Stuart and Seaton

FAMILY COURT OF AUSTRALIA

STUART & SEATON

[2012] FamCA 936

FAMILY LAW – PROPERTY – Alteration of property interests – application by the husband for spouse maintenance

Family Law Act 1975 (Cth)

Bonnici (1992) FLC ¶92-272
Eliades (1981) FLC ¶91-022
In the Marriage of Best (1993) FLC ¶92-418
In the Marriage of Clauson (1995) FLC ¶92-595

APPLICANT:

Mr Stuart

RESPONDENT:

Ms Seaton

FILE NUMBER:

SYC

2169

2011

DATE DELIVERED:

9 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler, J

HEARING DATE:

16-17 August 2012 and
24 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingstone

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

COUNSEL FOR THE RESPONDENT:

Ms Gillies

SOLICITOR FOR THE RESPONDENT:

Robyn Sexton & Associates Solicitors

Orders

Orders 7, 8 and 9 of the Orders made by consent by Justice Rees on 30 July 2012 are discharged.
Within 42 days of the date of these Orders the husband shall sign all documents and do all things necessary to transfer to the wife his interest in the property known as B Street, Suburb C in the State of New South Wales, Folio Identifier … (“the C Suburb property”) subject to the mortgage to St George Bank Limited and on the following further terms and conditions:
(a)upon settlement of the said transfer the wife is to pay the husband the sum of $192,733.50 by way of final property settlement and
(b)on or before settlement of the said transfer the husband and the wife are to sign all documents and the wife is to pay all monies necessary to cause the loans to St George Bank Ltd secured by way of mortgage on the C Suburb property to be discharged.
In the event the wife does not pay to the husband the sum referred to in Order 2(a) herein, or discharge the loans referred to in Order 2(b) herein, then the parties will do all acts and things necessary to cause the C Suburb property to be sold for the best price reasonably obtainable, and upon settlement of the sale of the home, the parties will do all acts and things to cause the proceeds of sale to be distributed as follows:
(a)in payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale
(b)in reimbursement to either party of any sale costs paid in advance by that party
(c)in adjustments of rates and other outgoings
(d)in discharge of the loans (including payment of break costs incurred as a result of the sale) secured by way of mortgages to St George registered on the title of the home and
(e)in payment to the husband the sum of $192,733.50 and the balance to the wife.
Pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the wife’s entitlement in the superannuation fund known as D Superannuation (account number 0851041-D2-01) the husband shall be entitled to a payment calculated in accordance with the regulations on the specified base amount of $103,974.50 as the splittable payment and that there be a corresponding reduction to the entitlement of the wife that she would have had in the D Superannuation fund but for this Order.
Having been accorded procedural fairness in relation to the making of these orders, Order 4 to 6 of these Orders bind the Trustee of D Superannuation.
The operative time for this Order is the date being four business days from the date of service of these Orders upon the Trustee of D Superannuation.
Other than as herein provided the husband and the wife each be declared the owner at law and in equity of all items of personalty including but not limited to money, proceeds of bank accounts, jewellery, and personal effects presently in their respective possession and control.
Other than as herein provided the husband and the wife each be declared the owner of such superannuation/annuity entitlements, and pension benefits to which each of them is or might become entitled in his or her own right.
Other than as herein provided each of the husband and the wife remain liable for any debts in his or her sole name at the date of the orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.
The husband’s application in relation to spouse maintenance is dismissed.
In the event the husband or the wife refuses or neglects to comply with any of the Orders herein requiring a party to execute a deed or instrument, a Registrar of this Court at its Sydney Registry is appointed pursuant to Section 106A of the Family Law Act to execute in the name of the husband or the wife as the case may be, any deed or instrument necessary to give effect to the Orders herein, or any of them, and to do all acts and things necessary to give validity and operation to the said deed or instrument.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stuart and Seaton 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: SYC 2169 of 2011

Mr Stuart

Applicant

And

Ms Seaton

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are proceedings between the parties to the marriage seeking an alteration of their property interests. The husband also seeks an order that the wife pay him spouse maintenance.
The parties were in a relationship for approximately 19 years and were married for approximately 9 of those years. There are three children of the parties.
There is a dispute between the parties as to when they separated on a final basis. The wife says that separation occurred in April 2009. The husband says it was in June 2010. The wife submits that the evidence does not disclose any fact or circumstance that would make either date of separation significant in terms of making any adjustment or determination as to contributions. The Court agrees with her submission.
The property matter was expedited and accordingly there are parenting proceedings still on foot which have not yet been allocated a hearing date.
The husband is presently unemployed and receives a Disability Support Pension and Rent Assistance.
The wife is a member of the Boards of Directors of the companies E Pty Ltd and F Pty Ltd.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The husband was born in 1963 and is currently aged 49 years.
The wife was born in 1966 and is currently aged 46 years.
The parties commenced cohabitation in 1991 whilst living in Europe.
In approximately September 1991, the wife returned to Australia where she took up employment in a professional occupation with I Pty Ltd.
In about 1991, the wife received a cash distribution from her great aunt’s estate in the sum of about $20,000.
In early 1992, the husband returned to Australia and commenced working in a professional occupation.
In February 1993, the parties purchased their first home at G Street, Suburb H (“the Suburb H property”) for $199,000.
In early 1994, the wife ceased her employment at I Pty Ltd and commenced work in another profession.
From July 1994 to July 1995, the wife was transferred to New York for work. She asserts that the husband visited her for one period of about two weeks during that year. Upon the wife’s return the parties resumed living together at the Suburb H property.
In 1994/1995, the husband commenced university studies.
In May 1998, the parties purchased a two bedroom unit at J Street, Suburb K (“the Suburb K property”) as an investment for $208,000. The wife asserts that the purchase was funded by using some of the wife’s bonus she received from her work, and a mortgage from the Commonwealth Bank. This unit was rented out.
In 1999, the parties purchased the former matrimonial home at B Street, C Suburb (“the C Suburb property”) for $620,000. The wife asserts that as the Suburb H property had not yet been sold they obtained bridging finance. The Suburb H property was subsequently sold for $428,000 and the net proceeds of sale were applied to partially repay the bridging loan.
In 1999, the parties were married.
In July 2000, the first child of the marriage, L, was born. He is now aged 12 years.
The parties retained a full-time nanny and the wife returned to work as an around six months after L’s birth. She initially worked for three days per week. After two months she increased it to four days per week.
In April 2001, Ms M commenced working for the family as a nanny.
In November 2002, the second child of the marriage, N, was born. He is now aged 9 years.
Following N’s birth the wife took six months leave from work and then returned working four days per week.
In March 2006, the third child of the marriage, O, was born. She is now aged 6 years.
Following O’s birth the wife took six months leave from work before returning to work four days per week.
In 2005 or 2006, the parties undertook significant renovations to the C Suburb property. The husband asserts the cost was approximately $450,000 whereas the wife asserts it was approximately $750,000. The wife states that the renovations were paid by establishing an additional loan secured by mortgage. The wife states that the parties rented a home owned by the wife’s brother for around ten months at a below market rent whilst the C Suburb property was being renovated.
From December 2007 to April 2009, the husband ceased to be in full-time employment and asserts he was the primary caregiver to the children. The wife deposes that she was forced to increase her work hours to full-time so that the family’s outgoings including the additional liability associated with the renovations could be met. The wife puts in issue the degree to which the husband fulfilled his asserted role as carer for the children during the marriage. She points to the retention and utilisation of nannies in this regard. It seems clear that whatever the husband undertook in relation to child care he had assistance from a nanny paid for by the wife.
In early 2008, the wife deposes that, having become concerned about the increasing interest rates and the parties’ financial position generally, the wife arranged with the bank to fix the interest rates on approximately two-thirds of the amount outstanding on the home loan for five years.
In early 2009, the husband was diagnosed as suffering from major depression and Bipolar II disorder.
In March 2009, the Suburb K property was sold and net proceeds of sale were received in the sum of $313,730. The husband gives evidence that the wife deposited these monies into an account in her sole name and used the husband’s Power of Attorney to instruct the conveyancing solicitor.
The wife asserts that the parties separated in April 2009.
In March 2009, the wife states that she attended rental properties with the husband to assist him in finding alternate accommodation. She states that she borrowed money to pay for his bond and continued to meet lease payments on the furnished apartment during the time that he was hospitalised.
It is the husband’s evidence that he vacated the family home temporarily on 8 April 2009.
In April 2009, the husband became eligible for a Centrelink pension.
The husband deposes that in April 2009, the wife disposed of the parties’ jointly owned motor vehicle and purchased a new vehicle with changeover costs of $11,500. The husband asserts he was not consulted and did not sign any paperwork in relation to the disposal. The wife states that this occurred in June 2009.
On 15 May 2009, the husband was hospitalised to P Clinic with severe depression. He was released in July 2009 and diagnosed with Bipolar II Disorder at this time by Dr Q.
In September 2009, the wife deposes that she once again looked at rental properties with the husband and again paid the bond and signed a lease with him for a two-bedroom apartment in C Suburb. She states that she also purchased furniture that was paid for using her credit card.
The husband asserts that the parties separated on a final basis on 21 June 2010.
On 27 July 2010, the wife states that she paid $1,636.25 to a bookkeeper so as to provide a clear picture of the parties’ financial position to the husband.
In September 2010, the wife resigned from her employment with R Pty Ltd and became a full-time non-executive company director. The wife received $137,900 from the buy back of her shares with R Pty Ltd. The wife deposes that she is required to pay Capital Gains Tax on the sale of those shares after lodgement of her 30 June 2011 Tax Return. The wife also received a payout in respect of accumulated leave from R Pty Ltd. At that time the wife had two board of director positions. For a period of approximately six months the wife received income from both R Lty Ltd and from her board positions.
During 2010, after a lengthy appeals process the husband first received his Centrelink pension and arrears.
During 2011, L spent no overnight time with the husband.
On 30 October 2011, the parties were divorced.
On 18 November 2011, the husband filed his Initiating Application.
In February 2012, the parties commenced parenting arrangements on a three-weekly rotational basis whereby L and N spend overnight time with the husband separately to O.
On 28 February 2012, Consent Orders were made by Monahan FM that by way of interim costs the wife was required to deposit the sum of $30,000 into the husband’s solicitor’s trust account in two instalments of $15,000, with the characterisation of such payments to be made by the trial judge.
In March 2012, the husband disposed of his watch for $450 to repay a loan to a pawn shop.
On 22 May 2012, the matter was transferred to the Family Court of Australia by Monahan FM.
On 30 July 2012, orders were made for exclusive occupation in favour of the wife, dismissing the husband’s interim application for spousal maintenance, an order that both parties will seek to obtain further funds from St George Bank in the amount of $80,000 each, and parenting orders providing for all three children to spend time with the father provided he had “appropriate accommodation”.
On 31 July 2012, Fowler J made orders expediting the financial issues in the matter only to a final hearing on 16 and 17 August 2012.
In August 2012, the husband deposes that he approached St George Bank to enquire as to the parties’ borrowing capacity in compliance with the Orders of 30 July 2012 and that there was no offer of the funds referred to.
The final hearing took place on 16 and 17 August 2012. Oral submissions were heard on 24 September 2012.

The Issues

What is the property of the parties to the marriage or either of them?
What, if any, is a just and equitable re-distribution of that property having regard to the contributions made by each of the parties as described in s 79 of the Act?
Given the assets of the parties to the marriage or either of them, what, if any, is an appropriate alteration to their property interests which will do justice as between them, having regard to the matters required to be taken into account under s 75(2) of the Act?
Finally, having reached a conclusion as to the matters referred to, is any alteration to a division based on those considerations or for other appropriate reason required to do justice and equity in the matter?

The Evidence

The husband relied upon the following material:
a)affidavit of Mr Stuart filed 13 August 2012
b)affidavit of Mr S filed 13 August 2012
c)affidavit of Mr T filed 9 August 2012
d)affidavit of Mr U filed 13 August 2012
e)affidavit of Mr V filed 13 August 2012 and
f)affidavit of Dr W filed 27 July 2012
The husband also relied upon a proof of evidence of his updated financial circumstances which became Exhibit 2.
The husband also relied upon Annexure D to the wife’s affidavit filed 10 August 2012, being a copy of searches of rental properties in the C Suburb area, which became Exhibit 1.
The husband submitted that the evidence of Dr W falls into the class of un-contradicted evidence as he was not called for cross-examination.
The wife relied upon the following material:
a)affidavit of Ms Seaton filed 10 August 2012
b)Financial Statement of Ms Seaton filed 10 August 2012 and
c)affidavit of Ms M (former nanny to the children) filed 10 August 2012.
The affidavit of Ms M was admissible; however the husband had objections to it. The Court will allocate such weight as is appropriate to her evidence. Ms M was not required for cross-examination.

The Orders Sought

The husband, in summary, sought the following orders:
(1)That paragraphs 7, 8 and 9 of the Orders made by consent by Rees J on 30 July 2012 be discharged upon the earlier of:
(a)The payment of lump sum spouse maintenance payment referred to at Order 18 below; or
(b)          The payment by the wife referred to in Order 2(a) below.
(2)That the wife do all acts and things and sign all documents necessary to:
(a)          Pay to the husband the sum of $340,000 by way of settlement of property
(b)          Discharge the mortgage registered on the title to the [C Suburb] property
(3)That simultaneously with the wife’s compliance with Orders 1(a) and (b) herein, the husband do all acts and things and sign all documents necessary to:
(a)          Transfer to the wife all of his right, title and interest in the [C Suburb] property
(b)       Transfer to the wife all of his right, title and interest in any joint bank account held with the wife.
(4)That if the wife fails or neglects to comply with Orders 1(a) or 1(b) herein, that the husband and the wife do all things necessary to sell the [C Suburb] property.
(5)That from the proceeds of sale of the [C Suburb] property, the husband and the wife do all acts and things necessary to cause the proceeds of sale to be paid in the following manner and priority:
(a)       In payment of the agent’s commission and auction expenses (if any) due on the sale
(b)       In payment of the legal costs and disbursements of the sale
(c)       In payment of the amount required to discharge any mortgage registered on the title to the [C Suburb] property
(d)       In payment to the husband of a sum in accordance with the following formula:
“(WP + H + W) x 60% - H”
Where:
WP means the sale proceeds of the [C Suburb] property after deduction of expenses in Order 4
H means the husband’s other net assets valued in the sum of $193,790 (including superannuation with the split in Order 6)
W means the wife’s other net assets valued in the sum of $161,385
(e)       Payment of the balance to the wife.
(6)That a base amount of $100,000 is allocated, as required by s 90MT(4) to the husband out of the wife’s interest in [D Superannuation] Plan.
(7)That in accordance with s 90MT(1)(a):
(a) The husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and
(b)       The wife’s entitlement, and the entitlement of such other person to whom a splittable payment may be made, to payments out of the wife’s interest in the fund is correspondingly reduced by force of this Order.
(8)That the trustee of the fund shall do all acts and things and sign all documents as may be necessary.
(9)That this Order have effect from the operative time, and the operative time is 3 days after service of this Order on the trustee.
(10)That the husband shall do all things necessary to exercise his request pursuant to Rule 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferrable benefits out of the wife’s interest in the Fund to a fund of the husband’s choosing in accordance with Rule 7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
(11)The Court notes:
(a)       The value of the transferable benefit from the wife’s interest to the husband’s interest are calculated in accordance with 7A.12 of the Superannuation Industry (Supervision) Regulation 1994; and
(b)       Pursuant to Rule 14F of the Family Law (Superannuation) Regulations 2011, any payment from the wife’s superannuation interest in the Fund as contemplated by these Orders are not splittable payments.
(12)That the husband do all acts and things and sign all documents necessary to indemnify the wife in relation to the following:
(a)       Any debt or liability due to [Mr S]
(b)       Any debt or liability due to [Mr V]
(c)       Any debt or liability due to [Mr U]
(d)       Any debt or liability due to [Mr T].
(13)That the wife do all acts and things and sign all documents necessary to indemnify the husband in relation to the following:
(a)       The mortgage registered on the title to the [C Suburb] property
(b)       Any capital gains tax payable by either or both the husband and the wife arising out of the wife’s disposal of shares in
R Pty Ltd
(c)       Any debt or liability due to [Mr X] by either or both the husband and the wife.
(14)That the household contents including artworks, rugs, mirrors, decorative items, furniture, electrical and electronic items but excluding any items of the children’s furniture, toys and personal effects, in both parties’ possession be divided equally between them, and to facilitate same, the parties shall agree on an independent person to create an inventory of all items and the wife shall have first pick and the husband second pick, alternating until all items are exhausted.
(15)In the event the parties cannot agree on an independent person to create an inventory of all household contents in each party’s possession, the husband shall forward three names to the wife whom shall select one.
(16)That within one month the wife shall provide to the husband all prints, framed prints, photo albums, negatives and digital photos containing photos of the husband or any of the children and all the children’s artwork framed or otherwise so that the husband may copy or reproduce such photographs and return same to the wife.
(17)That subject to these Orders, the husband and wife each retain as against the other the sole right, title and interest in and legal and beneficial ownership of:
(a)       Any motor vehicles, plant and equipment, chattels, goods, furnishings and other property which are in their possession respectively
(b)       Any money, shares and debentures which stand in their sole names respectively
(c)       Any interests in superannuation which stand in their sole names respectively.
Spouse Maintenance
(18)That the wife pay to the husband by way of spouse maintenance an amount of $10,000 within 7 days from the date of these Orders and thereafter a periodic amount of $1,095 per week for a period of three years from the date of these Orders.
Ancillary Orders
(19)That if the husband or wife refuse or neglect to execute any document that he, she or they are required to execute pursuant to these Orders, the Registrar be appointed pursuant to s 106A of the Family Law Act to execute such document in the name of the defaulting party and to do all acts and things necessary to give validity to the operation of the document.
(20)That the wife pay the husband’s costs of and incidental to this application.

The property orders sought by the husband proceed on the basis that spouse maintenance will be granted. The husband submitted that in the event that the Court refused to make a spouse maintenance order then the property adjustment would need to be re-calibrated.
The wife, in summary, sought the following orders:
(1)That Orders 7, 8 and 9 of the Orders dated 30 July 2012 be vacated.
(2)That the husband transfer to the wife his interest in the [C Suburb] property subject to the mortgage to St George Bank and on the following further terms and conditions:
(a)       That upon settlement of the said transfer the wife is to pay the husband the sum of $185,000 by way of final property settlement;
(b)       That on or before settlement of the said transfer the husband and the wife are to sign all documents and the wife is to pay all monies necessary to cause the loans to St George Bank secured by way of mortgage on the [C Suburb] property to be discharged.
(3)That in the event the wife does not pay to the husband the sum referred to in Order 2 herein, or discharge the loans, then the [C Suburb] property will be sold for the best price reasonably obtainable, and upon settlement of the sale of the home, the parties will cause the proceeds of sale to be distributed as follows:
(a)       In payment of all legal costs, commissions and agent expenses;
(b)       In reimbursement to either party of any sale costs paid in advance by that party;
(c)       In adjustment of rates and other outgoings;
(d)       In discharge of the loans secured by way of mortgages to
St George Bank registered on the title of the home;
(e)       In payment to the husband of 65% and wife of 35% of the balance then remaining.
(4)That pursuant to s 90MT(1)(a) whenever a splittable payment becomes payable in respect of the wife’s entitlement in the superannuation funds known as [D Superannuation], the husband shall be entitled to a payment of $10,000 being the specified base amount of the splittable payment and that there be a corresponding reduction to the entitlement of the wife that she would have had in the [D Superannuation] Fund but for this order.
(5)That there may be no order in relation to the contents held by each party.
(5A)(5A.1) That in the alternative to Order 5, within 14 days of the date of order, the parties jointly instruct a single expert to prepare a valuation of all furniture, furnishings and contents in the possession and control of each party, on the basis that the wife pay the costs of the valuation in the first instance and the husband pay to the wife one-half of that cost simultaneously with the payment referred to in Order 5A.2 herein.
(5A.2)That within 42 days of receipt of the single expert valuations referred to in Order 5A.1 herein, the party holding the furniture, furnishings and contents of greater value will pay to the other party one-half of the difference between the value of the contents held by each party, provided that in the event the parties agree that the wife will retain any contents in the husband’s possession, or that the husband will retain any contents in the husband’s possession, the parties will adjust the payment referred to herein to take account of the value of those agreed item(s).
(6)That other than as herein provided the husband and the wife each be declared the owner at law and in equity of all items of personalty including but not limited to money, proceeds of bank accounts, jewellery, and personal effects presently in their respective possession and control.
(7)That other than as herein provided the husband and the wife each be declared the owner of such superannuation/annuity entitlements, and pension benefits to which each of them is or might become entitled in his or her own right.
(8)That other than as herein provided each of the husband and the wife remain liable for any debts in his or her sole name at the date of the orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.
Spouse Maintenance
(9)That the husband’s application in relation to spouse maintenance be dismissed.
General
(10)That in the event the husband or the wife refuses or neglects to comply with any of the Orders herein requiring a party to execute a deed or instrument, the Registrar or Deputy Registrar of this Court at its Sydney Registry is appointed pursuant to s 106A of the Family Law Act to execute, in the name of the husband or the wife as the case may be, any deed or instrument necessary to give effect to the orders herein, or any of them, and to do all acts and things necessary to give validity and operation to the said deed or instrument.
(11)That each party have liberty to apply upon 7 days notice in relation to the implementation of these Orders.
(12)That the husband pay the wife’s costs of and related to these proceedings.

Credit

It was the husband’s submission that credit looms large in these proceedings, and that the husband’s evidence ought to be preferred where the parties do not agree.
The wife submitted that she gave her evidence in a straight-forward, clear and concise fashion. She submitted that it should not be inferred that because she is a company director she is “familiar with the art of presenting herself to others in the best possible light”, as submitted by the husband. The wife submitted that such a statement is inconsistent with her presentation and with the tenor of the cross-examination of the wife.
The Court believes that each of the husband and the wife told the truth as they saw it. The Court has however come to the conclusion that it is more probable that the wife’s account of matters is to be preferred as reliable to the account of the husband unless otherwise stated.

Property matters

The first step I must undertake is to identify the property of the parties or either of them available for division between them.
The Court at the commencement of the hearing was provided with the balance sheet set out hereunder for its consideration, which became Exhibit 17.

The Balance Sheet

Ownership		Description	Husband	Wife
ASSETS
1	Joint	B Street, C Suburb	$1,825,000	$1,825,000
2	W	Bank accounts: - St George Acc No… - St George Acc No …	NK NK	$2,002 $11,327
3	H	Bank accounts: - St George Acc No … - St George Acc No … - St George Acc No …	$ Neg $ Neg $ Neg
4	W	Motor vehicle 1	$25,255	$25,255
5	H	Motor vehicle 2	$3,250	$3,250
6	W	Contents	Nil	Neg
7	H	Contents	Nil	Neg
8	W	Jewellery	$9,270	$9,270
9	H	Tools and Jewellery	$1,500	$1,500
Total		$1,864,275	$1,877,604
ADDBACKS
10	H	Legal fees: - paid - trust	$20,636.56 $13,071.99	$NK $NK
11	W	Legal fees: - paid - in trust	$NK $NK	$24,878 $Nil
Total		$33,708.55	$24,878
LIABILITIES
12	Joint	Mortgages (St George): - S … - S … - S …	$775,425 $261,006 $228,985	$775,425 $261,006 $228,985
13	Joint	St George Break costs	$32,331	$32,331
14	W	Tax re 2011 return	Nil	$22,655
15	W	Accountants re 2011 tax return	$1,045
16	W	St George Mastercard	Nil	$17,293
17	W	Commonwealth Bank	Nil	$9,897
18	W	Mr X	Nil	$10,000
19	H	Commonwealth Bank Visa	Nil	$6,000
20	H	Mr S	$16,606	Disputed
21	H	Mr T	$4,000	Disputed
22	H	Mr V	$14,535	Disputed
23	H	Mr U	$900	Disputed
Total		$1,333,788	$1,364,457

SUPERANNUATION
Member		Name of Fund	Type of Interest	Husband’s Value	Wife’s Value
24	H	E Pty Ltd	Accumulation	$35,207	$35,207
25	H	AA Pty Ltd	Accumulation	$5,677	$5,677
26	H	BB Pty Ltd	Accumulation	$868	$868
27	H	BB Pty Ltd	Accumulation	$11,839	$11,839
28	H	CC Pty Ltd	Accumulation	$9,314	$9,314
29	H	Australian Super	Accumulation	$29,628	$29,628
30	W	D Super	Accumulation	$200,475	$200,475
31	W	AMP	Accumulation	$7	$7
Total		$293,015	$293,015
Net Assets (exclusive of superannuation)		$564,195.55	$538,025
Net Assets (inclusive of superannuation)		$857,210.55	$831,040

Items 6 and 7 of the balance sheet, being the household contents of the parties, will not be included in the balance sheet as the value of these items are unknown. The Court proposes to make orders for the parties to be the sole legal and beneficial holders of any household contents in their possession or control.
It was stated by Counsel for the husband that some of the husband’s legal fees were paid from an interim property settlement. It is also stated that some of the wife’s legal fees were paid with her Mastercard.
It is unknown how much of the legal fees have been paid from borrowings by the parties and, accordingly, the Court will not include the parties’ legal fees in the balance sheet however will take these into account under s 75(2).
Item 14, being the wife’s 2011 tax return, was not conceded at the commencement of the hearing. When the matter came back before the Court for oral submissions the wife produced a copy of her 2011 tax return together with a portal print out, which became Exhibit 16. Exhibit 16 demonstrates that the wife had a debt of $22,655 as at 30 June 2011. The wife submitted that she apprehended that this amount would be conceded. The wife relied on an affidavit filed in Court on 24 September 2012 which deposes that she was charged penalties of $440 and interest totalling $518.67, and that after application by her accountant, the penalties charged were waived. The wife deposes that she currently owes the Australian Taxation Office (“ATO”) $22,773.67. The Court will accept the portal amount of $22,655.
The husband submitted that this debt arises from income received by the wife exclusively and that it has arisen following separation. The husband submits that the wife should not expect to have the benefit of the income yet to share her tax liability with the husband.
The wife submitted in reply that when dealing with how this debt has arisen the Court should take into account the wife’s income tax return which was lodged on 10 August 2012 which shows capital gains, and that some of the benefits that have flowed to the parties and will flow to the parties relate to the sale of shares and real estate. The Court will include the liability in the balance sheet.
The wife submits that it would be appropriate to take into account the wife’s credit card debt as her financial statements have shown continued deficit to meet her outgoings for the household, children, mortgages and the like.
With respect to Item 18, the wife submitted that there was a written loan agreement, that the evidence was that Mr X loaned the money to the wife shortly before they commenced a relationship, and that the husband agreed in his evidence that money had been transferred into his solicitor’s trust account and he did not take issue that it came from Mr X. The wife submitted that the Court should not draw an adverse inference because Mr X did not verify the evidence that this was a loan. The Court accepts that the sum is due by the wife to Mr X and that it was applied to the benefit of the husband.
The husband’s father, Mr S, gave evidence in respect of Item 20 in the balance sheet. It was his evidence that he would not waive the repayment of these monies as he had loaned money to both of his children on the understanding that they would repay him and on each occasion they have done so. He stated that he would consider deferring the repayment if there was no alternative for the husband.
Mr S stated that when he and his wife agreed to loan the husband money it was with the expectation that the husband would receive a property settlement and would be able to repay the loan as well as rehouse himself and make arrangements to get his life in order. In any event, he stated that he would need to reconsider the situation if the husband required a deferral of the payment.
Mr U, a friend of the husband’s, gave evidence with respect to Item 23 on the balance sheet, being a loan of $900. It was his evidence that he advanced this money to the husband to assist him in repairing his motor vehicle. Mr U gave evidence that it was his understanding that the husband would receive a financial settlement and that he would be repaid.
Mr U stated that in the event that the husband needed the money from his property settlement to rehouse himself, he would need to consult with his wife as to whether they would insist on the husband repaying him.
The wife indicated in the notes to the balance sheet that Items 20–23 should not be included and that she does not accept these are liabilities in the legal sense of the word. The total amount of the husband’s liabilities from borrowings from his father and friends is $36,041. The Court has considered the evidence given that some time or indulgence might be granted by the creditors to the husband but does not accept that that evidence means that they should be excluded from consideration in the determination of the issues.
The wife conceded that Items 20–23 are debts, however she takes issue with whether the debts are immediately repayable. The wife submitted that the evidence from the husband’s landlord was that if the husband could not afford to make immediate payment that they would not force him to pay or make him vacate the premises. The Court nevertheless believes that this does not extinguish the debts and it is up to the creditors whether they wish to give the husband some indulgence in repaying them. There is no evidence that the debts will be forgiven. They however are post separation debts which will be taken into account under consideration of s 75(2) factors.
During the course of oral submissions the husband provided the Court with written submissions which contained an amended balance sheet. The amended balance sheet contained changes to the husband’s paid legal fees at Item 10. The amount paid was reduced from $20,636.56 to $20,056.01. The Court was advised at the commencement of the hearing by Counsel for the husband of the sum which appears in the original joint balance sheet. The Court will accept the figure that appears on the joint balance sheet.
The husband also amended the figure at Item 28 of the husband’s CC Pty Ltd superannuation fund on the wife’s side of the balance sheet and put an amount of $11,840 instead of $9,314. During the course of submissions the wife indicated that she did not agree with the husband’s change to the balance sheet and stated that in the original joint balance sheet there was agreement at an amount of $9,314.
The husband also inserted a figure of $10,000 at Item 6 on the wife’s side of the balance sheet as the value of the personalty in the wife’s home. The wife submitted that she has no knowledge where that figure came from and that she holds to saying it is a negligible figure. In the absence of a concession to the contrary and expert evidence, the Court accepts that the figure should be excluded.
The wife submitted that in circumstances where the wife says the house contents hold a negligible value and the husband says that his items of personalty likewise have a nil value, and where there was evidence that most of the furniture was procured second-hand or through council cleanups, and that the husband gave evidence that he has refurnished his house, the Court would decline to make the order sought by the husband for a two-list approach of dividing the household contents.
The wife argued during the course of submissions that the Court should approach with caution and disregard the husband’s balance sheet set out in his submissions as it is not agreed and is inaccurate.
The Court will treat the payment of $30,000 to the husband as partial property settlement. It is noted that the monies were provided by the wife from her assets or from borrowings referred to.

The Assets and Liabilities of the Parties

The Court finds the assets and liabilities of the parties are as follows:

Assets	($)
B Street, C Suburb (j)	1,825,000
Bank accounts (w)	2,002
Bank accounts (w)	11,327
Motor vehicle 1 (w)	25,255
Motor vehicle 2 (h)	3,250
Jewellery (w)	9,270
Tools and jewellery (h)	1,500
Superannuation: E Pty Ltd (h)	35,207
Superannuation: AA Pty Ltd (h)	5,677
Superannuation: BB Pty Ltd (h)	868
Superannuation: BB Pty Ltd (h)	11,839
Superannuation: CC Pty Ltd (h)	9,314
Superannuation: Australian Super (h)	29,628
Superannuation: D Super (w)	200,475
Superannuation: AMP (w)	7
Addback: Interim Costs (h)	30,000
Total Assets	$2,200,619
Liabilities
Mortgages (St George): (j) - S 211 590 363 900 - S 211 590 363 901 - S 211 590 366 300	775,425 261,006 228,985
St George Break costs (j)	32,331
Tax re 2011 Return (w)	22,655
Accountants re 2011 Tax Return (w)	1,045
St George Mastercard (w)	17,293
Commonwealth Bank (w)	9,897
Mr X (w)	10,000
Commonwealth Bank Visa (h)	6,000
Total Liabilities	$1,364,637
Nett Assets exclusive of Superannuation	$542,967
Nett Asset Pool (inclusive of Superannuation):	$835,982

Section 79(4) contributions

Initial Contributions

The wife asserts she made a superior initial contribution by way of bequest from her great aunt’s estate of $20,000 which was parlayed into the purchase of the parties’ first home, the Suburb H property. The wife conceded that this was a long time ago but was a piece of evidence that could not be ignored and provided a building block for the future of the parties. The Court notes the contribution and its age and will weigh it with the contributions otherwise made having regard to those matters.
When the parties commenced cohabitation in Europe in 1991, the wife was travelling and the husband was working as a contract tradesman.
The husband submits that the parties commenced their relationship with no assets of “commercial significance”.

Contributions to date of separation

The wife submits that up until the date of separation she made a far greater financial contribution to the purchase and maintenance of the parties’ assets and running of the household by way of superior earnings throughout the period of cohabitation. This seems probably correct.
In about 1991, the wife received a cash distribution from her great aunt’s estate in the sum of about $20,000. The husband agrees that this should be treated as a contribution made by the wife: Bonnici (1992) FLC ¶92-272 at 79,020.
The wife’s evidence is that the money she received from her great aunt’s estate was used as the deposit for the Suburb H property, and that the balance was funded by a loan from the Commonwealth Bank. The parties were listed on the Certificate of Title as tenants in common as to 55 per cent to the wife and 45 per cent to the husband. The wife states that the parties agreed this was to reflect the wife’s superior contribution to the purchase of the property.
The husband asserts that in 1996 he carried out renovations to the Suburb H property. He also asserts that in 1999 he carried out additional works to the property to prepare it for sale.
From March 1994 to September 2010, the wife was employed on a full-time basis as an investment banker, although for different employers.
The wife asserts that the husband worked in various roles associated with the marine and construction industries until 2007; apart from a period when he studied in 1994/1995, a period of nine months from September 1996 when he was unemployed, and a further period of six months from March 1999 when he was again unemployed. The wife submits that during those periods she financially supported both of them.

In late 1997, the wife received a significant cash bonus in relation to her work.
In 1999, the husband enrolled at university. He did not complete the course.
The wife submits that the husband had significant periods where he did not take up paid employment during the marriage, and that he was financially supported by the wife during these times.
The husband submits that he applied his skills in renovating the parties’ properties. He asserts that their first joint purchase, the Suburb H property, was renovated extensively by the husband working largely alone. He submits that this property enjoyed a $229,000 or 100 per cent capital gain in a three-year period.
The husband submits that the C Suburb property, with an agreed value of $1,825,000, also enjoyed substantial gains in value from its initial purchase price of $520,000 plus $450,000 in extension costs. The husband submits the value of this property has increased by 108 per cent in the 13 years that the parties have owned it. The husband submits that he also worked on this property and substantially contributed to its capital gain.
Capital gain in relation to properties may of course be assisted significantly by renovation of property but nevertheless owes, in many cases, much of its existence to the effluxion of time and the nature of the market generally.
It is the husband’s submission that with a net worth of $601,903 (exclusive of superannuation), it is clear that the selection and improvements of the Suburb H and C Suburb properties played a significant part in the parties’ accumulation of wealth.
The wife submits that there is a significant dispute as to the amount of assistance the husband gave the wife in terms of parenting prior to separation. The wife states that this is notwithstanding the fact that the husband was not in paid employment from December 2007 until either date of separation and beyond.
The wife asserts that she was the parent primarily responsible for the care of the children prior to separation.
It is also the wife’s assertion that she was primarily responsible for paying bills, organising the care of the children whilst she was absent from the home, buying and selling property, buying and selling assets and general tasks connected with the smooth running of the household. The wife asserts she has continued in this role post separation.
The wife also submits that the evidence of Ms M, who worked for the parties, is that the husband was unable to assist in any meaningful way in terms of homemaker or parent.
It is the wife’s evidence that once the husband became unemployed she alone financially supported the household, including continuing to pay the salary of Ms M. She states that whilst at first they reduced Ms M’s hours to save money, after a few weeks the husband asked that Ms M return and soon after she was working for the family full-time.
The wife’s evidence is that the husband was neither working, nor solely caring for the children, and that the discrepancy between the household income and expenses was significantly greater than had previously been the case. She states that they met the shortfall by drawing on the line of credit which had remained in place since they purchased the C Suburb property.
The wife states that it was conceded that even prior to the husband becoming unemployed she did other tasks in relation to the household including managing the finances, paying the mortgage, organising the conveyancing and so on, and that she performed the majority of the household tasks as between the parties.
The husband submits that the wife has not made full and frank disclosure of how she spent the sale proceeds of $314,000 of a property owned at Suburb K. It is the husband’s submission that the wife only provided explanations to him of how she spent $128,300 which, he says, leaves $185,700 in the control of the wife unaccounted for.
The husband’s submission is that the wife’s account, including that she used the proceeds in part to meet the shortfall between her income and expenses which she estimates to be between $1,100 and $1,400 per week, is less than a fulsome account of the fate of a sum of $185,700. The husband was critical of the wife’s description of the husband in her affidavit and oral evidence and submitted that claims made by her were structured to belittle the husband, belittle his contributions, and belittle his diagnosis.
The husband was critical of the wife’s description of the husband retiring to bed at the busiest time of the day and that he retreated from the family. The husband was also critical of the wife’s assertion that as a result of the husband’s illness and depression her efforts in the home were more arduous.
The Court does not find that there is anything other than a statement of the truth as the wife sees it in the submissions she has made. There is, in the Court’s view, nothing more than an attempt to describe what happened. There is, in the Court’s view, no criticism or belittling of the husband.
The Court notes that the wife made contributions as a comforter to the husband at his moments of distress and in completing household tasks that he was unable to complete. An example used was when the husband was unable to complete baking and decorating a birthday cake for one of his children.

Contributions Post Separation

The wife asserts that she has been almost solely responsible for the maintenance of the parties’ assets since separation. She submits that she has continued to be responsible for the payment of the outgoings on the home, the major asset of the parties, which has included the mortgage, insurance and rates and other associated costs.
The wife submits that she has paid considerable sums to the husband or on his behalf since the date of separation.
It is the wife’s submission that she has received no child support or other monies from the husband to assist her in the care of the children since separation.
The children have lived with the wife since separation. The wife submits that the husband has maintained that he is not able to care for all three children together on an overnight basis. Accordingly, the wife submits that she has had little assistance from the husband since separation in terms of caring for all of the children.
The wife submits that contributions favoured her 60:40 at the time of separation and that there ought to be a further 5 per cent adjustment for her post separation contributions.
In his case outline provided to the court, the husband submits that contributions favour the husband in the ratio of 52:48.
In his oral submissions the husband submitted that as at the date of separation the contributions were equal, and as at the date of the hearing the contributions were 60 per cent to the husband and 40 per cent to the wife.
The husband submits that the wife has had the use of very large sums of money to the exclusion of the husband post separation, which affords the husband an extra 10 per cent in contributions. The husband submits that when comparing the funds available to the wife and her expenditure there is an unexplained amount of $100,000.
The husband submits that the wife has had the benefit of the sale proceeds of approximately $300,000 from the Suburb K property, in addition to $137,000 from R Pty Ltd and her salary, and that she has the burden to explain what happened to these large sums of money. The wife has said that they have been applied to the shortfall in her income compared to her outgoings. The Court accepts this as likely. Some complaint was made by the husband as to the amount the wife spent. The Court, having regard to the employment of the wife, finds the wife’s spending habits consistent with her history and her employment and a standard of living which in all the circumstances is reasonable.
The wife did not concede that she has had the benefit of $100,000 and not explained that. The wife submitted that originally the husband told the Court that there was no add back argument and that it was inappropriate to change that approach during the course of submissions. The Court agrees that it is inappropriate to adopt one view prior to trial and to seek to change it on trial if such a change would put a party at a significant disadvantage.

Conclusion based on contribution

The evidence is that the husband’s depression had an effect on his contributions financially and non-financially.
All in all, I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them, including such property which is no longer the property of the parties to the marriage or either of them, to be 60 per cent in favour of the wife and 40 per cent in favour of the husband to the date of their separation. The Court assesses that the contributions made by the parties post separation again favour the wife and the result should be reconsidered and the Court accepts the proportions of 65 per cent to 35 per cent in favour of the wife post separation.

Section 75(2) considerations

The husband is 49 years of age and the wife is 46 years of age.
The husband’s physical health is good but his mental health is poor. The husband has been diagnosed with a depressive disorder and Bipolar II Disorder. The husband has been hospitalised in connection with his mental health and is undergoing psychiatric care.
The husband relied on the evidence of Dr W. Dr W was not required for cross-examination and it is the husband’s submission that his evidence is un-contradicted.
The husband has received treatment for depression from Dr W since November 1999 on a weekly or fortnightly basis. Dr W states that he continues to treat the husband for management of his mood disorder using biological management with medication as well as psychotherapy to help with his depression, including cognitive behaviour therapy to challenge negative thoughts.
The husband’s current treatment includes Lexapro, lithium carbonate, lamotrigine and dexamphetamine. Dr W states that on this current treatment the husband’s mood is more stable than it was previously, but that the husband still experiences periodic depression, anxiety, panic attacks when under stress and difficulties with coping.
Dr W’s evidence is that as the husband has only worked part-time as a handyman over the last five years, he believes that over the next twelve months he will not be working any more than part-time and the only work he is likely to complete is that of handyman type work where he is able to control the number of hours and days that he works.
According to Dr W, the challenges that will face the husband progressing to full-time or part-time employment in the medium- to long-term include the ongoing mood symptoms which occur despite multiple medications used for stabilisation of mood and regular psychological treatment.
Dr W’s evidence is that it is hard to envision the husband conducting anything other than part-time employment in the medium term, given his history of unemployment and being on the Disability Support Pension for the last five years. He reports that his five-year absence from full-time employment makes it less likely for him to be able to return to full-time employment. However, he reported that this situation needs to be reviewed from year to year.
The ongoing costs of treatment for the husband according to Dr W would be $275 for a 50-minute session which would preferably be conducted on a weekly basis, which could entail up to 46 sessions over the next 12 months. Of note is that there is a Government Medicare rebate against these costs.
The wife has also been diagnosed with a depressive disorder. The wife submits the she is not in perfect health and that there is evidence that supports this.
The husband submits that the wife’s depression is well managed by medication and has had no impact on her capacity to work and has not seen her hospitalised.
The wife submits that the husband has a capacity and is fit for some employment and that his evidence is that he is hopeful of expanding upon this in the future.
The wife submitted that the Court would not be impressed with the husband’s evidence about his employment as he provided no evidence of his current earnings, how many hours he works per week and how much he charges per hour for his handyman work. The wife does not concede that the husband only earns an average of $75 per week. The Court does not find that the husband was untruthful in his recounting of his employment.
The husband submits that there is no issue that he is capable of some employment and has in fact undertaken some work including of recent times. The husband submits this fact does not however affect the appropriateness of an adjustment under s 75(2)(h) or a spouse maintenance order: Eliades (1981) FLC ¶91-022 per Nygh J at 91-022. He submits that what constitutes adequate income in one circumstance will be inadequate in another. The husband’s submission is that the circumstances of this case suggest that adequate be at the higher end of the range.
The wife is a member on the boards of E Pty Ltd and F Pty Ltd. The wife earns approximately $6,149 per week from Directors Fees at E Pty Ltd and $952 per week from Directors Fees at F Pty Ltd.
The husband submits that the wife has an ongoing capacity to continue to earn fees as a director of major companies. He also submits that she has the capacity to create new wealth which will far exceed the parties’ extant wealth: In the Marriage of Best (1993) FLC ¶92-418 at 80,295-80,296; In the Marriage of Clauson (1995) FLC ¶92-595 at 81,911.
It is the husband’s submission that the wife has a wide range of skills. It is submitted that the companies for which the wife acts as a director are “blue chip” entities with vast turnover in growth areas. The Court does not have either evidence before it which would enable it to form that conclusion and in any event the term “blue chip” is really a qualitative expression of opinion about which there is no evidence.
The wife deposes that her expenses exceed her income, that she does not have the funds to meet an interim costs order for the husband, and that she has virtually no funds in her bank account other than funds which will be used to pay the mortgage.
The wife submits that she has elected to take up employment that permits her to have greater flexibility in the care of the children than might otherwise be the case if she worked in a full-time position in the finance sector.
The wife also submits that it is unlikely she will obtain meaningful assistance from the husband. This, at the present time, seems probable.
The husband submits that the parties started with little and that the husband undoubtedly contributed to the assets now in existence. He also submits that the parties’ move to Australia came at a cost of the husband’s job in Europe where he was enjoying a well paid job as a tradesman.
It is the wife’s submission that she will continue to be the parent who is primarily responsible for the care of the children into the future. She asserts that the assistance she has received from the husband since separation has not been great, and asserts that there is no reason to expect that position to change.
The husband’s submission is that final parenting orders are yet to be made but at this stage it is anticipated that the children will spend significant time with the father on a regular weekly basis. The husband submits that for this to operate successfully it would be appropriate for the husband to live in reasonably close proximity to the former matrimonial home. The recent past history of care does throw some doubt on the husband’s optimism in relation to the time the children will spend with him.
The husband submits that protecting the husband’s role as parent involves the parties living in reasonably close proximity and for the standard of living in each home not to be dramatically different in each home.
Neither party is cohabiting with another person. The wife has re-partnered and the husband submits that her new partner, Mr X, is apparently willing to advance her money and that they are living in a de facto relationship. The husband was critical of the fact that Mr X was not called to clarify the status of the relationship.
The wife’s evidence is that she is not in a de facto relationship with Mr X and that he lives in a different city. The Court makes no finding other than that there is a relationship between the wife and Mr X of friendship with benefits and that Mr X has provided some money to assist the wife by way of loan.
The wife’s friend, Mr X, lives in Brisbane and is a successful businessman.
The husband submits that the net assets of the parties are relatively modest in contrast with the wife’s future earning capacity.
The wife submits that the husband has paid no child support since separation. His application does not propose that he does so into the future. His application to the Court is that the wife would pay his expenses each week and, it is inferred, continue to be solely responsible for the financial support of the children.
The husband submits that the current and future child support is likely to be modest.
The wife submits that there are significant expenses connected with L’s counselling fees, he having special needs, which fees the wife will continue to meet.
The parties have previously agreed that the children will be privately educated and it appears the wife will be responsible for those costs.
The husband submits that while he has no objection to the children attending DD School, he does not think the parties are in a financial position to afford the school fees. The husband submits that on the wife’s financial statement the DD School fees are unfunded and that the wife must believe that she can cut her expenses in some areas or she has a resource she has not disclosed or that those fees are speculative and that the Court should not take them into account as an ongoing commitment of the wife in relation to the children.
The Court will take into account that the husband considers the private schooling of the children reasonable and desirable. It notes that the husband would prefer such schooling if it could be afforded and it seems that it can if the wife meets at least at the present time the majority of the costs of such schooling.
The Court considers education as a reasonable expense and if the husband is unable to meet this expense or any part of it, it seems that the wife will and this is a matter for a section 75(2) adjustment in her favour.
It is submitted by the wife that any adjustment that the Court proposed to make pursuant to s 75(2) to redress the husband’s contention that he is unable to work as a consequence of his depressive disorder would be offset by the wife’s duty to maintain three children into the future. The wife submits that this position is fortified given that there does not appear to be any change in the husband’s current position that she should be solely supporting them.
Further, the wife submits that she will continue in employment that assists her in being available to the children as much as possible.
The husband has had the benefit of $30,000 which was the subject of consent orders made on 28 February 2012 by Monahan FM. The monies were in the form of interim costs to be paid in two instalments with characterisation of such payments to be made by the trial judge. The Court has treated them as partial property settlement.
The Court notes that the wife gave evidence that in order to comply with the orders she asked Mr X to pay some of these monies to the husband, and this represents the $10,000 liability that the wife has to Mr X, which was the subject of a loan agreement.
The husband has certain loan liabilities acquired post separation which he will be required to repay.
In his case outline document provided to the Court, the husband submits that the foregoing factors favour the husband by a further 8 per cent taking the just and equitable division to 60:40 in his favour.

In his oral submissions, the husband argued that there should be a slight further adjustment in the husband’s favour by way of a spouse maintenance order.
In the case that the Court did not make an order for spouse maintenance, the husband submitted that a s 75(2) adjustment should be in the order of 15 per cent in favour of the husband, bearing in mind all his circumstances.
The husband submits that there should be that 15 per cent adjustment due to the wife’s higher earning capacity and her desire to remain in the former matrimonial home.

Conclusion on section 75(2)

For all the reasons referred to above and in the circumstances where the husband is not engaged in full-time employment and the wife’s income earning capacity so vastly exceeds his and notwithstanding she will continue to be the primary supporter of the children and noting the husband suffers from mental ill health, the Court will allow an adjustment of 15 per cent in the husband’s favour.

Overall division of assets

The above determination will see the mother receive 50 per cent of the parties’ assets and the father receive 50 per cent which the Court finds is just and equitable.

Just and equitable

In this case, the wife seeks to retain the C Suburb property as a home for herself and the children. Given some of the difficulties that have existed, particularly with L, the wife says that the stability of continued residence in that home will be good for him and that movement may be detrimental. Overall, it is desirable for all three children to have the stability that continuity of residence in the home as a base may provide.
Accordingly, orders are framed which will hopefully better enable the wife to attempt to purchase the husband’s interest in the former matrimonial home and in order to enable that to happen, and given the wife’s present funds available, it is proposed that the husband’s share in the wife’s superannuation will be increased from an amount equal to 50 per cent of the superannuation pool when combined.
It seems that this will have a dual just effect in that it will afford the husband the opportunity to have an amount put aside for his retirement, which on his present earning capacity he would be unable to do, and it will better enable the wife to attempt to purchase the husband’s share in the property.
In the circumstances of this case, I determine that result to be just and equitable overall and, in particular, one that enables the possibility of the wife receiving the home and gives to the husband some security for his retirement.

Orders which should be made

I propose Orders which will give effect to the following division which the Court finds is just and equitable in the circumstances of this case.
The wife will receive:

Assets	($)
B Street, C Suburb	1,825,000
Bank Accounts: · St George … · St George …	2,002 11,327
Motor Vehicle 1	25,255
Jewellery	9,270
D Superannuation	200,475
AMP Superannuation	7
Total Assets (including superannuation)	$2,073,336

Liabilities
Mortgages (St George) · S … · S … · S …	775,425 261,006 228,985
St George Break Costs	32,331
Tax re 2011 Return	22,655
Accountants re 2011 Tax Return	1,045
St George Mastercard	17,293
Commonwealth Bank	9,897
Mr X	10,000
Payment by the wife to the husband	192,733.50
Superannuation Splitting: payment from wife to husband	103,974.50
Total Liabilities	$1,655,345
Net Assets (including superannuation)	$417,991

The husband will receive:

Assets	($)
Motor Vehicle 2	3,250
Tools and Jewellery	1,500
E Pty Ltd Superannuation	35,207
AA Pty Ltd Superannuation	5,677
BB Pty Ltd Superannuation	868
BB Pty Ltd Superannuation	11,839
CC Pty Ltd Superannuation	9,314
Australian Super Superannuation	29,628
Addback: interim costs	30,000
Payment by the wife to the husband	192,733.50
Superannuation Splitting: payment from wife to husband	103,974.50
Total Assets (including superannuation)	$423,991

Liabilities
Commonwealth Bank Visa	6,000
Total Liabilities	$6,000
Net Assets (including superannuation)	$417,991

Spousal Maintenance

The wife disputes that the husband has a need for weekly payments of spousal maintenance.
Further, the wife contends that an adjustment to the husband for a lump sum pursuant to s 75(2), as part of the assessment as to how the parties’ property ought to be distributed, based in part on the husband’s needs and financial capacity, would lead to a duplicity in payment if a weekly payment was also ordered to meet his needs.
The husband submitted that the wife in her conduct has demonstrated or conceded the husband’s need for spousal maintenance. The wife submitted that while the wife assisted the husband to find accommodation post separation, this does not go all the way to a concession of current need.
The wife also submitted that the husband has included expenses in his Financial Statement in relation to the children inappropriately for his spouse maintenance claim.
In any event, the wife submits that she has no capacity to meet an award for ongoing spousal maintenance. She submits that she will have the ongoing care of the children and be financially responsible for them, including paying private school fees. The wife also submits that there should be a conclusion to the financial matters.
It is the husband’s submission that the wife’s expenses suggest a high standard of living commensurate with her high weekly earnings. He submits that the wife’s Financial Statement with sworn expenses totalling $1,885 per week, as well as data obtained from the wife’s credit card, establish that the wife has a capacity to meet the orders sought by the husband for spouse maintenance. The wife, given that she will most probably have to borrow the money which it is proposed that she pay to the husband, will have ongoing costs associated with that funding.
The husband submits that the marriage was a long one, and he seeks support at a level which will have a negligible impact on the wife’s overall standard of living for a limited period of three years. He submits that having regard to the 20 year duration of the relationship, the limited period of maintenance claimed is appropriate.
In summary, the husband submits that the striking features of this case are:
a)the contrast between the parties’ assets on the one hand and the wife’s long-term high earnings on the other
b)the husband’s low earnings and earning capacity when contrasted with those of the wife
c)the wife’s high spending on discretionary items even at times when she asserts things like, “[Mr Stuart] I have no money” and, “Well, when I fall apart, who is going to look after the children?” and, “I can’t cope with much more pressure [Mr Stuart] this is too much”.
The husband’s submission is that the spouse maintenance order which is sought is appropriate in all the circumstances.
The Court will not make an order for spousal maintenance. The Court has taken into account the evidence of the wife as to her reasonable needs and resources. Whilst the husband does not present the prospect of being able ever to match the income of the wife, the Court is mindful of the allowance made to meet the inferior financial position of the husband. The Court also takes into account that whilst the husband’s present earning capacity is small, he does, on the medical evidence, have some capacity to earn and has conceded that he will seek greater employment than he presently undertakes to an extent consistent with his illness and its demands. He will have also the benefit of the amount ordered to be paid under this judgment.
The Court makes the Orders set forth above.

I certify that the preceding one-hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 9 November 2012.

Associate:

Date: 9 November 2012

[2012] FamCA 936

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