mother. There is no evidence establishing that the wife owns this livestock. I will omit the livestock from the balance sheet.

Item 20.

The husband contends that the livestock at Item 10 should be included in the balance sheet as an asset of the wife. He says that the wife conceded that it was bought with joint funds and for $2,000. The wife contends that it is owned by her niece.
There is no dispute about the wife having bought this livestock. In the absence of evidence to the contrary, it was purchased with matrimonial funds. The wife says she gave it to her niece. On that basis the value of the livestock should be brought to account as if it were an asset of the wife. I will include the value of the livestock in the balance sheet.

Item 31.

The husband contends that the balance sheet should include an asset in the form of two backdated lump sum payments of family tax benefits referable to the period of cohabitation but paid to the wife after separation. The amount claimed is $16,875.
There is no evidence that the wife retains those amounts. The task of the Court is not to change interests in property that has been held by the parties from time to time. It does not require an audit of matrimonial finances nor does it usually require an analysis of the use and application of funds by the parties to a marriage. The Court is to identify the current assets, make findings about their value and change interests in them. Add-backs, if that be the character of this claim, are the exception rather than the rule. I will not include this amount in the balance sheet.

Item 32.

The husband contends that the wife disbursed something of the order of $100,000 of joint funds after separation. The wife opposes any such allowance in the balance sheet.
Again, as with the previous item, the husband’s argument on this issue proceeds on a false premise. I will not include this amount in the balance sheet.

Item 34.

During oral submissions the parties agreed that this item and a related item for the wife would be excluded from the list of relevant liabilities. In each case they represent personal debts incurred since separation. Therefore I assume that the inclusion of this as a disputed item in the latest joint balance sheet is an error.
In any event it is the husband’s evidence that he pays the debt off each month. I will exclude this item from the balance sheet.

Item 43.

It was initially claimed in the husband’s case that the wife has an interest in her parents’ property at Suburb O. Ultimately it was conceded that he could not establish that proposition. The husband contends that the property represents a financial resource for the wife. The wife lives at the property and conceded in cross-examination that she uses the property for her business, that there is no prospect of her being required to move her business away from the property and that one day she expects to purchase the property from her parents. The wife made no financial contribution to the purchase of the property but she did some painting and purchased containers for storage. She pays no rent.
The wife’s mother agreed that the wife can run her business from the Suburb O property indefinitely and that she could buy the property. In the latter regard the wife’s mother said that she, her husband and the wife had spoken about the wife buying the property from them but that it was “just an idea” rather than “a potential goal”.
There is no probative basis for this contention, any more than it could be said that other assets of the wife’s parents, represent such a resource. I will not include this item in the balance sheet.
Therefore I find that the balance sheet is as follows:

Assets

Owner		Description	Value
1	Joint	B Street, Suburb C (as to the 80 per cent interest owned by the parents)	2,200,000
2	H	Steen Pty Ltd -Westpac Bank account …	7,645
3	H	Westpac Bank account …	56
4	H	Cash on hand	200
5	H	Plant & equipment & office equipment	10,000
6	H	4WD 1	22,500
7	H	Trailer /Van	150,000
8	H	50 per cent share in livestock	55,000
9	H	1/3 share in W Pty Ltd	5,000
10	H	Westpac Bank account …	456
11	H	Furniture	5,000
12	W	Westpac Bank account …	216
13	W	Westpac Bank account …	3191
14	W	Westpac Bank account …	43
15	W	Livestock (50 per cent share)	145,000
16	W	Livestock	18,000
17	W	Livestock	2000
18	W	Gold Krugerand	750
19	W	Bicycle	400
20	W	Equipment	8,135
21	W	Jewellery	1,000
22	W	Quad bike	5,000
23	W	4WD 2	25,000
24	W	Trailer	14,000
25	W	Truck (new) and purchased post separation	44,000
26	W	Furniture	1,000
Total		2,723,592

Liabilities

Owner		Description	Value
27	Joint	Westpac home loan …	545,573
28	W	Westpac Personal Flexi Loan …	23,600
Total		569,173

superannuation

Owner		Description		Value
29	H	MLC Superannuation (Masterkey) …	Accumulation interest	40,661
30	H	Prime Super	Accumulation interest	11,452
31	W	Ausfund	Accumulation interest	647
32	W	Prime Super	Accumulation interest	3,081
Total		55,841

financial resources

Owner		Description	Wife’s value
33	W	Westpac term deposit … atf H	13,758
34	W	Westpac term deposit … atf G	13,758
Total		27,516

Net assets

The net assets of the parties have a value of $2,210,260 ($2,723,592 + $55,841 - $569,173). Of that sum $55,841 is in the form of superannuation interests and $2,154,419 is in the form of non-superannuation interests.

Contributions

The obligations placed on the Court by s 79 of the Act call for an assessment of the respective contributions by and on behalf of the husband and wife. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets.[7] There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the husband and wife in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of husband and wife.
[7] In the Marriage of Shewring (1988) FLC 91-926.
As to whether the Court should apply the considerations in s 79(4) to the assets globally or asset by asset, the authorities have it that the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) FLC 91-814; In the Marriage of Norbis (1986) FLC 91-712; In the Marriage of Zyk (1995) FLC 92-644.
In In the Marriage of Coghlan (2005) FLC 93-220 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests at [61] that:
… This approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.
As to the superannuation and non-superannuation interests the husband and wife argued the case on a global basis and I will take the same approach. In relation to superannuation, the potential unfairness of one party holding more assets in the form of superannuation than the other and thereby being denied access to settlement funds for a period of time is ameliorated because the husband has a greater amount of superannuation but he is 64 years of age. Therefore the barriers to the husband accessing his superannuation are less onerous than is the case for the wife who is only 43 years of age.
It was argued on behalf of the husband that his contributions exceeded those of the wife in the proportions 75 per cent : 25 per cent. The argument on behalf of the wife was that her contributions exceeded those of the husband in the proportions 55 per cent : 45 per cent. The main areas of dispute related to the treatment of the injections of funds from the sale of livestock; the introduction of the Suburb C property; and the contributions made through SPL.

Section 79(4)(a) Contributions

Financial contributions to property, both direct and indirect were made by each of the husband and wife.
Initial contributions were made by both the husband and the wife.
At the commencement of cohabitation, the wife owned:
a)A 4wd worth $20,000;
b)A two livestock float valued at less than $10,000;
c)Livestock including:
oLivestock, which it is conceded by the husband, had a value in excess of $170,000;
oLivestock, which the husband estimated to have a value of $20,000;
oLivestock which was sold during the marriage for $15,000;
oLivestock which was sold during the marriage for $15,000;
oLivestock, a broodmare which had been purchased for $5,000; and
oLivestock which had been purchased by the wife two years before marriage.
ØThe livestock was purchased by the wife at a cost of approximately $25,000 and ultimately realised about $630,000. It is not surprising that the argument on behalf of the wife is to the effect that the livestock represents a contribution by her alone, of the order of $630,000. If not the exclusive contribution, the contention for the wife is that hers was the main contribution to the development of the livestock and therefore, to its realised value. It was submitted on behalf of the wife that there is nothing to say that the livestock was not worth something like its eventual sale price at the commencement of the marriage. That is true but it does not permit the finding suggested on behalf of the wife.
ØOn the other hand the husband argued that the initial injection of funds did not amount to $630,000 but represented, of the order of $25,000, being the purchase price of 7,000 Dutch guilders and associated costs.
ØThe husband conceded in cross-examination that the livestock was “something special” and well-bred but he was not asked and did not concede that it was worth $630,000 as at the date of marriage. In fact, although there is evidence of the purchase costs of $25,000 in 1998, there is no evidence of the value of the livestock at the date of marriage.
ØIn my view, as at the date of marriage the livestock had a value of the order of $25,000.
d)equipment.

The wife had a personal loan of $20,219.
The wife says in addition to bringing her business and livestock into the marriage, as outlined below, she initially brought in money from her coaching work. She said that she brought in $10,000 from coaching.
At the commencement of cohabitation the husband owned the following:
a)An 80 per cent share of the Suburb C property. The property was subject to a $615,000 mortgage. $50,000 of the price paid by the second respondent for 20 per cent of the Suburb C property in late 1998 was financed by the vendor (the husband). The husband was unsure and therefore, I am not sure, when the $50,000 was repaid to the husband.
As to the value of the Suburb C property at marriage the contention for the husband is that it was worth about $1,400,000 based on a valuation dated April 2000. Two years before that, it had been valued at $1,200,000. For the wife it is contended that the valuations relied on by the husband were not by single experts, were obtained for another purpose, namely raising finance and could not be tested. On the other hand the wife refers to the husband’s own evidence in cross-examination, that for the purposes of the purchase of a share in the property by the second respondent in November 1998, there was an independent valuation of the property at $1,000,000.
The net effect of this dispute on the net value of the husband’s interest at the commencement of the marriage is that the husband came into the marriage with an interest in the Suburb C property worth between $185,000 and $555,000. This can be explained as follows:
i)at a value at the commencement of the marriage of $1.4 million the husband owned 80 per cent which is equal to $1,120,000 – ($615,000 or $565,000 – depending on when the final $50,000 was paid by the second respondent) means that the husband owned net $505,000 or $555,000; or
ii)at a value at the commencement of the marriage of $1 million the husband owned 80 per cent which is equal to $800,000 – ($615,000 or $565,000) means that the husband owned net $185,000 or $235,000.
b)SPL of which he was the sole shareholder and director. The company was established by the husband in 1992. At the commencement of cohabitation SPL owned:
a) a truck which was sold in December 2009 for $29,401.50;
b)equipment;
c)livestock including:
oLivestock purchased for approximately $50,000 in or around 1999 and sold for a loss in or around 2003;
oLivestock that was sold shortly after marriage for $26,000;
oLivestock which was sold in or around 2003 for $25,000;
oA one third share in livestock which was sold in 2001 for a total of $120,000. The husband received one third of the sale proceeds;
oA one third share in livestock which was sold in 2003 for a total of $150,000. The husband received one third of the sale proceeds; and
oA one half share in livestock which was sold in 2001. The husband received $20,000 for his share.
c)a one third interest in the W Pty Ltd which had a net value of approximately $33,081; and
d)a vehicle, furnishings, superannuation and some cash at bank.
He said he also owned other items including a trailer. Consistent with the approach taken to SPL in allocating various items of livestock equipment to the ownership of the company, I take it that the trailer was an asset of the business.
It was argued on behalf of the wife that the husband’s initial contribution in the form of SPL should be treated as having no value. She said that she brought her business into the marriage and merged it with the husband’s business which assisted in the generation of income. Each of the husband and wife brought a business into the marriage. In my view the husband’s introduction of SPL to the marriage should be seen as a contribution of greater value than that by the wife in the form of her business. On any view SPL was a more substantial business than that of the wife. The wife’s business was turning over $100,000 per annum. On the other hand, not only was SPL the vehicle for the husband’s income, it also serviced the Suburb C property mortgage, paid the wages of staff and met the other business outgoings.
Taken together, the initial contribution of the husband was significantly greater than that of the wife.

During the marriage

As I understand the husband’s evidence[8], it was his expectation that during the marriage the parties were engaged in a joint enterprise. The income brought to the marriage by the wife through SPL may have been less than that by the husband but the wife had “private clients” and there were injections of funds by way of trust distributions from the wife’s parents over about five years and thereafter further direct advances from them, together with a further advance of $18,000 from an uncle. Although not generating a direct financial return, the wife’s travel and other competition expenses probably added to the prestige of the business and in any event, the husband supported the wife’s involvement in competitions.
[8] Paragraph 364 of the husband’s affidavit
The M livestock ultimately realised a total of about $630,000. The wife sold a half interest in the livestock to Mr N in 2006 for $300,000. On 2 November 2007 the wife sold the M livestock and received $730,984.15 from the sale. The amount of $330,541.04 was paid to Mr N for his 50 per cent share of the net sale proceeds.
In my view, both parties contributed to the increase in value of the M livestock. There is no dispute that for all but the last year prior to its sale, the livestock was situated at the Suburb C property during the marriage. Notwithstanding that fact, there is a dispute between the parties about the extent to which the expenses of the livestock at the Suburb C property were met by the wife and her parents alone or through SPL. The business had an employee who exclusively cared for the wife’s livestock. The husband gave evidence that he assisted with the sale of a share of the livestock to Mr N and with the ultimate sale.
The wife deposed to making a number of specific contributions to SPL, including:
a)On 8 January 2007 she transferred $5,000 to SPL as a loan;
b)On 2 March 2007 she transferred $2,700 to SPL as a loan;
c)On approximately 28 May 2007 she withdrew $206,483.03 from her Westpac One Account and the account was closed. She transferred $100,000 to the housing loan, which was redrawn by the husband to use for SPL. The balance of $106,000 was transferred into the wife’s Max-I Direct Account; and
d)On 22 November 2007 the wife transferred $21,751.80 to SPL as a loan; and
e)On 3 December 2007 she transferred $81,300 to SPL to fund the purchase of a new car for the husband.
It follows that those contributions were made from income or capital, in particular from the proceeds of the part sale in 2006 and the eventual sale in 2007 of the M livestock. As is referred to above, the value of some livestock was lost during the marriage, when the livestock died.
Ultimately the 80 per cent interest of the husband and wife in the Suburb C property has an agreed value of $2,200,000.
In 2010 the wife received $25,000 which was a gift from her uncle. This money was used towards her costs associated with competitions.
After separation the husband has continued to occupy the Suburb C property and to run SPL. He has been responsible for the maintenance of the Suburb C property and the payment of the joint mortgage over the property. Importantly, soon after separation the wife and children moved out of the Suburb C property and they have lived with the wife’s parents since then. In the assessment of contributions the benefits of occupying a matrimonial property are often set off against the outgoings for the property. Typically, one party occupies a jointly owned property and meets the outgoings while the other party has the expense of board or rent for independent accommodation. Here however, the wife has not had to pay rent to her parents. The wife resumed her business from her parents’ property and lives there with the children, at no expense to her.
The husband has paid child support payments, school fees, medical insurance and other expenses for the children since separation.
Each of the parties made financial contributions during the marriage. As is discussed below, the wife made greater contributions as parent and homemaker. That left the husband more time to make financial contributions. The financial contributions made by and on behalf of the husband exceeded those made by and on behalf of the wife, because of an imbalance in their initial financial contributions and because the wife undertook a greater role as parent and homemaker.

Section 79(4)(b) Contributions

This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
Each of the parties made non-financial contributions to SPL but it was the husband’s creation. He brought the business into the marriage.
The wife merged her business into the venture and withdrew it again after separation. By her reputation and the reputation of the livestock she brought to the business, the wife added to the reputation and prestige of SPL. Similarly, through the husband’s international reputation, built over many years, the business already had a prestigious reputation when the wife joined. It is common ground that none of the clients that the wife brought to the business stayed after separation.
The wife became involved in the running of SPL including training clients, customer relations, breeding and the day-to-day running of the business. It was the wife’s evidence that when the husband was away from the property, she took up much of his role in the business. The husband challenged the wife’s evidence about the extent of her involvement in SPL. It is his evidence that SPL was mainly involved in competition and therefore the wife’s involvement in the company was necessarily limited. It is not possible to make a definitive finding about that issue, beyond the agreed facts.
I am satisfied that the husband ran the business. His role took him overseas and he travelled within Australia. The wife undertook bookwork for the business. There were times when both parties were away. For example in 2002 the wife was in Spain for six weeks and the husband joined her for two weeks. In 2006 the wife was at a competition for six weeks and again, the husband joined her for two weeks. When the husband was away and the wife remained at home, she assisted in running the business by signing cheques and she also undertook work that was normally his.
Although greatly assisted by her mother, the wife made the greater contribution as parent and homemaker and that must have taken some time from the business. The wife’s father did some work around the Suburb C property. He mowed lawns and trimmed hedges at the property.
The parties’ brought their respective businesses together at the commencement of cohabitation and then separated their businesses at separation.
The non-financial contributions of the husband were greater than those by and on behalf of the wife.

Section 79(4)(c) Contributions

This provision deals with contributions by the parties to the welfare of the family including contributions in the form of homemaker contributions and contributions to the children of the marriage.
It is agreed that the wife was the primary care giver for the children and that her contributions as parent and homemaker exceeded those of the husband. The husband’s overseas travel during the period of cohabitation, exceeded that of the wife. Indeed, it is likely that his travel away from the Suburb C property, both domestic and international, exceeded that of the wife.
While the wife’s contributions under this provision exceeded those of the husband it is an agreed fact that he did make relevant parenting contributions. He prepared meals for the children, he played with the children including playing soccer, running races and other games right up to the point of separation. The husband entertained the children while driving a mower or tractor and he regularly helped G in her sports activities. At times the husband drove the children to school, helped with their pets and took H to soccer.
When the wife was away the husband had the assistance of the wife’s parents with the children. That said, there is no scope for contributions under this head to be made on behalf of a party. Those contributions can, however, be taken up under s 75(2)(o).
The overwhelming proportion of the parenting role after separation fell to the wife. It would be the husband’s case that he was prevented from performing a greater role and was estranged from the children by the wife but for whatever reason the wife’s contributions exceeded those of the husband for that period.
The wife’s contributions to the welfare of the family exceeded those of the husband.

Conclusion on Contribution

The Court is required to assess or weigh the contributions of the parties. That includes reflecting on the purposes to which particular contributions were applied. There was 10 years of cohabitation and marriage contributions spanned 15 years.
In In the Marriage of Pierce(1999) FLC 92-844, the Full Court was dealing with a challenge to a property settlement judgment in which there was a finding that contributions favoured the husband in the proportions 55 per cent by him and 45 per cent by the wife. The Full Court addressed interpretations of previous judgments which were said to give rise to the concept of discounting early imbalances of contributions. The Full Court said:
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J. at page 10).
29.In the instant case, his Honour identified what he described as the greater initial financial contribution of the husband and his post separation contribution, but, in our view, he failed to properly assess such contributions. The period of cohabitation was ten years. At about the date of the marriage the husband had very significant assets. His Honour found that the husband had assets to the approximate value of $226,000. At the date of the trial, the parties had assets of a net value of $319,190 which included the matrimonial home valued at $260,000 to which the husband had contributed about $200,000 from moneys to which the wife had made no contribution.
30.There is an obligation on a trial judge not only to identify the relevant contributions but also to assess them. In this case his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all other relevant contributions, and seems not to have had regard to the use made by the parties of the husband’s greater initial contribution.
31. The finding and assessment that the contributions of the parties during cohabitation should be regarded as equal was, in our view, open to the trial judge. Given that assessment, we are of the view that in assessing the totality of the contributions of each of the parties as being 55 per cent by the husband and 45 per cent by the wife, his Honour, notwithstanding the observations of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519, on the facts of this case, failed to attach sufficient weight to the greater initial financial contributions of the husband, and to his contributions post separation in caring for the children.
32.Accordingly, we are of the view that, in assessing the respective contributions of the parties from the commencement of cohabitation to the date of hearing as being 55 per cent by the husband and 45 per cent by the wife, the discretion vested in his Honour miscarried and the appeal should thus be allowed.
The Full Court in Pierce went on to re-exercise the discretion under s 79 and found that the contributions favoured the husband 70 per cent compared to 30 per cent by and on behalf of the wife.
There are interesting and different aspects to various specific contributions made by the husband and wife to these proceedings.
For example there are the stark differences between the uses to which two of the wife’s livestock were put. It is agreed that this livestock was a valuable asset at the date of marriage. The husband conceded that it had a value in excess of $170,000. He also conceded that by its presence at the SPL facility, it added to the reputation or prestige of the business. However it died during the marriage and therefore, realised nothing of its monetary value.
That position is to be contrasted with the situation of the M livestock. It arguably had a value two years before marriage of approximately $25,000 (representing a purchase price of 7000 Dutch guilders and purchase costs). Through a sale of a half interest in the livestock on 7 July 2006 and the sale of the livestock by the then co-owners on 2 November 2007, it realised a total of about $630,000. Although brought into the marriage by the wife, the purchase and maintenance of the livestock was to some extent a joint contribution. There is no evidence on the basis of which to satisfactorily fix its value at the date of marriage. The contention for the husband was that it may have retained a value similar to the $25,000 it cost two years before. I have accepted that proposition.
There is an element of the wife’s case that sounds like “what is mine is mine and what is yours is ours”. As I have said, in my view the wife cannot succeed in achieving a finding that the M livestock was a contribution in the sum of $630,000 made solely by her.
It is common ground that funds from the proceeds of the sale of the M livestock, in the sum of at least $490,000 were applied to joint purposes. There is a dispute about the application of the remaining $140,000. In that regard, some funds were applied to the expenses of the wife associated with international competitions. In my view, that was a joint purpose.
During the marriage, the husband continued to run SPL. He said that the company also supported the wife’s livestock including paying for the maintenance of the livestock. The husband said he built and provided resources to the wife to support her. It is common ground that SPL had a full time employee, who worked on the wife’s livestock.
The husband brought the Suburb C property into the marriage and it generated a very significant increase in value. The husband brought a significant livestock assets into the marriage and that initial contribution was retained and used during the marriage.
During the marriage the parties each contributed. Unremarkably, not all of the marriage activities were remunerative and not all of the contributions generated a profit but they were substantially undertaken by agreement. For example, the competitions entered by the parties and particularly by the wife would have involved a net cost to the marriage. Despite the added prestige brought to SPL because of the profile maintained by the parties, an argument could be made that those activities represented a diversion of matrimonial assets and effort away from benefits for the family.

The wife submitted that contributions should be assessed in her favour as 55 per cent to 45 per cent. The husband submitted that contributions should be assessed in his favour 75 per cent to 25 per cent.
I have found that the husband’s initial contributions were greater than those made by and on behalf of the wife. Otherwise, I have found that the parties shared the work of the marriage. The wife’s contributions to the family were greater than those of the husband. However, there is no suggestion that the husband was not otherwise engaged in managing the business while those contributions were made. The husband’s financial and non financial contributions were greater than those by and on behalf of the wife but her contributions as parent and homemaker were greater than those of the husband. The assessment of contributions is not a mathematical exercise and there are many imponderable features of the contributions made by the parties but in my view there was an imbalance in the contributions in favour of the husband. The contributions were made in the proportions 55 per cent by the husband and 45 per cent by and on behalf of the wife.

The other matters in Section 79

Once contributions have been assessed, the other factors in s 79(4) need to be considered. They are as follows:

Section 79(4)(d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the husband and wife. There is no indication that any particular order would impact on the capacity of either party to earn an income. The wife has the use of the facilities at the Suburb O property. The agreed format of orders prioritises the retention of the Suburb C property by the husband or the second respondent and in either event, that facility would be available for the operation of SPL.

Section 79(4)(e) - Section 75(2) factors

The most relevant matters in s 75(2) would seem to be paragraphs (a), (b), (c), and (f).

(a) the age and state of health of each of the husband and wife;

The wife is 43 years of age. She sustained some damage to a disc in her back. In 2013 she told Dr T, the single expert in the parenting proceedings, that the problem was managed with physiotherapy and exercise at a hydrotherapy pool. The wife has also suffered from stomach ulcers. As to her mental health, the wife told Dr T that she became extremely stressed and going back to adolescence, had a history of concern about her weight. She told Dr T that she (and the children) had separation anxieties. Presumably of particular relevance to the parenting proceedings she said that if she did not have the children she could not find a reason to go on living. She said that she felt victimised, broken and used by the husband’s treatment of her around the time of separation. There is no evidence about the wife recently receiving formal treatment in relation to those latter issues.
The husband is 64 years of age. He has had a number of injuries, generally sustained from his work. During 2012 the husband sustained an injury to his shoulder. The injury required surgery and four to five months of recovery time. The husband deposed that the injury still causes him pain, and he has been told that it will be symptomatic for the rest of his life. From June 2012, as a result of his injuries the husband ceased the more physical aspects of the business.
In 2013 the husband told Dr T that he had recently had a tear in his groin and needed an arthroscopic procedure.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

According to her Financial Statement, the wife’s income is $1,195 per week made up of salary or wages as a professional athlete in the sum of $750, $114 by way of Family Allowance, $24 as a school kids bonus, $250 per week from the husband for child support and $27 per week in health insurance contributions for the children by the husband. She lives with her parents who, remarkably, she says have no income. Her parents pay an unknown amount towards the wife’s accommodation, food, groceries and utilities. The wife spends $1,170 per week made up of $96 income tax, $72 in health insurance premiums, $34 in car insurance, $8 to register a car, $133 in repayments on a Westpac loan, $7 on Visa card repayments (minimum repayment $31) and $820 on all other expenses. The wife’s evidence about her income makes no sense. Her Financial Statement records that she is neither employed nor self-employed. How then $750 per week could be her “total salary or wages before tax” is a mystery.
She was asked how she arrived at the estimate of $750 per week and said something about her father assisting her with the calculation and something to the effect that he or they added up her gross income and divided it to arrive at a weekly figure. That does not make sense if the wife is self employed because there are no business deductions shown in her list of expenses. The wife says that she has had some work from the X Pty Ltd. She had some work from September 2015 and five to six months of work in 2014. She earned $120 increasing to $150 per 45 minute lesson or $100 for half an hour. On some days she had four to five lessons and at most eight lessons. Otherwise her income comes from training or coaching at the Suburb O property.
The evidence about the wife’s assets and liabilities is set out earlier in these reasons.
On that evidence it is impossible to know whether the wife is fully exercising her earning capacity.
As is referred to above, the evidence about the husband’s income is confusing. He conceded in cross-examination that his income is of the order of $3,000 per week. As I have mentioned earlier in these reasons, that is different to the evidence in his Financial Statement to the effect of receiving $899 by way of salary as a trainer and coach employed by his company, SPL. He spends $3,503 per week including $149 in tax, $740 in mortgage payments, $69 in health insurance, $194 in loan repayments, $1,025 in visa card repayments (minimum payment $89), $426 on expenses for the children including school fees and $900 on other expenses. Notwithstanding that evidence I am not confident that the husband has a weekly shortfall of expenses over income.
The evidence about his assets and liabilities is addressed above.
The husband is 64 years of age. It is likely that he will have fewer years in the paid workforce than the wife, particularly considering his physical injuries. He can no undertake the physical side of the business, but I assume that his occupation as a trainer and coach nevertheless makes other physical demands on him.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The parents signed consent orders during the hearing which are set out in full above and which provide for the children to primarily live with the mother and spend time with the father, with that time to increase in the future.
The wife currently lives with her parents on a rent free basis. Her parents assist her with the care of the children. This allows the wife to work and derive an income. It was argued for the husband that this should offset any adjustment to the wife for the care of the children.

(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

I have set out above, what there is of the evidence in relation to the parties’ expenses.

(f) Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;

The husband has more superannuation than the wife but their superannuation interests are modest.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

The parents travelled overseas and the children have attended fee paying schools. Otherwise, there is no evidence from which findings can reliably be made about the standards of living of the parties.

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

There is no application for maintenance. Nor is there evidence that either party is interested in retraining.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

The range of orders proposed should not adversely impact the capacity of a creditor to recover on a debt.

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

The husband was well established in his career at the time of marriage. The wife was an elite athlete at that time. Her credentials as a trainer may have been enhanced by her association with the husband and SPL.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The wife was unable compete for a period of months after each child was born. Otherwise there is no evidence on this issue.

(l) the need to protect a party who wishes to continue that party's role as a parent;

The wife will bear the main impost of that role but I have referred to the assistance provided by the wife’s parents, with the children.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

I have set out above what there is of that evidence.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

There is a child support assessment and the husband makes and the wife receives those payments.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

The parties agreed that the wife’s mother assisted with the care of the children during the marriage. The wife gave evidence that the maternal grandmother assisted since G was born and that she cared for the children from sometime after 2005.
The husband says that the wife failed to fully disclose her financial position, income, assets or financial resources. The wife’s income position is unclear. However, I am not satisfied that the wife has failed to disclose any significant assets.

(p) the terms of any financial agreement that is binding on the parties.

There was no such agreement.

Section 79(4)(f)

Beyond those referred to above, there are no other relevant orders made under the Act.

Section 79(4)(g)

I have referred to the fact of a child support assessment.

Conclusion

The wife submits that there should be an adjustment in the range of 15 per cent to 20 per cent in her favour. The husband said that there should be no s 75(2) adjustment, however if the Court finds an adjustment is required, it should be no more than five per cent of the pool of assets.
The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
·At 64 years of age, the husband is more than 20 years older than the wife;
·The wife has cost free accommodation for herself and her business into the indefinite future;
·The husband’s income is probably substantially greater than that of the wife but it is likely that his future years of paid employment will be fewer than those of the wife;
·Based on the assessment of contributions as 55 per cent by the husband and 45 per cent by the wife, the husband will receive approximately $221,000 more in net matrimonial assets, than the wife;
·The wife will have the children living with her for a greater proportion of time than the husband and more of the parenting load will fall to her. It will be more than six years before H turns 18. The wife is likely to have assistance with the children from her parents.
It is no part of the function of the non-contribution factors in s 79(4) to even up the financial circumstances of the parties. In my view the relevant factors cancel each other out to a considerable extent. There will be no adjustment from the outcome warranted by contributions alone.

Just and Equitable

The net assets of the husband and wife have a value of $2,210,260 ($2,723,592 + $55,841 - $569,173). Of that sum $55,841 is in the form of superannuation interests and $2,154,419 is in the form of non-superannuation interests.
If the assets are divided in the proportions 55 per cent to the husband 45 per cent to the wife, the husband would receive net assets of the value of about $1,215,643 and the wife, about $994,617.
Of the pool of assets identified by me, the wife has the benefit of and would like to retain:

Owner Description Value

W Westpac Bank account … 216

W Westpac Bank account … 3191

W Westpac Bank account … 43

W Livestock (50 per cent share) 145,000

W Livestock 18,000

W Livestock 2000

W Gold Krugerand 750

W Bicycle 400

W Equipment 8,135

W Jewellery 1,000

W Quad bike 5,000

W 4WD 1 25,000

W Trailer 14,000

W Truck (new) and purchased post separation 44,000

W Furniture 1,000

W Ausfund 647

W Prime Super 3,081

Westpac Personal Flexi Loan 0702 -23,600

Total 247,863

In order to bring her to 45 per cent of the net assets she would need to receive a further $746,754.
That would leave the husband with:

Owner Description Value

Joint B Street, Suburb C (as to the 80 per cent interest owned by the parents) 2,200,000

H Steen Pty Ltd - Westpac Bank account 7,645

H Westpac Bank account … 56

H Cash on hand 200

H Plant & equipment & office equipment 10,000

H 4WD 2 22,500

H Trailer/Van 150,000

H 50 per cent share in livestock 55,000

H 1/3 share in W Pty Ltd 5,000

H Westpac Bank account … 456

H Furniture 5,000

H MLC Superannuation (Masterkey) … 40,661

H Prime Super 11,452

Westpac home loan … -545,573

Payment to the wife -$746,754

Total $1,215,643.00

As to the form of orders, there is the parties’ agreement dated 23 November 2015 reflecting the treatment of the second respondent’s interest in the Suburb C property. I have found that the property settlement of the husband and the wife should be in the proportions 55 per cent to the husband and 45 per cent to the wife. If the husband is able to buy the wife out of the Suburb C property and refinance the mortgage he will be required to pay her $746,754. If he is not able to buy the wife out and refinance the mortgage and the second respondent is willing and able to buy the parties out, he will pay them $2,200,000. Apart from the Suburb C property the other assets and liabilities are already distributed between them in those approximate proportions. That means that for the purposes of the second respondent acquiring the property, from that $2,200,000, the mortgage will be discharged and the remainder divided in the proportions 55 per cent to the husband and 45 per cent to the wife.
In the event that neither the husband nor the second respondent is able to acquire the property, the parties will join in the sale of the property and will meet the adjustments on settlement in accordance with their agreement, 20 per cent of the net proceeds will be paid to the second respondent, the mortgage will be discharged from the remaining proceeds and the balance of the net proceeds will be divided between the husband and the wife in the proportions 55 per cent to the husband and 45 per cent to the wife.
I have drawn a set of orders aiming to incorporate the parties’ agreement about the claims of the second respondent, into my findings about the property settlement between husband and wife. I will give the parties 21 days to bring the matter back in relation to the form of the orders, should that be required.

Conclusion under Section 79

This was a marriage that involved more than 10 years of cohabitation and very significant contributions were made by each of the husband and wife over more than 15 years. They acquired substantial assets and provided a comfortable life for their family. They shared the work of the marriage in different ways but overall the husband’s contributions exceeded those made by and on behalf of the wife in the proportions 55 per cent by the husband and 45 per cent by the wife. No adjustment is justified from a property settlement based on those contributions. In my view such a settlement will reflect a just and equitable division of their property.

I certify that the preceding one hundred and ninety nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 2 June 2016.

Associate:

Date: 2 June 2016

[2016] FamCA 427

2 June 2016

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