Stewart and Stewart - [2008] FMCAfam 850

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEWART & STEWART

[2008] FMCAfam 850

FAMILY LAW – Property – age difference between spouses – income-earning potential – indirect contributions to superannuation – De Angelis considerations.

Family Law Act 1975, Part VIII ss.75 (2), 79, 79 (4)

In the Marriage of De Angelis (2003) 30 Fam LR 304
C and C (2005) FLC ¶93-220
Cohen & Cohen [2008] FamCAFC 54
Hayne & Hayne (1977) FLC ¶90-265
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) ¶93-143
Jarman and Jarman (2006) FLC ¶93-289
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413
PJM & STM (2005) FLC ¶93-242
Milankov & Milankov (2002) FLC ¶93-095
Norbis v Norbis (1986) 161 CLR 513
AJO & GRO (2005) FLC ¶93-218
Spencer v The Commonwealth (1907) 5 CLR 418
Townsend & Townsend [2008] FMCAfam 548
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 242 ALR 383
White & Tulloch v White (1995) 127 FLR 105

Applicant:

MS STEWART

Respondent:

MR STEWART

File Number:

CAC 1039 of 2007

Judgment of:

Neville FM

Hearing dates:

29 May, 11 August 2008

Date of Last Submission:

11 August 2008

Delivered at:

Canberra

Delivered on:

11 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Lessli Strong & Associates

Counsel for the Respondent:

Mr Harris SC

Solicitors for the Respondent:

Mazengarb Barralet Family Lawyers

ORDERS

Within 60 days of the date of these Orders the Husband pay to the Wife’s solicitors for payment out to her the sum of $110,991.
Otherwise than as provided in these orders each party be declared solely entitled to all other property, chattels and financial resources in their possession and control as at the date of these orders.
Each party pay their own costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 1039 of 2007

MS STEWART

Applicant

And

MR STEWART

Respondent

REASONS FOR JUDGMENT

Introduction

The issue for determination in these proceedings may be stated: “in the light of all the circumstances what is the just and equitable order to be made between the parties regarding their competing property claims?” The answer to that question is largely dependent on deciding the respective contributions of the parties to the relationship. Subject to what is said below, “contributions” and, to a more limited extent in relation to the applicant wife, income-earning capacity were, in large measure, the focus during the trial.
The facts of the matter are relatively straight forward and the issues for resolution relatively small and discrete. They centre on contributions to (a) a residence in the Canberra suburb of [D], (b) a residence in [B], Serbia (c) and the respondent’s not insubstantial superannuation, albeit now in the payment phase by way of a pension. These “assets” (using the term broadly) essentially make up the `property pool.’ A less proximate issue in the case relates to an `unquantified’ inheritance that may come Mr Stewart’s way from his elderly Mother, who now lives with him and for whom he now cares. This so-called De Angelis issue will, of course, be addressed in due course.[1]
[1] The relevant authorities here to be considered are White and Tulloch v White (1995) 127 FLR 105, which stands for the proposition that a prospective inheritance is not a financial resource within s.75(2) of the Act; and In the Marriage of De Angelis (2003) 30 Fam LR 304, where the Full Court of the Family Court considered the circumstances under which an inheritance may be considered to be a factor under s.75(2)(o).
Given the limited and circumscribed nature of the assets involved, this may in fact be a case where the Court should at least consider taking an `asset by asset’ approach as sanctioned by the High Court in Norbis v Norbis.[2] No submission was made by either party in this regard. In the event, I do not think the result and consequent orders are affected by which approach is taken, whether it be `asset by asset’ or in terms of an overall pool approach. For the purposes of characterisation, although my focus is primarily on three discrete assets, I have not taken an asset by asset approach.
[2] (1986) 161 CLR 513.
Also straight forward – at least theoretically - is the long-standing judicially sanctioned “four-step” approach to determine applications of this kind that are brought pursuant to s.79 of the Family Law Act 1975 (“the Act”).[3]
[3] There is abundant authority in relation to the judicial prescription to use the “four inter-related steps” approach. See, for example, the Full Court decisions in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) ¶93-143 at p.78,386, and AJO & GRO (2005) FLC ¶93-218 at p.79,619.
For ease of reference, the “four important steps to be taken in determining a property dispute are”:
a)“To identify and value the net property of the parties (usually at the date of trial);
b)to consider the contributions of the parties within paragraphs (a) – (c) of s.79(4);
c)to consider the s.75(2) factors; and
d)to consider whether the order proposed is just and equitable.”[4]
[4] This is the `four-step’ process described in AJO & GRO, at p.79,619.

Facts & Circumstances of the Parties

The parties here are now aged 47 (the applicant wife) and 60 (the respondent husband). They met in September 1995 when Mr Stewart was working at [workplace omitted] in [B]. Mr Stewart proposed to Ms Stewart in March 1996. In May of that year he purchased a house in [D]. Ms Stewart moved to Australia in July 1996, and married

Mr Stewart in May 1997. They separated in May (according to Mr Stewart) or June (according to Ms Stewart) 2007. There are no children of the relationship.
During the course of the modest length marriage there were a number of occasions when the parties lived apart, either because Ms Stewart could not obtain employment at the [workplace omitted] to which

Mr Stewart was attached and or because she was either visiting relatives in [B] or working elsewhere in Europe, such as The Hague. In my view these extended times of separation do not radically affect the resolution of the issues before the Court.
What is relevant, however, is that for approximately half the duration of the marriage, the couple resided in [B] in Ms Stewart’s apartment. During that time, the [D] property was either rented, or for a relatively short period of time, Mr Stewart permitted his son from a previous marriage to reside in the house.
Mr Stewart was a career public servant with the Department of [omitted]. He retired from the Department in 2001. Ms Stewart, who has formal qualifications in [omitted] (to master’s degree level), which has enabled her to teach from time to time, has also worked overseas as a [omitted]. Serbia or its environs is Ms Stewart’s native land.

Orders Sought

In the “Revised Outline of Submissions prepared on behalf of applicant wife” prepared by Mr Stewart's Counsel, Mr Maurice, and dated

8^th August 2008, the Wife seeks that the Husband pay her (through her solicitors) the sum of $237,602. If the amount is not paid within
42 days, Ms Stewart proposes that the Husband sells the [D] property and that she receive the above payment plus interest as per the Federal Magistrates Court Rules 2001.
As an alternative proposal, Ms Stewart seeks that she be paid $196,976 through her solicitors, and that there be a splittable payment from
Mr Stewart’s Commonwealth Superannuation Scheme (the CSS), with the Wife entitled to 7 per cent of this splittable payment.
Lastly, Ms Stewart seeks that the Husband pays her costs of and incidental to the proceedings.
The Respondent Husband, Mr Stewart, in his Response filed 28^th June 2007, seeks that the Wife’s application be dismissed, and that each party retains any assets and liabilities in their name and possession.

Asset Pool

The assets of the parties comprise a few discrete major items. As already indicated, they are the [D] and [B] properties, and primarily

Mr Stewart’s superannuation pension. Both parties are in the fortunate position where there are few liabilities, and those that exist are comparatively small.
Subject to what is said further below, the following summary of assets and liabilities, as provided by Mr Maurice (Counsel for Ms Stewart), is sufficient for current purposes:
Husband Wife
[D] house $552,500 [B] unit $137,290
(mortgage) (22,300)
House contents 3000 House contents Nil
3 x VW cars 16,992
Savings 16,992 Savings 900
Fees paid 9000
Fees in trust 3500
(credit card) (1800)
Superannuation Super 13,079
AGEST 58,025
CSS 527,000
On these figures of Mr Maurice, which (as already indicated) I adopt for the purposes of the discussion, Mr Stewart’s assets total $1,149,587; the total assets of Ms Stewart amount to $151,269.

On these figures, the combined asset pool is $1,300,856 of which

Ms Stewart’s assets constitute, according to Mr Maurice’s calculations, 11.3%.
Some qualification of the above figures is, however, warranted in relation to Mr Stewart’s superannuation pension. Although I comment further below in the light of other authority, some brief observations by Coleman J in PJM & STM[5] are instructive. First, his Honour noted that in assessing contributions, a court should be cognisant of its wide discretion, and at the same time recognise that the exercise of discretion in relation to the determination of contribution entitlements “does not readily permit mathematical precision….”[6] Secondly, following the Full Court’s decision (of which his Honour was part) in C & C (to which I refer below), Coleman J treated the superannuation assets in the proceedings as a second, discrete pool.[7] Thirdly, his Honour also considered whether, on the facts of the case before him, there should be some “balancing up” in relation to the standard of living of each of the parties “which is reasonable in all the circumstances.”[8]
[5] (2005) FLC ¶93-242.
[6] Ibid., at [24]. Similar comments were also made in Hayne & Hayne (1977) FLC ¶90-265 where the Court said (at p.76,415), admittedly in the context of a brief discussion of what is today canvassed in steps 1 and 2 of the “four-step process, : “In matters such as this one cannot approach the problem [of determining the asset pool and assessing contributions] with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.”
[7] Ibid., at [6].
[8] Ibid., at [26].
One further comment should be made about the asset pool in the light of comments seemingly accepted by the Full Court (Bryant CJ, Finn and Coleman JJ) in Jarman & Jarman.[9] There the Court noted the observations of Roberts FM, from whom the appeal was taken, concerning the degree of artificiality in a valuation of a defined benefit superannuation interest.[10] Those observations related to the fact that such an interest does not translate into a capital sum equivalent to the valued amount of the interest. Thus, in this case, the valuation of

Mr Stewart’s superannuation at an amount in excess of $500,000 should not be treated as if there was a capital sum of that amount available for distribution. Indeed, if that figure is taken out of the asset pool, together with the small amount of AGEST superannuation,

Mr Stewart’s non-superannuation pool amounts to $697,072. This leads to a combined non-superannuation asset pool of $716,074.
[9] (2006) FLC 93-289.
[10] Ibid., at [16] & [52].

Contributions & section 79(4)

The [D] Property
: The [D] property was purchased by Mr Stewart shortly before the parties married. It was financed exclusively by him both in terms of capital and the responsibility for the mortgage. Similarly, when a further $30,000 was borrowed in March 1998 to build a garage on the same property, and when in 2002 $80,000 was paid off the mortgage on the property, it was all done by Mr Stewart. All of this was, in large measure, conceded by Ms Stewart in the course of cross-examination. It was certainly clear, and I intend no criticism in saying so, that Ms Stewart had little knowledge of the financial affairs of Mr Stewart and how they were applied to the [D] property.[11] I formally find that there were no direct financial contributions by

Ms Stewart to the [D] property. They were all contributed by

Mr Stewart.
[11] See Transcript (29^th May 2008) pp.8-10 & 15-16.
There is, however, the issue of Ms Stewart’s non-financial contribution to this property for the quite short time she and Mr Stewart lived in the Canberra residence before his posting to Pakistan in July 1999. It overlaps, to some degree, with issues concerning the [B] property.
On her behalf, Mr Stewart's Counsel submitted that the Court should have regard to the following: (a) for approximately 5 years, Mr Stewart lived rent free in Ms Stewart’s [B] apartment during which time the [D] property was rented; (b) during the `[B]’ residency, Ms Stewart’s earnings were applied “to support the parties;” and (c) during the marriage, it was submitted, “the wife was responsible for housework and home maintenance.” I record again that there were no children of the marriage, and thus no parenting or child support issues are in play.
For my part, and subject to what is said below, some allowance should be given to Ms Stewart in relation to the couple’s time living in [B]. It should not be taken however as an unqualified acceptance of the rather bald way in which proposition (a), as set out in the previous paragraph, was put. Clearly at the time it was an instance of a married couple sharing life together in [B]. To describe it as “rent free” accommodation to the husband, after the event, belies the reality at the time. As far as the [D] property is concerned, given the limited joint co-habitation of it by the parties, at best, the indirect contribution by Ms Stewart to it could be described as quite modest.
There should, however, be some allowance to Ms Stewart in relation to her income being used, to some degree at least, for the benefit of the relationship and the household while the couple lived in [B].

Mr Stewart’s evidence suggested that Ms Stewart was almost totally dependent on him for all financial assistance. While this might be true to some degree, to speak in terms approaching absolutes is unhelpful and somewhat unrealistic. The same comments should be applied to Ms Stewart’s claims in relation to “housework and home maintenance.” I accept that there was some sharing of responsibilities, but refrain from making any absolute determination as to the proportion of who did what during the times of co-habitation both in Canberra and in [B]. The evidence is too conflicted to do so with any degree of certainty.
The [B] Property
: The situation regarding the [B] property owned by Ms Stewart is a little more complicated than the situation regarding the [D] property. The issue is not when (1992) and the circumstances under which (gift from her family) Ms Stewart obtained the [B] property. There can be no question that Mr Stewart did not contribute financially to its acquisition. The question at hand relates to

Mr Stewart’s indirect financial and other contributions to this property primarily during the five years, or thereabouts, that he lived with his wife in that unit in [B].
For example, there seems to be no dispute that Mr Stewart bought items for the apartment, such as some white goods, an air conditioner, and that he paid for some security bars. I also accept Mr Stewart’s evidence that, while Ms Stewart applied her earnings while she was employed in Serbia to the benefit of the marriage, he also contributed in the regular purchase of food and that, in large measure, he shared

the household chores and other responsibilities. He was not

cross-examined in relation to his claims that he “paid all phone bills, electricity bills, [and] legal costs incurred when [Ms Stewart] took her neighbours to Court and I also paid for repairs to her flat caused by fire damage two years ago previously. I paid for groceries when we went to the markets, the cost of our entertainment as well as transport costs. … I also paid for all costs when I took her on holidays to Paris, Amsterdam, Croatia and Slovenia. On the occasions when we travelled to Croatia, I paid for her air fares and other travel costs.”[12]
[12] These matters are taken from Mr Stewart’s affidavit affirmed 15^th April 2008, par.29. I also accept Mr Stewart’s version of his alleged multiple medical consultations with the applicant’s “sister.” I consider Ms Stewart’s evidence in this regard, as with much of her evidence more generally, given to some exaggeration so as to bolster her claims against Mr Stewart. I accept Mr Stewart’s evidence that his medical attention was provided overwhelmingly by his treating medical practitioner in Australia and that he very rarely used medical services in Serbia, including those of Ms Stewart’s cousin, not her “sister.”
Mr Stewart also gave evidence that he did most of the cooking; he agreed that, when he was not on assignment (for example in Pakistan where there was staff to attend to many ordinary household tasks, including cooking and cleaning), he did most of the cooking. In the absence of any credible challenge to these and related claims, such as those set out in the previous paragraph, I prefer and accept the evidence of Mr Stewart to that of Ms Stewart.
I also accept that Mr Stewart paid Ms Stewart $1000 per month for her personal expenditure for most of the duration of the marriage. The bank records from the ANZ Bank that constitute Exhibit “G” support his version of events. The provision of limited bank records by

Ms Stewart did not assist her version of events. I accept the account given by Mr Stewart.[13]
[13] Mr Harris, Senior Counsel for Mr Stewart, helpfully provided an `aide-memoire’ which recorded all payments made by Mr Stewart to Ms Stewart from ANZ Bank account no.[omitted] from 30 December 2002 until 27^th February 2007. Clearly the majority of those payments were in the sum of $1000 per month. Records of earlier years were not available from the Bank.
The remaining matter in relation to the [B] property concerns its valuation. The question here is whether the Court should take into account a suggestion or proposal by Mr Z in his valuation, which is annexure “F” to the respondent’s affidavit of 15^th April 2008. In that valuation Mr Z states that the “possible [sale] price is relatively low, because the building in question was built back in 1926, and it has been poorly maintained over the years.” He continued: “… it would be difficult to find a buyer for this apartment, and the purchase price that could be achieved would be unfavourable to the seller. Much better solution is to sell the whole building to a real estate development company that could use the plot to erect a new building in the same place.”
The valuer goes on to say in his report that this option would be problematic because it would require the consent of the owners of the other apartments in the block. Given that there is evidence, albeit not very extensive, that Ms Stewart had taken legal action against one or more of the other unit owners, it might be somewhat hopeful to accept this suggestion of the valuer as anything more than that – namely, just a suggestion. That said, there was some cross-examination and subsequent submissions that acknowledged that (a) there was significant (re)development in the area of the [B] property and (b) notwithstanding disagreement with her neighbours there had been genuine discussions with them regarding (re)development of the entire block of units of which Ms Stewart’s property formed part.[14]
[14] See, for example, the summary of evidence and submissions by Mr Harris, Transcript (11^th August 2008) pp.24 ff.

In such circumstances the Court needs to assess whether the prospect of redevelopment of the [B] property is of such moment as to warrant a discrete consideration on its own, and if this course is pursued, what impact this might have on the overall “just and equitable order” to be made in this case.
In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority,[15] the High Court acknowledged a range of matters relevant to valuation issues that are important considerations in this case, at least at a threshold level and or as a point of principle, accepting of course that the Court there was considering a case of compulsory acquisition. In the joint judgment of Gleeson CJ, Gummow, Hayne, Heydon & Crennan JJ,[16] the Court accepted the comments of McHugh J in Kenny & Good Pty Ltd v MGICA (1992) Ltd[17] as follows:
Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property. In determining that value, there must be attributed to the parties a knowledge of all matters that affect its value. Those matters will include the predicted impact of future events as well as the experience of the past and the rates of return on other investments. As Isaacs J pointed out in Spencer v The Commonwealth:[18]
'We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.’ (emphasis added)
The market for the property is, therefore, assumed to be an efficient market in which buyers and sellers have access to all currently available information that affects the property.
[15] (2008) 242 ALR 383.
[16] Ibid., at [51].
[17] (1999) 199 CLR 413 at p.436 [49] – [50].
[18] (1907) 5 CLR 418 at p.441.
For my part, acknowledging the range of matters noted by McHugh J in Kenny & Good, and accepted by the High Court in Walker Corporation, there are so many variables in play in this matter that to be able to attribute any particular value, or even chance, to the [B] property on the basis of it being sold or redeveloped is nigh on impossible. In such circumstances I propose to ignore the prospect of any future redevelopment of the [B] property for the purposes of these proceedings and proceed solely on the basic valuation provided of the property.
Superannuation:The remaining discrete issue concerns how to treat Mr Stewart’s “superannuation.” At one level, it is something that can or should be considered under s.75(2) of the Act. I will indeed do that. However, it is of some assistance to consider it briefly here in the context of the remarks of the Full Court in C & C,[19] and in the light of the evidence.
[19] (2005) FLC ¶93-220.
I need only note that the majority (Bryant CJ, Finn & Coleman JJ) in C, at [52] and [53], treated superannuation as “another species of asset (in addition to property as defined in s.4(1)) in relation to which orders can be made in proceedings between parties to a marriage.” Their Honours went on the say (at [61] and [62]):
Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. …
The parties’ contributions to all items on that list (including the superannuation interest) would then be assessed on either a global or an asset by asset basis. It might then be necessary in the s 75(2) context to have regard to the parties’ future superannuation entitlements … with consideration then being given to the overall justice and equity of any proposed order.
Naturally, I accept what the Full Court said in C & C. In terms of the evidence of this case, which obviously includes the fact that

Mr Stewart retired in January 2001, at which time he and Ms Stewart had been married for four years, three things I take to be clear.
First, given the shortness of the marriage as at the date of Mr Stewart’s retirement, the age difference between the parties (13 years), and that Mr Stewart joined the CSS scheme in 1967, in my view it is hardly conceivable that Ms Stewart could claim that she contributed much or at all to Mr Stewart’s superannuation. Certainly she cannot claim any direct contribution to his superannuation. Clearly, the overwhelming contributions to superannuation occurred prior to the marriage of the parties. Moreover, for part of the time of Mr Stewart’s posting to Pakistan, rather than live with him Ms Stewart went to The Hague to seek to secure employment. And, as previously indicated, there were no children of the relationship that required any attention, by either party, which could be said to have any impact by way of indirect contribution to Mr Stewart’s superannuation from Ms Stewart. It may also fairly be stated that Mr Stewart would have continued to accumulate his superannuation whether he was married to Ms Stewart or not.
In my view, cohabitation does not automatically translate into entitlement to a spouse’s superannuation especially in short or relatively short marriages. This is particularly so where, as here, it was claimed that Ms Stewart’s indirect contributions were equal to the direct contributions of Mr Stewart to his superannuation. I do not accept such a submission.
Secondly, I accept formally that Mr Stewart no longer has superannuation but rather a pension from his “retirement savings account” with AGEST.
Thirdly, although not directly related to “superannuation”, Mr Stewart’s unchallenged evidence, which is relevant under s.75(2)(b), is that he now works casually on a part-time basis at the [workplace omitted].

He earns approximately $600 per week, at an hourly rate of $22.50, if he works about 30 hours per week. He said that he undertakes this casual work by and large for the social interaction it provides.[20]
[20] Transcript (29^th May 2008) p.49.
For the sake of completeness, I should also note the following in relation to Ms Stewart’s superannuation. To state the obvious, it is of very modest proportions: $11,610. Of this sum Mr Stewart directly contributed $4000. I move to consider the relevant s.75(2) factors.

Section 75(2) Factors

I have previously noted the respective ages of the parties – Mr Stewart is 60; Ms Stewart is 47. Mr Stewart retired from the [workplace omitted] in 2001 and lives on a self-funded pension. He also works casually, part-time, at the [workplace omitted]. Neither party has re-partnered. There are no children of the relationship.
While Mr Stewart gave evidence regarding some health issues (e.g. cholesterol, depression), by and large I accept that there are no substantive health issues for either party that impact on these proceedings.
I accept that Mr Stewart enjoys a more than reasonable self-funded pension and that he has access to some extra income as and when he wishes. That sum, as previously indicated, might be described as a more than handy amount of spending or pin money.
I also accept that although well qualified, given her age and experience in this country, Ms Stewart’s opportunities for employment may not be as advantageous as she would wish. Although seemingly well settled in Australia, and notwithstanding her teaching and linguistic skills, she may not enjoy the range of prospects she may otherwise have anticipated. One consequence of this is that her capacity to expand her financial resources, including superannuation, now and in the future, is somewhat restrained. This is a relevant consideration under s.75(2). All of that said, I do not consider her financial and employment situation to be utterly dire or completely devoid of prospects. While not a young person (broadly understood), Ms Stewart is not elderly. She has, in my view, not unreasonable prospects of employment given her background, qualifications and experience.
Similarly, I do not immediately or necessarily accept, at least without significant qualification, that Ms Stewart would face a more or less prosperous future in Serbia. In my view, that must be significantly speculative. It seems to me that she faces a somewhat uncertain future, in part due to her own actions and in part because, in certain senses and as a consequence of her marriage of modest length, she falls between the two stools of living in Australia for a relatively short time as well as having a long-time residence and history in her native Serbia. In my view, such matters are best left to the discretion to be exercised in determining what is a `just and equitable’ order in all the circumstances of the case. Such a course seems to have been accepted by the Full Court in the recent appeal in Cohen & Cohen.[21]
[21] [2008] FamCAFC 54.
It is convenient here to deal formally with the issue of “a standard of living that in all the circumstances is reasonable.” A number of things can be embraced here, including the `state of the [B] property.’
The parties sought to put rather different perspectives on the state of repair of the [B] property, and for obviously different reasons. Some photographs were tendered to show its state of [dis]repair. For my part, and accepting that Mr Stewart seemed to have a well-developed and doubtless understandable capacity to live in diverse circumstances because of his years in the diplomatic service, nonetheless I find it difficult to accept that the [B] property is as run-down as suggested by Ms Stewart. The fact is that, as a couple, the parties lived in the apartment for five years. This suggests that it is (or at least was) habitable and moderately comfortable. It would be remarkable that a married couple, who might be described (respectfully I hope) as not altogether young, endured living for such a significant period of time in conditions that were, shall we say, less than satisfactory. While the apartment may not be exactly as Mr Stewart described it as “quite a stately old place, with oak and parquet floors and white-painted panel doors. …it was quite nice…”[22] it obviously was reasonably liveable.
[22] Transcript (29^th May 2008) p.69. Mr Stewart conceded (if that be the correct description) that his view was perhaps somewhat “romantic.” Ibid p.70.
The question here, however, relates to whether such an inference about the habitability and general state of repair of the [B] property has, or should have, any formal bearing on the final orders. In my view, it does so only to a quite limited degree. Moreover, I am not sure that anything would be gained, nor was it attempted, to compare the standard of living in the [B] apartment with living in the [D] residence.
I do not consider any other matter under s.75(2) to be relevant in these proceedings. I turn now briefly to consider the De Angelis issue that was raised in the proceedings.

The De Angelis Issue

By this short-hand description I intend to refer to two related things: (a) what, if anything, should be done in relation to the possible, perhaps likely, inheritance by Mr Stewart from his aged Mother’s estate, and (b) how should this issue be treated in the light of the Full Court’s decisions in In the Marriage of De Angelis[23] and White & Tulloch v White.[24]
[23] (2003) 30 Fam LR 304.
[24] (1995) 127 FLR 105. I have already noted that Mr Stewart’s aged Mother now lives with him in order, among other things, so that he can more easily care for her.
In Townsend & Townsend,[25] I said, at [25]:
For my part, I do not propose taking any prospective inheritance into account in these proceedings, principally because the evidence is so limited. As well, in my view, unless there is such an extraordinary sum of money involved, and the circumstances are so significant as to require a court – as a matter of equity and justice, not to mention general taste and common sense - to consider an inheritance, such matters should be left to the affairs of each family and its members. To be making orders under the provisions of the Family Law Act that deal with property as between spouses, where the focus is essentially on spousal contributions of varying and various kinds, making orders on the basis of a possible inheritance borders on the odious, if not the ghoulish. Without intending or wishing any offence at all, a court should give no encouragement – real or imaginary – to circling vultures, benign or otherwise. Fortunately, there are no such beasts in this case.
[25] [2008] FMCAfam 548.
Having due regard to the observations of the Full Court in the two cases cited, I adhere to what I said in Townsend & Townsend and apply it here.

Just & Equitable Order

In Cohen & Cohen, the Full Court upheld a decision of this Court in relation to a short marriage, somewhat shorter than is the case in these proceedings, where one of the parties was from Russia. I need not outline further the details of that case. It is sufficient to note that his Honour, Mowbray FM, awarded the wife in those proceedings 7.5 per cent of the non-superannuation assets. Those assets totalled $436,853. The wife’s award totalled $35,600, of which $10,400 was designated as a maintenance provision. The husband in that case, like here, also had superannuation that was in the payment phase. It was valued at $778,384.
The reasoning and outcome in Cohen, both at first instance and in the result on appeal to the Full Court, is instructive in relation to the orders to be made in this case. To a lesser degree, so too is the decision of Coleman J in PJM & STM where his Honour awarded 15.5% based on contributions, and a further 10% in the wife’s favour under s.75(2) factors which, the Court said “approximates four years of the husband’s pension payments.”[26] In my view, the contributions in PJM & STM were much greater than they are in this case, as were the s.75(2) factors. In any event, it seems to me that these two cases provide what might be described as the broad outer ranges of the orders that might be made in this case.
[26] (2005) FLC ¶93-242 at [29].
By way of summary, and for ease of reference, the combined superannuation pool in this matter totals $598,104, of which Mr Stewart’s superannuation provides $585,025. But as indicated earlier, I do not consider that Ms Stewart contributed either directly or indirectly to it.
The combined net non-superannuation pool, comprised of the [B] property, the [D] property (minus the modest mortgage of $22,300), savings of both parties of $17,082 (the wife’s portion being $900.00), and add-backs in relation to legal fees paid by Mr Stewart of $12,500,[27] and the other much smaller items noted in paragraph [15] of these reasons, totals $716,074.
[27] In relation to the adding back of legal fees, see the Full Court discussions in Milankov & Milankov (2002) FLC ¶93-095, and AJO & GRO (2005) FLC ¶93-218, especially at [30].
Having regard to (a) the ages of the parties, (b) the modest length of their marriage, (c) the financial resources available to them (now and in the future), which clearly favour Mr Stewart but which include, on

Ms Stewart’s side, the [B] apartment, which she should keep and deal with as she otherwise pleases, (d) their state of health, (e) a standard of living that is reasonable in all the circumstances, (f) in Ms Stewart’s case in particular her future, albeit somewhat modest employment prospects, and (g) their respective contributions, which also favour the husband, in my view a just and equitable property order would provide that Ms Stewart should receive 15.5% of the non-superannuation pool, which amounts to $110,991. Otherwise each party should keep their other assets intact. Each party should bear their own costs of the proceedings.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate: Renee Davidson

Date: 11 December 2008