Trevi and Trevi - [2017] FamCA 321

FAMILY COURT OF AUSTRALIA

TREVI & TREVI

[2017] FamCA 321

FAMILY LAW – PROPERTY – final property orders – just and equitable – long marriage of 19 years – contributions during the marriage – where the wife has been the primary carer of the children during the marriage – where the husband made significant financial contributions – where the properties were improved during the course of the marriage – where contributions are assessed as equal – where adjustments made for s 75(2) factors – where the wife is to receive 60 percent of the property pool.

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks spousal maintenance – where the application for spousal maintenance is dismissed.

FAMILY LAW – CHILD SUPPORT – where the wife seeks a departure order for periodic and non-periodic child support – where those applications are dismissed.

Child Support (Assessment) Act 1989 (Cth), ss 116(1)(b), 117, 118, 124, 125
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 74(1), 75(2), 75(2)(o), 79, 79(2), 79(4), 117
Family Law Rules 2004 (Cth)

Babbit & Babbit (2011) 252 FLR 1

Bevan & Bevan (2013) FLC 93-545
Bolger & Headon (2014) FLC 93-575
Calder v Calder [2016] FamCAFC 36
Challen & Challen [2007] FamCA 1292
Charles & Charles [2017] FamCAFC 3
Chorn and Hopkins [2004] FLC 93-204
Ferraro & Ferraro (1992) Fam LR 1
Fields v Smith (2015) FLC 93-638
Grier & Malphas [2016] FamCAFC 84

Gyselman & Gyselman (1992) FLC 92-279
Hallinan & Witynski (1999) FLC 98-009
Hides & Hatton (1997) FLC 92-75

Mallet v Mallet (1984) 13 CLR 605
Marsh & Marsh (2014) FLC 93-576
Omacini & Omacini (2005) FLC 93-218
Stanford v Stanford (2012) 247 CLR 108
Vass & Vass [2015] FamCAFC 51

APPLICANT:

Ms Trevi

RESPONDENT:

Mr Trevi

FILE NUMBER:

MLC

8475

2014

DATE DELIVERED:

18 May 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

30 November 2015, 1, 2, 3 & 4 December 2015,
23, 24, 25, 26, 27 & 30 May 2016, 26 August 2016, 26 October 2016

Husband’s submission filed 15 June 2016
Wife’s submission in response filed 9 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B. Geddes Q.C. and Mr Nehmy

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr T. North S.C. and Ms M. Smallwood

SOLICITOR FOR THE RESPONDENT:

N Lawyers

Orders

THE COURT ORDERS THAT

The husband pay to the wife $1,931,152 on or before 4.00 pm on 18 August 2017.
The husband and wife do all such acts and things and sign all such documents to give effect to these orders, including but not limited to the signing of trustee minutes, rollover requests and related documents, as may be necessary to rollover or transfer the entitlement of the wife in the Trevi Family Superannuation Fund to another complying superannuation fund of the wife's choosing and that for this purpose:
(a)The wife provide to the husband details of her nominated complying superannuation fund within 14 days of the date of these orders;
(b)The rollover or transfer be completed within 28 days of the date of these orders; and
(c)The value of the entitlement of the wife in the Trevi Family Superannuation Fund be calculated as at the date of these orders.
In the event that the property at C Street, Suburb D in Queensland (“the Suburb D property”) has not sold as at the date of these orders then the Interim Orders made 27 May 2016 be discharged and:
BY CONSENT IT IS ORDERED THAT
(a)The parties do all acts and things and sign all documents necessary to sell the Suburb D property and the property be sold forthwith.
THE COURT FURTHER ORDERS THAT
(b)For the purposes of the sale of the Suburb D property, the property be sold by an agent, at a price and upon terms to be agreed between the parties and failing agreement, to be nominated by the President of the Real Estate Institute of Queensland and upon completion of the sale, the proceeds be applied as follows:
(i)To pay the costs, commissions and expenses of the sale; and
(ii)The balance thereafter to be distributed as follows:
A.60 percent to the wife; and
B.40 percent to the husband.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real properties to be received or retained by either party being deemed to be in the possession of that party);
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the husband;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the named owner;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The wife sign all documents, within 14 days of receipt from the husband, and do all things necessary to resign from her position as trustee of and, subject to the terms of this order, release or forfeit any other interest she has in:
(a)The Trevi Family Trust; and
(b)The Trevi Investment Trust.
The wife’s applications for spousal maintenance, departure orders and non-periodic child support be dismissed.
The husband’s application for costs of the hearing on 13 February 2015 be dismissed.
All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8475 of 2014

Ms Trevi

Applicant

And

Mr Trevi

Respondent

REASONS FOR JUDGMENT

Introduction

The husband and wife bring competing applications under s 79 of the Family Law Act1975 (Cth) (“the Act”) for final alteration of their property interests acquired during a marriage of approximately 19 years. The parties were separated for over seven years before trial. There are three children of the marriage. The youngest is aged 17 and completing Year 12. He resides with the parents on an informal equal shared care arrangement. The other two adult children aged 24 and 22 reside with the husband.
The wife also seeks spousal maintenance and a departure order for periodic and non-periodic child support for the youngest child. This is opposed by the husband.
The wife initiated the proceedings. She has been the primary carer of the children and homemaker in a traditional marriage. She is studying part time whilst caring for the youngest child and has not been in paid employment since 2006. The parties share equally in the care of the youngest child. The wife is aged 52 years and has not repartnered.
The husband works full time as a full equity partner in the law firm N Lawyers (“NL”). He worked full time during the marriage and intends to continue to work for the next five to seven years but obviously this cannot be guaranteed. The husband is aged 54 years and has re-partnered.
The real dispute between the parties is concentrated on the extent of the contributions made by each of them, what the parties referred to as the “adjustments” sought by each of them and their future needs and resources. The adoption by the parties of the term “adjustments” creates some difficulty in the discussion of their proposals within the legislative framework. Both parties proposed that these “adjustments” should be included in the pool of assets available for distribution.[1] There was some dispute at the end of the trial about the mechanics of the orders and whether a splitting order of the husband’s benefit under the Trevi Family Superannuation Fund should be made in favour of the wife.
[1] Husband’s written outline of final submissions, par 9-28
The parties separated in September 2008 and during the six years until December 2014, the wife was financially supported and maintained by the husband from his earnings generated by his personal exertion. The parties also received rental income from investment properties.
The most substantial asset comprising property of the marriage was the former matrimonial home which was a 4,000 square metre corner property at E Street, Suburb F (“E Street”) where the family lived. It was purchased by the parties in late 2000 for approximately $2 million plus stamp/transfer duty and other ancillary costs.[2] The parties significantly improved the property and it was sold in July 2014 for $10.79 million.
[2] Wife’s trial affidavit filed 14 October 2015, par 29.6.2
A consent order was made on 12 December 2014 which provided the wife with a part property settlement of $2,616,400 from the proceeds of sale of the E Street property. The wife used these funds to purchase a property at G Street, Suburb H (“the Suburb H property”) where she now lives. The property is unencumbered.
The parties agreed that it is just and equitable for orders to be made for the alteration of their property interests recognising that a part property settlement has already been made. It was ultimately agreed that the part property settlement of $2,616,400 received by the wife should be added back to the pool of joint property and taken into account as property received by the wife and the value of the wife’s Suburb H property should be removed from the pool of assets of the property of the marriage.
The real property comprising the property of the marriage is registered in the name of the husband and three properties were purchased by the husband post separation. One of the properties purchased by the husband post separation is P Street, Suburb I (“the Suburb I property”) which is a block of eight units or apartments and four units out of eight from the block are registered with the trustee of his new self-managed superannuation Fund, the Mr Trevi Superannuation Fund. The husband is the sole beneficiary of that fund. The other four units are registered personally in his name.
It was agreed that the husband retain the Suburb I property but because four of the eight apartments or units are held for the Mr Trevi Superannuation Fund the parties are in dispute about the value of the husband’s interest in this property for the purposes of determining the non-superannuation joint pool of assets. For the purposes of determining the non-superannuation joint pool of assets, the husband maintained that the value for the whole of the Suburb I property of $3,900,000 should be used and the wife maintained that the value should be $2,200,000, being half the value of the block which are the four units held personally by the husband.
The parties are also in dispute about the value of the liability for the Suburb I property for the purposes of determining the non-superannuation asset pool.
Just before separation the parties purchased a property in June 2008 at C Street, Suburb D (Qld) (“the Suburb D property”) for $2.08 million which cost approximately $2.4 million, allowing for finance and stamp duty and other costs. This property is registered in the name of the husband and is unencumbered.
During the course of the trial the parties were in dispute about which party should retain the Suburb D property but ultimately agreed to commence negotiations for a sale.
On the last day of the trial a minute of an agreement between the parties was produced and an interim consent order made providing for the sale of that property for not less than $1.4 million without prior written consent of the wife or further order of a court. The interim consent order also provides that in the event that the Suburb D property remains unsold by the date of the judgment there be an order for its sale.
The parties agreed that it was appropriate after allowing for selling costs and agent’s fees to distribute the net sale proceeds of the Suburb D property in accordance with whatever percentage entitlement was determined by the Court as between the parties overall.[3]
[3] Transcript of proceedings, 30 May 2016, p 374.
The parties by agreement ascribed a notional value of $1,400,000 to the Suburb D property for the purpose of considering the practical effect of the property settlement overall before turning to the questions about spousal maintenance and child support.
In the event that the property was sold before delivery of judgment, the parties agreed to notify the court. The Suburb D property was not sold at the time of delivery of judgment.
During the course of the trial, with the exception of the Suburb D property, the parties agreed that the husband should retain all the real property registered in his name and held by the Mr Trevi Superannuation Fund including his interest as tenant in common in his investment property in Suburb Q. The parties were in agreement as to the value of the properties, with the exception of the dispute about ownership of the four units comprising the Suburb I property. The parties agreed that the wife retain the Suburb H property that she purchased after receiving the part property settlement. It was agreed that the husband retain responsibility for all of the liabilities.
It was agreed that each party retain the motor vehicles in their possession and all other property in the possession of each party (including choses-in- action) at the date of the orders and monies standing to the credit of the parties in any joint bank account are to become the property of the husband. There is an agreed amount of $1,781 in the joint account for the Trevi Investment Trust. It was also agreed that the husband should retain his shares in “Company R” but the value was in issue.
It was agreed that the motor vehicles in the possession of the husband are valued at $237,500. The husband did not agree with the only evidence in the trial of the value of the wife’s motor vehicle. This was a valuation of $40,000 from a jointly instructed single expert certified practising valuer Mr S in an affidavit filed 27 November 2015. This witness was not required for cross-examination. I accept this evidence of the valuation of the wife’s vehicle and find that the value of the vehicle she is to retain is $40,000.
The parties are joint trustees of the Trevi Family Superannuation Fund in which they each have individual member accounts. The husband is the sole beneficiary of the Mr Trevi Superannuation Fund and the wife is a beneficiary of the Westpac Lifetime Superannuation fund.
There were no taxation issues anticipated or raised by any of the parties and no expert evidence adduced regarding the husband’s post separation taxation minimisation strategy.

The wife’s application

In written closing submissions the wife claims that the net “adjusted” asset pool of the parties including superannuation should be found to be approximately $8,488,586 (excluding the value of the Suburb D property).
The wife’s case is that the contributions of the parties to the property of the marriage should be assessed as being equal. The wife advanced alternative positions and in written final submissions she sought an assessment of 15 per cent in her favour for factors under s 75(2) of the Act and a further 5 per cent in her favour under s 75(2)(o) of the Act, in the event that the “adjustments” she sought were not accepted. Ultimately in written closing submissions her Minute of Proposed Orders seeks the following:
…to effect an overall division of the property and superannuation interests of the parties or either of them in the proportion of 65 per cent (plus such further adjustment as the court deems appropriate in relation to the husband’s purchases of the properties at [W Street, Suburb Q, P Street, Suburb I, T Street, U Town] and the prestige motor vehicle, pursuant to section 75(2)(o) or otherwise) to the wife and 35 percent (less such further adjustment as the court deems appropriate in relation to the husband’s purchases of the properties at [W Street, Suburb Q, P Street, Suburb I, T Street, U Town] and the [prestige] motor vehicle, pursuant to section 75(2)(o) or otherwise ) to the husband.
It is the wife’s case that post separation the husband purchased property which resulted in a decrease in the asset pool of the parties. This is denied by the husband. In closing submissions the wife sought “adjustments” to the joint property pool amounting to $587,032. These comprise:
·   $464,530 for the husband’s unilateral purchase of the Suburb I property;
·    $46,254 for the husband’s unilateral purchase of the Suburb Q property;
·    $21,248 for the husband’s unilateral purchase of the U Town property; and
·    $55,000 for the husband’s unilateral purchase of a prestige motor vehicle which decreased in value as at the date of the trial.

Wife’s application for spousal maintenance

The wife also brings an application for spousal maintenance depending upon whether the “adjustments” that she seeks to the asset pool are accepted.
She seeks the following orders:
4.In the event:
4.1 The court accepts the submissions on behalf of the wife as to adjustments to the asset pool as contained in the submissions filed 27 May 2016 the husband pay the wife by way of periodic spousal maintenance the sum of $1683 per week commencing 7 days after the date of these orders until 31 December 2017; or
4.2 The court does not accept the submission on behalf of the wife as to adjustments to the asset pool contained in the submissions filed 27 May 2016 the husband pay to the wife $1683 per week by way of periodic spousal maintenance, payable from 7 August 2015, being the date of filing of the wife’s further amended initiating application, until 31 December 2017, and that any arrears now accrued under this order be paid to the wife within 7 days of the date of these Orders.
The husband opposes the wife’s spousal maintenance application on the basis that she has made “extravagant and exaggerated claims” for weekly expenses and cannot establish a basis for spousal maintenance on or after her receipt of property settlement. The husband maintains that the wife is capable and resourceful, has been separated since 2008 and is “yet to utilise her earning capacity from her own exertion”.[4]

Wife’s application for a departure order pursuant to ss 116(1)(b) and 117 of the Child Support (Assessment) Act1989 for periodic child support for the youngest child and an order pursuant to s 124 of the Child Support (Assessment) Act1989 by way of non-periodic child support

[4] Husband’s written outline of final submissions, par 48 and par 51.

The wife also brings an application for a departure order in respect of periodic child support for the youngest child and an order for non-periodic payments.
The husband deposed in his latest Financial Statement that he is paying $182 weekly for Child Support. The wife deposed in her latest Financial Statement that she receives Child Support for the youngest child estimated at $202 weekly.
She seeks the following orders:
5.There be a Departure Order for any eligibility for child support assessment for the child [J], born … 1999 (“the child”), whereby the husband pay:
5.1    Private school fees at [X School] as struck and when due and owing, including tuition fees and any levies, building funds and like expenses;
5.2    The cost of uniforms, books, school shoes, camps, excursions and/or tutoring;
5.3    The cost of extracurricular activities;
5.4    Private health insurance at the current level of cover;
5.5    Gap medical and dental (including orthodontic) expenses; and
5.6    Periodic child support to the wife in a sum of $752 per week varied by the changes in the consumer price index for Melbourne as at one July of each year, to be payable from 25 May 2015 and that any arrears now accrued under this Order, less any payments made by the husband pursuant to the child support assessment during that period, be paid to the wife within 7 days of the date of these Orders.

The husband maintains in response to the wife’s child support departure order application that the wife will be in a position to earn an income upon receipt of her property settlement, greater than the amount forming a foundation for the existing assessment for periodic child support and therefore no order should be made.
The husband maintains that he proposes to continue to support the youngest child as he has done historically by making all financial payments for his education and schooling expenses, and it is therefore unnecessary for any order to be made requiring him to make non-periodic child support payments to the wife.

The husband’s application

The husband’s case is that the contributions of the parties to the property of the marriage should be assessed as being 60 per cent in his favour. In written closing submissions the husband claimed at paragraph 5 that of the asset pool which he valued at $9,911,087, the wife should receive 45 per cent for factors under s 75(2) of the Act.
The husband proposes that the wife receive 45 per cent of the net “adjusted” total pool of property inclusive of superannuation. The disputed “adjustments” that he seeks in his favour amount to $913,772 comprising payments to the wife from joint property by interim court orders for $843,772 and $250,000 less a notional amount of $180,000 for living expenses. In closing submissions he also sought that the wife’s legal fees paid from joint funds be taken into account.
The husband proposes that the wife retain for her sole use and benefit the unencumbered Suburb H property. The wife’s case is that this is valued at $2,480,000. The husband did not agree with this valuation but the Suburb H property is taken into account in the part property settlement of $2,616,400 received by the wife.
The husband proposes that the wife also retain the monies held in her bank accounts, and her motor vehicles. In his application for orders sought, the husband proposes that he pay to the wife the sum of $140,777.
He proposes to pay to the wife 45 per cent of the net proceeds of sale of the Suburb D property taking into account the sale costs and commissions and to retain the residue on trust until such time as she receives all monies due to her and that in the event that he defaults on the payment of the sum due to her by the due date, that his share of the proceeds of sale of the Suburb D property be paid to the wife sufficient to discharge any sum outstanding to her.
The husband’s proposals concerning superannuation changed at the end of the trial. Ultimately when clarification was sought at the conclusion of the trial he proposed that a splitting order be made for a base amount of 45 per cent of his benefit in the Trevi Family Superannuation Fund to be rolled into a fund for the wife. This would amount to $200,173. The parties have separate benefits under the Trevi Superannuation Fund and agreed that the total value of that fund for the purposes of the trial is approximately $444,829. (This is discussed in more detail further in these reasons.)
The husband proposes that each party retain for their sole use and benefit any other superannuation in which they have an entitlement. He proposes to retain superannuation in the Mr Trevi Superannuation Fund on his valuation of approximately $181,242. There was a disagreement about the value of the husband’s Mr Trevi Superannuation Fund established post separation which is outlined below.

BACKGROUND

The parties agreed with the events specified in a chronology contained in Annexure A of the wife’s Outline of Case.
I am satisfied on the balance of probabilities on all of the evidence of the following facts.
The wife is aged 52 years and the husband is aged 54 years and both are in reasonable health. The wife has a Bachelor degree and the husband has a number of tertiary qualifications.
The parties were married in 1989 and separated in September 2008. When they married the husband was employed in a professional capacity and the wife was employed in administration.
The parties have three children:
K born in 1993;
L born in 1994; and
J born in 1999.
When the parties separated they continued to live on the same property at E Street but the husband moved from the principal house into the summer house on the same property. The wife continued to live in the main house on the property with the three children. At this time K was aged 15, L was aged 13 and J was aged nine.
The husband was employed full time throughout the marriage.
The husband now lives with the two older adult children at 1 B Street, Suburb A (“1 B Street”) which is a property registered in his name and purchased during the marriage in December 1992.
There is an equal shared care arrangement between the parties for the care of the youngest child.
The evidence of the wife was that she intends to invest in properties and renovate and decorate them depending on the outcome of the property settlement proceedings. She is considering completing a Diploma which would require another year of full-time study after which she might qualify for employment.
There is a large disparity in income between the parties. The husband’s total average weekly income in accordance with his latest financial statement is $29,980 and his total weekly personal expenditure is $26,189.
The wife’s average weekly income in accordance with her latest financial statement is estimated at $317 and her total weekly personal expenditure is estimated at $2,835.
When they married the parties began living together at Y Street, Suburb Z (“Y Street”) which they had purchased in late 1988.
During the marriage the parties purchased investment properties and utilised negative gearing to minimise the husband’s taxation burden, whilst prioritising the repayment of non-deductible debt.
In June 1992 the parties purchased an investment property at AA Street, Suburb BB (“AA Street”) which they sold in 1993 about the same time that the first child K was born.
In April 1993 the parties settled the purchase of 1 B Street, and the sale of Y Street. The parties began living at 1 B Street and later moved out of the property and tenanted the property as part of the negative gearing strategy.
The second child, L was born in 1994. In 1996 the parties purchased 3 B Street, Suburb A (“3 B Street”) as an investment property and made improvements carrying out minor renovations and works. Both parties contributed to the improvements. The husband polished the floor boards and tidied the garden. The wife engaged and supervised tradespeople to paint and carpet the property. Further renovations were made to improve the property.
In 1997 the parties purchased 51 O Street, CC Town (“O Street”). The O Street property was purchased for $262,000 including costs and sold in October 2000 for $530,000.
The husband became a partner in the law firm NL on 1 January 1997 and became a full equity partner the firm in 2004.
The third child was born in 1999 and will complete his final year of secondary school in December 2017.
The cost of the purchase of the E Street property and renovations were funded by the proceeds of sale of O Street and bank borrowings. The main renovations were completed over about one year and during that time the family lived in an old house in front of the main house on the same property.
The parties continued to improve the property over the next few years and engaged tradespeople to carry out significant landscaping works including replacing a tennis court, replacing the pool, improving the garage, driveway and renovating an existing building as a “summer house”. The husband also contributed to the improvements with his own labour. The E Street property was placed on the market for sale in late 2011.
The property remained the family home until it was sold in July and settled in December 2014. The sale was preceded by a three year marketing period during which the wife and children lived in the E Street property. Both parties used their best endeavours to improve the property and prepare it for sale. This included improvements to the garden by four gardeners.
Before separation and in June 2008 the parties purchased the Suburb D property in Queensland for $2.4 million including costs. The property is registered in the name of the husband and is unencumbered. I accept the evidence of the husband that the income from that property over the 2014 and 2015 financial years after payment of the managing agent’s commissions and expenses, but ignoring finance costs has been $38,533 on average ($44,993 in 2015 and $32,072 in 2014). As outlined previously, at trial the parties agreed to a notional value of $1.4 million for this property which is on the market for sale.
In March 2011, the husband used $281,000 from the parties’ joint account for the deposit on the purchase of a property at DD Street, Suburb EE (“DD Street”) by mutual agreement so that he could live and spend time there with the children. The property was purchased for approximately $2,967,181.28 which included stamp duty and costs. The amount of $2,686,181 was borrowed to pay for the stamp duty and the balance of the purchase price. The husband improved that property spending about $15,000 and moved from the summer house at the E Street property into the DD Street property in June 2011. The DD Street property was sold in early 2014 and settled on 27 May 2014. The difference between the net sale proceeds and the loan amounted to a loss of approximately $145,255.90.
In early 2013 L, who at that time was aged 18, moved to live with the husband at the DD Street property. When the husband sold the DD Street property in early 2014 he moved to 1 B Street in May 2014 and K moved to live with the husband in October 2014.
In September 2014 the husband purchased a prestige motor vehicle. The parties ultimately agreed that the value of that vehicle at the time of the trial had depreciated by approximately $55,000.
The parties sold the E Street property for $10,799,000 in July 2014. From the proceeds of sale, after payment of the costs of sale, the parties paid all of their liabilities.
On 19 September 2014 the wife commenced the proceedings by filing an Initiating Application in this Court. The husband filed a Response on 31 October 2014.
What was loosely referred to in the trial as “a financial separation” of the parties occurred on the day of settlement of the sale of E Street on 12 December 2014 when interim orders were made by a Registrar by consent providing the wife with an interim property distribution of $2,616,400. The wife used these funds, amongst other things, to purchase the Suburb H property where she now resides. That property is unencumbered. Counsel for the wife maintained that the property was valued at an agreed figure of $2,480,000 but the husband in submissions appeared to dispute it. I have made findings about the value of that property later in these reasons.
On 12 December 2014 interim consent orders were made amongst other things effecting the removal of the wife as an authorised signatory on various bank accounts. Paragraph 4 of those consent orders provided for the proceeds of sale of the E Street property to be paid for conveyancing costs, selling costs, $2,368,400 for the balance of the part property settlement to the wife, the discharge of certain debts amounting to approximately $4,563,000, a payment of $31,600 to the wife and the balance then remaining to be paid to each of the parties to an account nominated by each of them being divided 50 percent. Each of the parties received $812,172.62. The sum of those amounts paid to the wife being $812,172 and $31,600 is $843,772 which is an “adjustment” sought by the husband.[5]
[5] Exhibit C3, Item 21
The wife has financed repairs and renovations valued at $180,873 to the Suburb H property from the $812,172 she received by way of the consent orders.
On 15 January 2015, the husband unilaterally purchased a block of apartments or units at P Street, Suburb I (“the Suburb I property”) for the total cost of approximately $4,300,452. This was funded by a deposit of $400,000 and loans totalling approximately $3,900, 452. Ultimately the husband settled the purchase of four units (units 1, 4, 6 and 8) in his own name. He established the Mr Trevi Superannuation Fund and nominated the trustee of the fund as the purchaser of the other four units (units 2, 3, 5 and 7). For the purposes of the trial balance sheet in Exhibit C3 the parties agreed that the value of the eight units comprising the Suburb I property was $3,900,000 but there was a disagreement about the value of the four units held by the Mr Trevi Superannuation Fund for determining the non-superannuation assets of the parties.
Prior to the trial the wife lodged caveats on three properties in Suburb A registered in the name of the husband and an interim hearing regarding the husband’s application to remove those caveats was heard on 13 February 2015. Judgment was reserved and on 2 March 2015 orders were made for the removal of those caveats and the wife was restrained from lodging any further caveats on the titles pertaining to those properties until further order and reasons for judgment delivered.
I accept the evidence of the husband that at auction on 7 March 2015, his partner Ms FF purchased a property at W Street, Suburb Q. The husband loaned his partner $60,000 for the deposit on that property and in April 2015 he was nominated as co-purchaser. I accept the evidence of the husband that his partner repaid him $30,000 for her share of the deposit and that the property is held as tenants in common. The value of the husband’s interest in that property was agreed between the parties and valued at $300,000. The liability in respect of that property was agreed at $346,254 for the purposes of the trial.[6]
[6] Exhibit C3, Item 26; Wife’s written closing submissions, p 3, Item 21 of Balance Sheet.
On 29 July 2015 an interim order was made refusing the wife’s interim application for spousal maintenance. The reasons for judgment were delivered the same day.
The trial commenced on 30 November 2015 and continued from 1 to 4 December 2015 dealing with pre-trial objections where rulings were made as to the admissibility of evidence. The trial was adjourned (part-heard) to 23 May 2016 for a further five days.
On 15 December 2015 I made consent orders in chambers that provided for the husband to pay the wife $250,000 by 4pm on 15 December 2015 (with the characterisation of such payment to be argued at trial).
At a pre-trial mention on 19 April 2016 orders were made granting the wife leave to withdraw her application for adult child maintenance in relation to the parties’ adult son L.

The Evidence

Pre-trial ruling

The husband proposed to rely on the evidence of a dietician who had never met the children. The dietician had taken instructions from the husband only and relied on photographs of the children and a supermarket shopping list. The husband proposed to adduce evidence from this witness to support a case that the children were obese because the wife had not prepared nutritious food and provided the children with “junk food”. The husband argued that this evidence was relevant to the quality of the wife’s contribution in the capacity of homemaker or parent.
The evidence of the dietician was ruled inadmissible in the trial. The written ex tempore reasons for ruling that evidence inadmissible were published on 2 December 2015 and need not be repeated here.

Standard of proof

In determining the facts, I have applied s 140 of the Evidence Act 1995 (Cth), which is the civil standard of proof. Where I have made findings, I am satisfied that the facts have been proven on the balance of probabilities.

Evidence in the trial

The documents relied upon by the parties are listed in Annexure A. Included in those documents were affidavits from expert witnesses who were not ultimately cross-examined.
The wife and husband were cross-examined at trial.
The trial was concluded on 30 May 2016 and judgment reserved. However on 1 July 2016 the husband filed an Application in a Case supported by two affidavits seeking leave to file and rely on a 25 page document (titled Factual Anomalies in Applicant’s Wife’s Written Closing Submissions Dated 30 May 2016). A contested hearing on 26 August 2016 resulted in leave being granted for the husband to rely on this document as forming part of his Reply in the trial and the wife given an opportunity to file a limited written response to any matters of law which on her case might be asserted. The reasons for judgment in that hearing were delivered and published on 26 October 2016. The wife took the opportunity to respond and filed a document (titled Submissions on Behalf of the Wife in Response to Husband’s Factual Anomalies Document filed 10 June 2016) on 9 November 2016.
I have read all of the affidavit material, the husband’s Factual Anomalies document, the wife’s submissions in response and the written closing and final submissions of both parties. I have listened to all of the oral evidence and submissions. I have considered the Exhibits. It should not be assumed that because a particular piece of evidence is not referred to in these reasons that I have not considered it.

Exhibit C3 Balance Sheet

During the trial the parties utilised a Balance Sheet as a working document which became Exhibit C3 at the conclusion of the trial. This document identified the differences between the parties as to the value of the assets and liabilities and what disputed items were argued for “adjustment” between the parties.
I have examined that document and noted that there is an arithmetical error under the “Total net assets including superannuation per wife’s adjusted pool” which was not apparent to the parties at the time that it was tendered. I find that the correct figure is $9,996,005 instead of $10,061,929.
I am referencing this document as follows in order to explain the position of the parties during the trial. (The only change to the document is the arithmetical error noted).

Ownership		Description	Wife / de facto partner's value	Husband / de facto partner's value
ASSETS
1.		Husband	1 & 2 B Street, Suburb A	$ 2,700,000	$ 2,700,000
2.		Husband	3 B Street, Suburb A	$ 1,100,000	$ 1,100,000
3.		Husband	C Street, Suburb D	$ 1,125,000	$ 1,125,000
4.		Husband	P Street, Suburb I	$ 3,900,000	$ 3,900,000
5.		Husband	W Street, Suburb Q	$ 300,000	$ 300,000
6.		Husband	T Street, U Town	$ 365,000	$ 365,000
7.		Wife	G Street, Suburb H	$ 2,480,000	-
8.		Husband	Bank accounts	$ 449,705	$ 449,705
9.		Wife	Bank accounts	$ 215,228	-
10.		Husband	Motor vehicles	$ 237,500	$ 237,500
11.		Wife	Motor vehicles	$ 40,000	-
12.		Husband	NL additional fixed capital	$ 400,000	$ 341,349
13.		Husband	NL other accounts	$ N/K	$ NIL
14.		Husband	Shares in “Company R”	$ 10,510	$ 4,500
15.		Joint	Trevi Investment Trust	$ 1,781	$ 1,781
16.		Joint	ASG Fund	$ 23,229	$ NIL
Total	$ 13,347,953	$ 10,524,835

ADJUSTMENTS SOUGHT
Post separation purchases of real properties
17.	Husband	Adjustment sought by wife for decrease in asset pool arising by virtue of the husband’s unilateral purchase of Suburb I property	$ 464,530	$ NIL
18.	Husband	Adjustment sought by wife for decrease in asset pool arising by virtue of the husband’s unilateral purchase of Suburb Q property	$ 35,889	$ NIL
19.	Husband	Adjustment sought by wife for decrease in asset pool arising by virtue of the husband’s unilateral purchase of U Town property	$ 21,248	$ NIL
20.	Wife	Adjustment sought by husband for part property settlement pursuant to orders of 12 December 2014	-	$ 2,616,400
21.	Wife	Adjustment sought by husband for further cash received by wife pursuant to orders of 12 December 2014	-	$ 843,772
22.	Wife	Adjustment sought by husband for further cash received by wife pursuant to orders of 14 December 2015	-	$ 250,000

Post separation purchases of motor vehicles
23.	Husband	Adjustment sought by wife for decrease in asset pool arising by virtue of the husband’s unilateral purchase of the prestige motor vehicle	$ 55,000	$ NIL
Other adjustments
24.	Wife	Adjustment to allow for expenditure by wife on her own maintenance	-	($ 180,000)
Total	$ 576,667	$ 3,530,172

LIABILITIES
25.		Husband	Debt associated with Suburb I property	$ 4,078,008	$ 4,078,008
26.		Husband	Debt associated with Suburb Q property	$ 346,254	$ 346,254
27.		Husband	Debt associated with U Town property	$ 123,984	$ 123,984
28.		Husband	Overdraft	$ 65,924	$ 65,924
29.		Husband	Tax assessment	$ NIL	$ 158,173
Total	$ 4,548,246	$ 4,772,343

SUPERANNUATION
Member		Name of Fund		Type of Interest	Wife / de facto partner's value	Husband / de facto partner's value
30.		Husband	Trevi Family Superannuation Fund		SMSF	$ 407,024	$ 444,829
31.		Wife	Trevi Family Superannuation Fund		SMSF	$ 75,987	$ NIL
32.		Wife	Westpac Lifetime Superannuation		Accumulation	$ 2,352	$ 2,352
33.		Husband	Mr Trevi Superannuation Fund (see notes)		SMSF	$ 200,192	$ 181,242
Total	$ 685,555	$ 628,423
Total net assets including superannuation per husband’s adjusted pool				-	$ 9,911,087
Total net assets including superannuation per wife’s adjusted pool				$ 10,061,929	-
[The correct figure is $9,996,005]

FINANCIAL RESOURCES
Ownership		Description		Wife / de facto partner’s value	Husband / de facto partner’s value
34.		Husband	Potential NL Early Retirement Scheme (“ERS”) entitlement		$ 2,250,000	$ NIL
Total	$ 2,250,000	$ NIL

Notes

Item No

1 to 7

10 to 11

Per single expert valuations

Includes current account and profit account

17 to 20

Wife is prepared to concede the adjustment as against her at item 20, if the same kind of adjustments at items 17 to 20 above are allowed as against the husband. Otherwise she does not concede the adjustment.

Wife’s adjustment sought is calculated as follows:

Estimated total purchase cost (including contract price, stamp duty and other costs)	$4,364,530
Single expert valuation	($3,900,000)
TOTAL	$464,530

Stamp duty and other costs associated with the purchase of Suburb Q property

Stamp duty and other costs associated with the purchase of U Town property

20 to 22

These three amounts are interim distributions made to the wife since the parties commenced living financially independently on 12 December 2014, out of the assets which existed at that time

Difference between purchase price ($230,000) and single expert valuation ($175,000)

30 to 31

As the current value of individual member accounts is unknown, the husband has included the full value of the fund in item 30, for ease of reference

Wife’s figure excludes value of 4 apartments at P Street Suburb I and associated debt and adjustments, accounted for in items 4, 17 and 25

Item 3 is the Suburb D property which is on the market for sale. By the conclusion of the trial the parties ascribed the notional value of $1,400,000 to the Suburb D property as previously outlined.

Balance sheet from wife’s written closing submissions

During closing submissions counsel for the wife produced in a written submission a table which he contended the Court should find on the evidence. This table is as follows:

Ownership		Description			Wife / de facto partner's value	Husband / de facto partner's value
ASSETS TO BE RETAINED
1. 1		Husband	1 & 2 B Street, Suburb A			$ 2,700,000	$ 2,700,000
2. 2		Husband	3 B Street, Suburb A			$ 1,100,000	$ 1,100,000
3. 3		Husband	P Street, Suburb I			$ 2,200,000	$ 3,900,000
4. 4		Husband	W Street, Suburb Q			$ 300,000	$ 300,000
5. 5		Husband	T Street, U Town			$ 365,000	$ 365,000
6. 6		Husband	Bank accounts			$ 449,705	$ 449,705
7. 7		Husband	Motor vehicles			$ 237,500	$ 237,500
8. 8		Husband	NL additional fixed capital			$ 341,349	$ 341,349
9. 9		Husband	NL other accounts			$ N/K	$ NIL
10. 0		Husband	Shares in “Company R”			$ 10,510	$ 4,500
11. 11		Joint	Trevi Investment Trust			$ 1,781	$ 1,781
12. 12		Joint	ASG Fund			$ 23,229	$ NIL
ASSETS TO BE SOLD
13.		Husband	C Street, Suburb D			$ NK	$ NK
Total	(Plus value of Suburb D property to be sold)			$ 7,729,074	$ 9,399,835
ADJUSTMENTS SOUGHT
Post separation purchases of real properties
14.		Husband	Adjustment sought by wife arising by virtue of the husband’s unilateral purchase of Suburb I property		$ 464,530		$ NIL
15.		Husband	Adjustment sought by wife arising by virtue of the husband’s unilateral purchase of Suburb Q property		$ 46,254		$ NIL
16.		Husband	Adjustment sought by wife arising by virtue of the husband’s unilateral purchase of U Town property		$ 21,248		$ NIL
Payments received by the wife
17. 7		Wife	Part property settlement pursuant to orders of 12 December 2014		$ 2,616,400		$ 2,616,400
18.		Wife	Adjustment sought by husband for further cash received by wife pursuant to orders of 12 December 2014		NIL		$ 843,772
19.		Wife	Adjustment sought by husband for further cash received by wife pursuant to orders of 14 December 2015		NIL		$ 250,000

Post separation purchases of motor vehicles
20.	Husband	Adjustment sought by wife for decrease in asset pool arising by virtue of the husband’s unilateral purchase of the prestige motor vehicle	$ 55,000	$ NIL
Other adjustments
21.	Wife	Adjustment sought by husband to allow for expenditure by wife on her own maintenance	NIL	($ 180,000)
Total	$ 3,203,432	$ 3,530,172

LIABILITIES
22. 2		Husband	Debt associated with Suburb I property	$ 2,300,008	$ 4,078,008
23.		Husband	Debt associated with Suburb Q property	$ 346,254	$ 346,254
24.		Husband	Debt associated with U Town property	$ 123,984	$ 123,984
25.		Husband	Overdraft	$ 65,924	$ 65,924
26.		Husband	Tax assessment	$ 158,173	$ 158,173
Total	$ 2,994,343	$ 4,772,343

SUPERANNUATION
Member			Name of Fund		Type of Interest	Wife / de facto partner's value	Husband / de facto partner's value
27.			Joint	Trevi Family Superannuation Fund		SMSF	$ 444,829	$ 444,829
28.			Wife	Westpac Lifetime Superannuation		Accumulation	$ 2,352	$ 2,352
29.			Husband	Mr Trevi Superannuation Fund (see notes)		SMSF	$ 103,242	$ 181,242
Total	$ 550,423	$ 18,423
Total net assets including superannuation per husband’s adjusted pool (Plus Suburb D property to be sold)				-	$ 8,786,087
Total net assets including superannuation per wife’s adjusted pool (Plus Suburb D property to be sold)				$ 8,488,586	-

FINANCIAL RESOURCES
Ownership		Description		Wife / de facto partner’s value	Husband / de facto partner’s value
30.		Husband	Potential NL Early Retirement Scheme (“ERS”) entitlement		$ 2,250,000	$ NIL
Total	$ 2,250,000	$ NIL

As to the items in dispute:

Item No

Wife's figure is consistent with the registration of the units in the husband's name being four units at Suburb I. Per single expert valuation, the figure given represents the combined value of the four units. The husband's figure represents the value of all eight units which comprise Suburb I disregarding legal ownership

Includes current account and profit account. No evidence was put before the court as to the value of these accounts.

Wife has used balance sheet value of shares in Company R. Husband’s evidence is that $4,500 represents “par value”. No reason was put by the husband for not using a balance sheet value.

The wife has continually asserted in her various financial statements there are funds held in the ASG account. The husband’s only comment on this was an offhand comment that he thought the funds would be used up in paying for the children’s education. This does not however mean that the funds do not currently exist.

The parties have agreed this property will be sold and the proceeds held in trust and distributed in accordance with judgment in this matter. The parties have agreed on a consent order in this regard

Wife’s adjustment sought is calculated as follows:

Estimated total purchase cost (including contract price, stamp duty and other costs)	$4,364,530
Single expert valuation	($3,900,000)
TOTAL	$464,530

Stamp duty and other costs associated with the purchase of Suburb Q property

Stamp duty and other costs associated with the purchase of U Town property

17 to 19

These three amounts are distributions made to the wife since 12 December 2014/ Item 17 is by consent order, part property settlement. Items 18 and 19 were subject of orders which stated that they are to be characterised by the trial judge.

Difference between purchase price ($230,000) and single expert valuation ($175,000)

22 & 29

Figures per the husband’s financial statement filed 13 May 2016 represent the Mr Trevi Superannuation Fund holding:

Cash/Shares $181,242

Property (Units 2,3,5,7 Suburb I) $1,700,000

Debt associated with Suburb I ($1,778,000)

Net Total $103,242

Legal Principles

Section 79 of the Family Law Act 1975 (Cth) (“the Act”) provides for the discretionary alteration of property interests between the parties to a marriage. Under s 79(2) of the Act, an order cannot be made unless the Court is satisfied that, in all the circumstances, it is just and equitable.
The relevant factors under s 79(4) of the Act which must be taken into account in considering what order (if any) should be made are as follows:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage; and
(g)any child support under the Child Support (Assessment) Act1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
In Bevan & Bevan (2013) FLC 93-545 (“Bevan”) at 87,232, the Full Court of this Court considered s 79 of the Act and set out the three fundamental propositions in relation to this section which the High Court of Australia laid down in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). These are as follows:
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements. (original emphasis)
In applying those principles, the parties’ legal and equitable interests in property must first be identified.

The Approach

In Bolger & Headon (2014) FLC 93-575, the Full Court emphasised that

s 79(4) of the Act requires a holistic assessment of the parties’ contributions. The Full Court referred to the authorities and the well-established recognition that s 79 requires the Court to exercise a wide discretion, and not perform a mathematical or accounting exercise. The Full Court cautioned against “over-zealous attention to the ascertainment of the parties’ contributions”.[7]
[7] Bolger & Headon (2014) FLC 93-575 at 79,058, quoting Norbis & Norbis (1986) 161 CLR 513 at 524.
This case involves a post separation period of approximately seven years before trial. The approach I have taken is to consider the contributions of the parties by determining the nature, form and characteristics of all contributions across the whole of the marriage and post-separation. In Marsh & Marsh (2014) FLC 93-576, Murphy J observed at 79,075:
The expression “post-separation contributions” has, of course, been used widely in many authorities within the context of discussions about the assessment of contributions. But, importantly, it is not the fact of separation or when contributions are made that is the delineator. It remains crucial to analyse and weigh that nature, form and characteristics of all contributions across the whole of the period under consideration.
It is not possible to ascribe a mathematical value with any precision to the comparable weight of the differing contributions between the parties and this would be inconsistent with the holistic approach required by s 79.
The Full Court in Ferraro & Ferraro (1992) 16 Fam LR 1 (“Ferraro & Ferraro”) criticised any suggestion that the Court is required to undertake a detailed analysis of the quality of performance of the roles of the parties and, in fact, expressly warned against doing so, noting that assessment of the quality of homemaker contributions is vulnerable to subjective value judgments. The Full Court stated at page [38]:
The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.[8]
[8] Ferraro & Ferraro (1992) 16 Fam LR 1.
Recently in Grier & Malphas [2016] FamCAFC 84, Murphy and Kent JJ at paragraphs 135-136 stated:
What skill or skills a person brings to a relationship which are said to result in the making of money or accumulation of capital is no more or less relevant than the skill set a person brings to a relationship as a homemaker and parent, or as the performer of two roles as a homemaker and parent and income earner. The “skill set” or “potential” of “talent” a party brings to the role or roles which the parties have determined each will undertake in the relationship is, for s 79’s purposes, relevant only to how those attributes manifested themselves in what s79 says must be considered.
It is not a party’s “skill set” which must be considered, but their contributions. Contributions are the product of many things: talent, industry, selflessness and, indeed, luck, to name a few. It is the contributions (in all senses in which that expression is used in s79) that fall for consideration and assessment, not the combination of factors that has created the capacity for the making of those contributions.
At paragraph 139:
It remains the case that, in many property cases litigated in this Court, differing roles are adopted by the parties, with one of the parties predominating the acquisition of capital and income for the family, with the other predominating care of the home and the parties’ child or children and, often, also taking on a second role of earning (and often subsidiary, or lower) income. Importance must be attached to the role of each by reference to the particular circumstances of the case.
At paragraph 141:
When the parties to a relationship earn income and derive capital through corporate/trust structures established primarily to lawfully minimise taxation, the indirect contribution of a party who is not involved in the day- to- day operation of those structures is sometimes overlooked. Yet, the “non-active” party can, in truth, be a significant contributor. This court said more than 30 years ago in Lee Steere and Lee Steere,[9] “it cannot be denied that the splitting of income tax is a direct and immediate financial benefit to the husband and to that extent a direct financial contribution on the part of the wife”…
[9] (1985) FLC 91-626, at 80,078. See also, Dawes and Dawes (1990) FLC 92-108, at 77,725 and Ferraro and Ferraro (1992) 16 Fam LR 1
There are a number of factors to be taken into account under s 75(2) of the Act when considering what, if any, order should be made under s 79. These factors are considered later in these reasons.
At the outset of the trial both counsel urged that a “one pool” approach be adopted which would include net assets and superannuation. They jointly proposed that the superannuation and non-superannuation assets be treated as a whole and that there should be an apportionment determined based on those overall assets of the parties.

It is a matter for the discretion of the court as to which approach the court adopts in determining whether one approach better achieves a just and equitable outcome than the other.
I accept the initial joint proposal of the parties that it is appropriate in this case to determine a just and equitable distribution of property interests on the basis of the overall net assets of the parties including superannuation. Accordingly I have determined the sum of the total superannuation and net non-superannuation assets of the parties before assessing and quantifying what adjustment should be made for s79(4)( e) and finally determining the overall settlement which is just and equitable.
In the balance sheet Exhibit C3 both parties took issue with the “adjustments” that each party proposed to be made to the joint property pool. Both parties proposed that these “adjustments” should be included in the pool of assets available for distribution.
The Full Court in Charles & Charles [2017] FamCAFC 3 referred to Omacini & Omacini (2005) FLC 93-218 accepting Baker J’s analysis in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644 and pointed out at [51] that:
…Adding back is the exception, not the rule and the exception arises where a party, has by a “deliberate act or by economic recklessness reduced the value of assets available for distribution”.
The Full Court noted that the court’s discretion to add back necessarily extends to circumstances where there has been a premature, although not always wanton or negligent distribution of marital assets.[10]
[10] Charles & Charles [2017] FamCAFC 3 at 55.
In Vass & Vass [2015] FamCAFC 51 the Full Court stated at [138] –[139]:
138.There is no error committed per se in adjusting the parties’ actual property interest by calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FamCAFC 116; (2013) FLC 93-545 - or, more particularly, the decision of the High Court in Stanford & Standford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this Court and at first instance may need to be reconsidered.
139.The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of ‘add back’, proper consideration must be given to existing interest in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interest by reference to s 79(4) if the consideration of s 79(2) reveals that it is just and equitable to alter existing interest in property.

Is it just and equitable to make an order?

Both parties are asking the Court to make orders here. There is no dispute between the parties that it is just and equitable under s 79(2) of the Act to make a further order altering the interests of the parties in the property of the marriage. The wife has already received a part property settlement by way of court order on 12 December 2014 and implicit in that order made by consent was that a further alteration should be made.
These parties have had a long marriage and an intermingling of finances. Both parties seek to put an end to that arrangement.
I am satisfied that it is just and equitable to make an order under s 79 of the Act.

Identification of agreed property interests, liabilities and superannuation of the parties

Agreed Assets

The valuation and identification of many of the non-superannuation assets, and liabilities were settled between the parties in Exhibit C3.
As previously outlined, with the exception of the Suburb D property, it was agreed that all assets listed as owned by the husband will be retained by him including the joint Trevi Investment Trust account and that all assets listed as owned by the wife will be retained by the wife.
There is an agreed sum of $1,781 in the Trevi Investment Trust at item 15 of the balance sheet Exhibit C3, which the parties agreed should be retained by the husband. The husband deposed that it is ‘not trading’ and that he has ‘no intention of ever trading with it’. He deposed that it was established solely for the share portfolio acquired in 2006.[11]
[11] Husband’s trial affidavit filed 27 October 2015, par 9.32
Item 12 on the balance sheet Exhibit C3 is the husband’s NL additional fixed capital valued at $341,349. On the basis of the parties’ expert chartered accountant witnesses it was agreed between the parties that the value of the fixed capital contribution loan of $400,000 that the husband paid to NL at the time he became a partner and which is to be refunded to him on retirement would be valued at a notional figure of $341,349 in seven years and that this is a joint asset of the parties. This will only be available to the husband if the fund exists at the time.
The value of the Mr Trevi Superannuation Fund remained in dispute.
I will discuss the disputed assets and liabilities later in these reasons, but the parties agreed that the value and ownership of the non-superannuation assets, liabilities and superannuation of the parties is as follows:

Assets

Owner

$Value (Est)

1 & 2 B Street, Suburb A

Husband

2,700,000

3 B Street, Suburb A

Husband

1,100,000

W Street, Suburb Q

Husband

300,000

T Street, U Town

Husband

365,000

Bank accounts

Husband

449,705

Bank accounts

Wife

215,228

Motor Vehicles

Husband

237,500

NL additional fixed capital

Husband

341,349

Trevi Investment Trust

Joint

1,781

Asset to be sold

C Street, Suburb D QLD

Husband

(Notional) 1,400,000

Liabilities

Debt associated with Suburb Q property

Husband

346,254

Debt associated with U Town property

Husband

123,984

Overdraft

Husband

65,924

Tax assessment

Husband

158,173

Superannuation

Westpac Lifetime Superannuation

Accumulation

Wife

2,352

Trevi Family Superannuation

SMSF

Joint

444,829

I find that I accept those agreed valuations and the ownership of non-superannuation assets and superannuation assets.

Agreed “adjustment”

The parties ultimately agreed that the sum of $2,616,400 that the wife received pursuant to consent orders made 12 December 2014, and which the wife used to pay for the Suburb H property, stamp duty, and related purchase and moving costs, should be brought into account, the order being clear that the monies were received as part property settlement. For the purposes of finding the non-superannuation assets of the parties, the part property settlement paid to the wife of $2,616,400 must be added notionally to the joint property pool of assets. The Suburb H property should not be included in the joint pool of assets as it was purchased with the proceeds of the part property settlement. To include that property in the joint pool of assets would be double counting.
The husband accepted that for the purposes of ascertaining the pool of assets an amount of $180,000 of the funds received by the wife pursuant to interim consent orders has been expended by her in meeting her day-to-day expenses and ought not be included within the pool of assets available for distribution under s 79 of the Act because she has not been engaged in paid employment and “as a consequence could not support herself otherwise”. However, the husband does not acknowledge any particular amount represents the expense of the wife meeting her reasonable weekly needs for the purposes of any ongoing maintenance claim. [12]

Disputed valuation of assets

[12] Husband’s written outline of final submissions, par 12

Value of the wife’s Suburb H property

It was common ground that the part property settlement of $2,616,400 received by the wife would be included in the balance sheet as an asset of the wife. The wife used these funds to purchase the Suburb H property which I have not included in the non-superannuation assets to be altered.
Item 7 in the balance sheet Exhibit C3 is the wife’s Suburb H property which is valued at $2,480,000 and noted as per single expert valuation.
The husband did not attribute any value to the Suburb H property for the purposes of the balance sheet. In his balance sheet of Assets and Liabilities of the Parties in his Amended Case Outline filed 30 November 2015 the husband agreed with the estimated value of $2,480,000.
However the husband in his Factual Anomalies document at paragraph 21 referred to a valuation of the Suburb H property as at 21 April 2015 and complained that the valuation pre-dates the wife’s expenditure on renovations and improvements.
The wife’s submissions in response to this document stated that the value of the Suburb H property is agreed and the husband did not seek an updated valuation.
The value of this asset of the wife in identifying the joint property pool is reflected in the part property settlement paid to the wife which is to be taken into account as property retained by her.

NL other accounts

Item 13 in the balance sheet Exhibit C3 was referred to as the husband’s NL other accounts. The husband attributed a “NIL” value to these accounts the wife described them as “N/K”.
In her trial affidavit, in reference to the husband’s interest in NL, the wife deposed that the husband had accounts with NL including:
40.3A retained earnings account, the balance of which [the husband] has not disclosed…;
40.4A current account, the balance of which the [the husband] has not disclosed…; and
40.5A profit share account.., the balance of which [the husband] has not disclosed…
There was no evidence in the trial about this so I cannot make any finding as to the existence or value of these accounts and I do not propose to include any value for this item in determining the joint non-superannuation assets of the parties.

Husband’s shares in ‘Company R’

Item 14 in the balance sheet Exhibit C3 is the husband’s shares in “Company R”. Company R Pty Ltd is a family business which was established by the husband’s parents but the business is now conducted by his brother. Neither party adduced recent independent evidence of the value of the husband’s shares in “Company R”.
The husband acknowledged an oversight in that he initially did not disclose this shareholding[13] but I do not find that anything turns on this because it was ultimately disclosed. The husband deposed that when his mother died his father told him his mother wanted him to have some of the shares in Company R. The husband deposed that he “never received a dividend or any other direct benefit from the company”.[14]
[13] Husband’s trial affidavit filed 27 October 2015, par 9.33
[14] Ibid.
The husband’s Annexure MAT 31 to his trial affidavit included the Company R Pty Ltd Balance sheet as at June 2014 and the Annual Company Statement. The documents indicated that his shareholding is 4,500 from 84,458 shares issued. The shares are fully paid and beneficially owned.
The Annual Company Statement does not identify the year. The husband also provided financial reports for the company from 2012, 2013 and 2014.
The wife, using this balance sheet value asserted that the value of those shares is $10,510.
In his Financial Statement filed 13 May 2016, the husband deposed that the shares are worth $4,500 and he asserted that this represented “par value”.
In the absence of any other evidence, I find that the value of those shares is in accordance with the most recent balance sheet of the financial report produced by the husband. This is a value of approximately $10,510 which I propose to include in the joint non-superannuation assets of the parties.

Joint ASG Fund

Item 16 in the balance sheet Exhibit C3 is the ASG Fund referred to as a joint asset. This was not referred to by the husband in his affidavit material or latest Financial Statement. The wife asserted in her trial affidavit at paragraph 59.13 that there is an amount of $23,229 in the joint ASG (Australian Scholarship Group) account for the benefit of the children.
The husband’s evidence in cross-examination was that the ASG Fund has been exhausted to pay the university fees for the two older children.
In the absence of any evidence I cannot find that the ASG Fund exists and I do not propose to include any value for this item in determining the joint non-superannuation assets of the parties.

Wife’s bank accounts

Item 9 in the balance sheet Exhibit C3 is the wife’s bank accounts valued at $215,228 which I am satisfied on all the evidence does not reflect any of the proceeds of the part property settlement received by her but reflects the balance of other payments made to her from joint property. The husband did not attribute any value to this item as he proposed that “adjustments” be made for the funds received by the wife by way of interim consent orders which were not characterised.
I propose to include this asset in determining the parties’ joint pool of non-superannuation assets.

The value and associated liability of the Suburb I property and the value of the Mr Trevi Superannuation Fund

At the conclusion of the trial there was a dispute between the parties about the value and associated liability of the Suburb I property and the value of the Mr Trevi Superannuation Fund, for the purposes of determining the joint assets of the parties.
The property at Item 4 in the balance sheet Exhibit C3 is the Suburb I property. The husband in Exhibit C3 attributes a value of $3,900,000 to that property and a liability of $4,078,008.
The wife agreed with the total valuation of the Suburb I property for the 8 units but ultimately argued that only half of that value being $2,200,000 should be ascribed to the four units registered in the name of the husband personally. This is because units 2, 3, 5 and 7 of the Suburb I property were held by the Mr Trevi Superannuation Fund according to Part J of the husband’s latest Financial Statement.
The liability associated with the Suburb I property was agreed at $4,078,008 in Exhibit C3 but the wife maintained in final submissions that for the purposes of determining the net non-superannuation asset pool that the liability should be regarded as $2,300,008 which is the difference between $4,078,008 and $1,778,000 being the figure of secured debt for the Mr Trevi Superannuation Fund deposed to by the husband at Part J in his latest financial statement.
The husband maintained that the whole of the liability should be attributed to the non-superannuation assets.
Item 33 of the balance sheet Exhibit C3 was the Mr Trevi Superannuation Fund. The husband is the sole trustee of this fund. According to the husband’s financial statement filed 13 May 2016, that Fund holds property being “Units 2, 3, 5 and 7 Suburb I” valued at $1,700,000 and is associated with debt of $1,778,000.
In closing submissions, the wife ultimately argued that for the purposes of determining the joint superannuation assets that the value of the Mr Trevi Superannuation Fund is $103,242. The husband attributed a value of $181,242 to the Mr Trevi Superannuation Fund in Exhibit C3.
The husband conceded in cross-examination that on 26 October 2015 he paid $238,000 into his Mr Trevi Superannuation Fund because he needed sufficient capital in the fund to service his debt and to provide a buffer to protect against insolvency. In his latest financial statement at Part J he provided the following figures for the Mr Trevi Superannuation Fund:
Four Units Suburb I   $1,700,000
Cash/Shares  $181,242
Secured Debts  ($1,778,000)
Gross Value  $103,242
I am satisfied on the balance of probabilities that the value of the Mr Trevi Superannuation Fund is $103,242 based on the figures in the husband’s financial statement filed 13 May 2016.
I find that on 15 January 2015 the husband purchased the Suburb I property for $4.1 million plus stamp duty and other costs totalling $200,451. I find that the eight units comprising the Suburb I property are valued at $3.9 million.
I accept the evidence of the husband about this purchase at paragraph 3.15(b) of his trial affidavit filed 27 October 2015 as follows:
It was my intention to borrow the full purchase price, plus stamp duty, for this acquisition. However, as the sworn valuation obtained by the Bank came in at $3.81 million the total borrowings were limited to that amount…. The balance of the purchase price plus costs (including stamp duty of $205,000) which totalled approximately $400,000 was sourced from my partnership drawings since December 2014.
The husband maintained for the purposes of the earlier interim hearing that he had purchased the apartments “to put in place another deductible debt of $4.1 million” to continue the strategy that he has always adopted of negatively gearing properties for taxation benefits.[15]
[15] Transcript of interim proceedings, 13 February 2015, p 18, line 20
In cross-examination the husband confirmed that post-December 2014 he established the Mr Trevi Superannuation Fund.[16] He agreed in cross-examination that he borrowed $2.2 million in his own name to purchase the Suburb I property and the Mr Trevi Superannuation Fund borrowed $1.778 million.[17]
[16] Transcript of proceedings, 26 May 2016, p 265, line 41
[17] Transcript of proceedings, 25 May 2016, p 159, lines 18-32.
In cross-examination the husband agreed that he exercised the right under the contract for the purchase of the Suburb I property to nominate the trustee of the Mr Trevi Superannuation Fund as the purchaser of four of the units.[18]
[18] Ibid, p 158, line 18.
In his trial affidavit responding to the wife’s affidavit the husband deposed:
… It appears to be suggested that the purchase of the [Suburb I] units did not occur as I had initially foreshadowed in my application to have [the wife’s] caveats removed because, ultimately, four of the eight units were purchased into my new superannuation fund, being the [Mr Trevi] Superannuation Fund. I note, however, that I am the sole beneficiary/member of that new fund. There are significant tax advantages in having the units in the superannuation fund because the rental income is taxed at a reduced rate, during the accumulation phase of the fund, and not taxed at all during the pension phase. Therefore, in light of the fact that the acquisition of these units is part of my exit plan from [N Lawyers], it is beneficial to have at least some of them within my superannuation fund.[19]
[19] Husband’s trial affidavit filed 27 October 2015, par 9.42.
The husband conceded in cross-examination that he did not mention in his affidavit filed 28 January 2015 that he was purchasing the Suburb I property in the name of the Mr Trevi Superannuation Fund.[20]
[20] Transcript of proceedings, 25 May 2016, p 157, line 32.
The husband was questioned about whether this strategy he implemented was a new strategy from that deposed in his January affidavit. The husband responded that it is not correct that it is a new strategy “because the strategy primarily involves the deduction of interest against income. And the super fund can do that as well, in terms of deducting interest against its own income”.[21]
[21] Ibid, p 159, lines 7-9.
The husband agreed with counsel for the wife that if he had not used this strategy then he would have received a deduction for “not only the $2.2 million but the $1.778 million borrowed by the superannuation fund” and that he would have therefore received a greater income tax deduction “in his personal name”.[22]
[22] Ibid, p 172, line 25.
The husband confirmed that the four units held by the Mr Trevi Superannuation Fund are presently tenanted and in response to questions from counsel for the wife stated that the rental income services the debt but that it is “line ball” and that some could be “a little bit negative geared or it could be a little bit positive geared”.[23]
[23] Transcript of proceedings, 26 May 2016, p 266, line 30.

Whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order will depend upon similar considerations. In Hallinan & Witynski (1999) FLC 98-009 the Full Court said that the reasons for answering the two questions posed by s 117(1)(b)(ii) need not be elaborate but that a necessary part of the exercise of discretion imposed on the court, is to consider at least broadly the matters referred to in s 117(4) and 117(5) respectively and then make a finding as to satisfaction or otherwise in relation to the relevant matter.
Section 118 of the Assessment Act provides for the orders which may be made under the Division.

Non-periodic child support

Division 5 of Part 7 of the Assessment Act provides for jurisdiction to make an order for non-periodic child support under s 124. It is a discretionary exercise. Section 124(1)(b) provides that the Court may make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts if the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper.
In determining the application the court must have regard to the factors outlined under s 124(2) of the Assessment Act. These include having regard to the administrative assessment in force, any departure determinations and whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or whether the circumstances of the carer are such that taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
In determining whether it would be just and equitable to make an order, the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8) of the Assessment Act. The court must consider the parties and the child for whom the order is sought.
Under s 125(1) of the Assessment Act, if the court makes an order under s 124 the court must state in the order whether the annual rate of child support payable by the liable parent under any relevant administrative assessment is to be reduced.

Conclusion about non-periodic child support

The wife seeks that the husband pay all non-periodic costs associated with the education of the youngest child. At paragraph 125 of her trial affidavit in relation to the departure order, the wife deposed that she spends about $623 per week on the child.
The wife conceded at paragraph 126 of her trial affidavit that the husband has paid most of these expenses since December 2014, including “most significantly school fees and tutoring fees”. The wife deposed that she is seeking an order as a formality “to make it clear that I seek a periodic payment in addition to [the husband] continuing to pay non-periodic expenses”.
Counsel for the wife also argued that if the husband is prepared to make the payment for the additional expenses for the child then there can be no objection by the husband to an order being made in those terms.
History demonstrates that the husband has paid all the expenses for the children including J and given evidence on oath that he will continue to do so. The evidence of the husband of this was also discussed previously. I accept his evidence and there is no evidence that he will not pay those expenses. I therefore consider that there is no basis to make the order sought by the wife for a departure order with respect to non-periodic expenses for J.

Conclusion about periodic child support

I accept the evidence of the wife that she receives Child Support as assessed for the youngest child of approximately $202 per week.
Counsel for the wife in closing submissions argued that a departure order for periodic child support for J in the weekly sum of $752 plus arrears should be made because there are proceedings in Court with respect to property and maintenance and to refuse the wife’s application would potentially result in the parties engaging in a review process of the current assessment which would likely cause them to incur further costs. He argued that this represents a greater prejudice to the wife than to the husband, who has “substantial wealth and overwhelming income incapacity”.
He submitted that in the special circumstances of this case it is in the interests of both parties for the court to exercise the discretion conferred by s 116(1)(b) of the Assessment Act.
Counsel for the wife submitted that the grounds for departure relied upon by the wife set out in ss 117(2)(a)(i) and (iii), 117(2)(b)(ii) and 117(2)(c) of the Assessment Act were satisfied once jurisdiction was established to determine the application.
He argued that the circumstances of this case are special and sufficiently out of the ordinary as to warrant the Court’s interference with the assessment issued. He relied on the following factors to support that case:
·The parties’ financial circumstances, particularly the high income available to the husband;
·The parties’ agreement that the children be educated at private schools;
·The expenses in relation to the child;
·The evidence as to the high standard of living enjoyed by the family; and
·The low assessment provided by DHS, which clearly does not reflect the husband’s income capacity to pay child support.[110]
[110] Wife’s written closing submissions, par 106.
Counsel for the wife also submitted that the wife was not cross-examined regarding her expenditure on J. However the wife was cross-examined suggesting that her expenses were exaggerated.[111] Counsel for the wife submitted that the expenses are reasonable having regard to the husband’s own expenditure on J.
[111] Transcript of proceedings, 24 May 2016, p 118.
Responding to the husband’s argument that it was an affront to him for an order to be made for child support, counsel for the wife referred to the circumstances being that the husband had only paid child support as assessed, indicated an intention to reduce this, and where the husband wrote in April 2015 (Exhibit 7) demanding that the wife pay him child support, that the wife does not have sufficient confidence that the husband will voluntarily pay and therefore the wife seeks that an order be made.
Whilst I accept that because of the conduct of the husband in making an application to review the child support assessment and then withdrawing, the wife had cause to query the commitment of the husband to make child support payments for the youngest child, it is the case that the husband did not ultimately review the assessment and has paid the assessed child support.
Retrospectively I have had regard to the interim payments received by the wife by way of court orders which have not been included in the joint pool of property for distribution, the payment by the husband of all expenses for J including school fees and tutoring fees and the procedure set out by the Child Support Agency for assessments. There is an amount of approximately $26,654 received by the wife by way of interim court orders as outlined earlier in these reasons which could not be reconciled. I have taken this into account in considering whether it is appropriate to make a departure order for periodic child support which includes arrears.
I have also taken into account in the future the fact that the wife’s financial circumstances will be significantly improved by the cash payment to be made by the husband under the property settlement.
For all of these reasons I am not satisfied that there are special circumstances which warrant the making of the departure order for periodic child support.

Spousal maintenance

At paragraph 123.1 of her trial affidavit, in relation to spousal maintenance, the wife deposed that her ability to earn income is compromised because of her studies which she intends to extend to the end of 2017.
In the wife’s written closing submission at paragraphs 89, 90, and 94, counsel for the wife argued that :
By the time of the resumption of the trial, as at 28 April 2016, when the wife swore her financial statement, she had $215,228 savings remaining. Of this some $183,784.55 has been earmarked for legal fees and expenses, as advised to the husband and the court on 23 May, being the monies owing and to be incurred by her, by the conclusion of the second five days of trial. After payment of living expenses since the last financial statement was sworn, the wife will have less than $25,000 remaining of her savings.
It is expected that the wife will receive further funds as part of any final property orders. However, as she does not have any other source of income, she would, save for those funds, otherwise have to deplete any cash she receives, by way of property settlement, to meet her living expenses. It is uncertain when the wife will receive payment of her entitlements.
…
[The wife] has a shortfall between her current income and expenditure of approximately $2,518 per week and is accordingly depleting her limited capital reserves.
…
The husband concedes capacity to pay but disputes that the wife is unable to support herself adequately.

Relevant Law

The right of a party to a marriage to spousal maintenance is found in ss 72 and 74(1) of the Act.
72Right of spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2)
...
74Power of court in spousal maintenance proceedings
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
The matters to be taken into account in relation to spousal maintenance are set out in s 75(2) of the Act.
In Bevan & Bevan (1995) FLC 92-600, the Full Court of the Family Court of Australia outlined the four general principles (at 81,982) that an award of spousal maintenance requires:
a)a threshold finding under s 72;
b)consideration of s 74 and 75(2);
c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
d)discretion exercised in accordance with the provisions of s 74, with “reasonableness in the circumstances” as the guiding principle.

Conclusion about spousal maintenance

While there is no obligation upon the wife to exhaust all her capital in order to be granted a spousal maintenance order in her favour, she is living in an unencumbered property valued at $2,480,000 and will be receiving a payment from the husband of approximately $1,931,152 together with an anticipated distribution of the proceeds of sale of the Suburb D property which are unknown but estimated to be approximately $840,000. The wife is in a position to earn income from investing the sum that she receives from the property settlement. The youngest child is studying Year 12 but spends equal time with the parties and will be 18 this year. The wife’s income earning capacity has been adversely affected by her lack of recent experience in the paid workforce and she is aged 52 but is in good health. She is improving her qualifications and has worked in the past.
I am not satisfied that the wife has proved on the balance of probabilities under s 72 of the Act that she is unable to support herself adequately by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; by reason of age or physical or mental incapacity or for appropriate gainful employment; or for any other adequate reason having regard to the factors referred to in s 75(2) of the Act.

Conclusion

I am satisfied that in all the circumstances and on the submissions of both parties that it is just and equitable to make a further order altering the interests of the parties to the property of the marriage.
I am satisfied that at the beginning of the marriage the parties had no assets or liabilities of any significance and that both parties worked hard to acquire and improve their assets within their respective roles in a traditional long marriage of approximately 19 years and post separation period of approximately seven years before trial.
As has been pointed out by the Full Court in Fields v Smith (2015) FLC 93-638 (“Fields & Smith”) it is trite to say that equality is not the starting point[112] and as Mallet v Mallet (1984) 13 CLR 605 established there is no presumption of equality of contribution whatever the length of the relationship. Each case must be considered in the light of its individual circumstances and the nature form and extent of contributions made by each of the parties must be analysed and weighed across the entire relationship and the period between separation and the hearing. At paragraph [187] of Fields v Smith the Full Court said that s 79 of the Act does not suggest that one kind of contribution should be treated as less important or valuable than another.
[112] (2015) FLC 93-638 at [186].
I accept the submission of counsel for the wife that the Full Court in Ferraro & Ferraro criticised any suggestion that the court is required to undertake a detailed analysis of the quality of performance of the roles of the parties, and in fact, expressly warned against doing so, noting that an assessment of the quality of homemaker contributions is vulnerable to subjective value judgments.
I am satisfied on all the evidence that in this particular case the contributions made by each of the parties in their respective roles were equal. I am satisfied that both parties made their respective contributions to the best of their ability during the marriage and post separation.
The husband in his role as fulltime income earner made significant financial contributions from his personal exertion as an employee and then as a partner in the firm. The wife made a significant non-financial contribution to the welfare of the family in her role of full-time homemaker and carer which provided the husband with the opportunity to progress his career to achieve his status as an equity partner in the firm. The husband also contributed to the role of homemaker and parent, although the wife predominantly assumed the full time responsibility for that role throughout the marriage and particularly in the early years when the husband was spending long hours at work. Post separation both parties continued to care for the children under 18 and equally shared in the care of the youngest child but the husband continued to work full-time and the wife maintained her full-time role as homemaker.
At paragraph 216 I have identified the property interests, liabilities and superannuation of the parties. I do not accept any of the disputed “adjustments” sought by the wife or the husband for the reasons previously outlined. Excluding the value of the Suburb D property, I am satisfied on the balance of probabilities that the net non-superannuation assets of the parties and the superannuation assets of the parties, excluding the value of the Suburb D property amount to approximately $8,133,553.
The parties were in agreement about the non-superannuation assets and liabilities to be retained by each of them. I find that the value of the net non-superannuation assets which the parties agreed should be retained by the husband is approximately $4,711,502 (excluding the value of the Suburb D property).
I find that the value of the non-superannuation assets which the parties agreed should be retained by the wife including the notional balance of the part property settlement is approximately $2,871,628 (excluding the value of the Suburb D property).
I am satisfied that it is appropriate to allow for a 10 per cent adjustment in favour of the wife for the factors under s 79(4)(d)-(g) of the Act for the reasons outlined earlier.
I have considered and taken into account the agreed notional value of $1,400,000 for the Suburb D property in the overall settlement.
The Suburb D property is on the market for sale with any proceeds to be distributed to the parties by agreement in the proportions of the final property orders determined by the Court.
Accordingly I am satisfied that on all the evidence it is just and equitable to make an order to divide the overall net non-superannuation and superannuation assets of the parties as to 60 percent to the wife and 40 percent to the husband.
The effect of this division is that the wife will receive property to the value of $4,880,132 together with 60 per cent of the net proceeds of sale of the Suburb D property. The husband will receive property to the value of $3,253,421 together with 40 per cent of the net proceeds of sale of the Suburb D property.
I am satisfied that it is just and equitable for each party to retain for their sole use and benefit the superannuation funds which they hold in their own name. In the case of the wife this amounts to $2,352 in the Westpac Lifetime Superannuation Fund and in the case of the husband this amounts to $103,242 in the Mr Trevi Superannuation Fund.
I am satisfied that it is just and equitable for the wife’s entitlement in the Trevi Family Superannuation Fund to be rolled over to another complying fund of the wife’s choosing. On the basis of Exhibit 10, the wife’s withdrawal benefit entitlement for the year ended 30 June 2015 was $73,635 but in closing submissions both counsel referred to her benefit as $75,000. The wife’s benefit whatever that value might be at the date the order is made is to be rolled over from the Trevi Family Superannuation Fund to a complying fund nominated by the wife.
Therefore excluding the proceeds of the sale of the Suburb D property, the net effect of my findings, assuming the parties retain the property which they have apparently agreed, is that the husband is required to pay to the wife $1,931,152 to effect a distribution of the overall non-superannuation and superannuation assets of 60 percent to the wife and 40 percent to the husband.
The net proceeds of sale of the Suburb D property when it is sold should be divided between the parties in accordance with the proportions I have found which is 60 percent to the wife and 40 percent to the husband.
The following tables detail the effect of my findings:

HUSBAND RETAIN	WIFE RETAIN
NON-SUPERANNUATION ASSETS
1 & 2 B Street, Suburb A	$2,700,000				Part property settlement	$2,616,400
3 B Street, Suburb A	$1,100,000				Wife's motor vehicle	$40,000
P Street, Suburb I	$2,200,000				Wife’s bank accounts	$215,228
W Street, Suburb Q	$300,000
T Street, U Town	$365,000
Husband's Bank Accounts	$449,705
Husband's Motor Vehicles	$237,500
NL additional fixed capital	$341,349
NL other accounts	NIL
Shares in "Company R"	$10,510
Trevi Investment Trust	$1,781
ASG Fund	NIL
TOTAL NON-SUPERANNUATION ASSETS	$7,705,845
Less liabilities	$2,994,343
Total net non-superannuation assets (husband)	$4,711,502				Total net non-superannuation assets (wife)	$2,871,628
Total net non-superannuation assets						$7,583,130
SUPERANNUATION ASSETS
Mr Trevi Superannuation Fund				$103,242	Westpac Lifetime Superannuation		$2,352
Husband’s benefit under Trevi Family Superannuation Fund			$369,829		Wife’s benefit under Trevi Family Superannuation Fund		$75,000
Total superannuation assets (husband)			$473,071		Total superannuation assets (wife)		$77,352
Total superannuation assets						$550,423
NET NON-SUPERANNUATION ASSETS			$4,711,502		NET NON-SUPERANNUATION ASSETS	$2,871,628
SUPERANNUATION ASSETS			$473,071		SUPERANNUATION ASSETS	$77,352
TOTAL NET ASSETS (HUSBAND)		$5,184,573			TOTAL NET ASSETS (WIFE)	$2,948,980
TOTAL NET ASSETS						$8,133,553

SETTLEMENT

Husband retain net non-superannuation assets (excluding Suburb D sale proceeds)		$4,711,502
Wife retain net non-superannuation assets (excluding Suburb D sale proceeds)		$2,871,628
Total net non-superannuation assets (excluding Suburb D sale proceeds)		$7,583,130
Total superannuation assets		$550,423
Total superannuation and net non-superannuation assets		$8,133,553
Husband to receive 40 per cent of $8,133,553		$3,253,421
Wife to receive 60 per cent of $8,133,553		$4,880,132
Wife to receive 60 per cent	$4,880,132
Wife retain	$2,948,980
Wife to receive from husband	$1,931,152
Husband to receive 40 per cent	$3,253,421
Husband retain	$5,184,573
Husband to pay wife	$1,931,152

NOTIONAL SETTLEMENT

Wife notionally retaining	$2,948,980
Wife to receive payment from husband	+ $1,931,152
Wife to receive 60 per cent of Suburb D proceeds of sale	+ $840,000
Wife's overall notional settlement	$5,720,132
Husband notionally retaining	$5,184,573
Husband to pay wife	– $1,931,152
Husband to receive 40 per cent of Suburb D proceeds of sale	+ $30,000
Husband's overall notional settlement	$3,813,421

For the reasons I have outlined earlier I propose to dismiss the wife’s application for a departure order and non-periodic child support together with her application for spousal maintenance.

Reserved Costs Order of 29 July 2015

After an interim contested hearing on 13 February 2015 orders were made requiring the wife to withdraw caveats which she had lodged against properties registered in the husband’s name. The husband subsequently made an application for the wife to pay the costs of that hearing. This was heard at a further interim hearing on 27 May 2015 which also concerned the wife’s interim application for periodic spousal maintenance. The husband’s application for costs of the interim hearing on 13 February 2015 was reserved to the trial by an order made on 29 July 2015.
The wife opposes an order that she pay the husband’s costs of and associated with the interim hearing on 13 February 2015.
The husband in his Factual Anomalies document filed 15 June 2016 refers to paragraph 116.5 of the written submissions of counsel for the wife which refers to this reserved costs issue. In this Anomalies documents the husband states “the investment strategy has produced a nett increase in the asset pool before the Court… the pool will be divided between the parties, and the Wife will share in those assets accumulated post separation”.[113]
[113] See Husband’s Factual Anomalies document, pp 23-24.
The question of whether an order for costs should be made is a discretionary under s 117(2) of the Act. The wife was unsuccessful in the interim hearing on 13 February 2015. However having heard all of the evidence in the trial and the circumstances of the husband having purchased the Suburb I property unilaterally, together with the fact that the husband’s financial position is far superior to that of the wife, I am not of the opinion that there are circumstances here which justify an order for costs of the interim hearing on 13 February 2015 other than the usual order that each party bear his or her own costs.

I certify that the preceding five hundred and twenty-one (521) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 18 May 2017.

Associate:

Date: 18 May 2017

Annexure A

The applicant wife relied upon the following documents:

Second Further Amended Initiating Application filed 14 October 2015;
Affidavits of the wife filed 14 October 2015, 4 November 2015 and 28 April 2016;
Financial Statements of the wife filed 14 October 2015 and 28 April 2016;
Affidavit of Chartered Accountant Mr KK filed 2 December 2015;
Affidavit of Mr S single expert valuer of motor vehicles filed 27 December 2015; and
Joint expert report of Chartered Accountants Mr KK and Mr JJ filed 21 April 2016.

The respondent husband relied upon the following documents:

Response to Second Further Amended Initiating Application filed 27 October 2015;
Affidavits of the husband filed 27 October 2015 and 13 April 2016;
Financial Statements of the husband filed 30 November 2015 and 13 May 2016;
Affidavit of Chartered Accountant Mr JJ filed 27 October 2015;
Affidavit of Ms LL filed 13 April 2016; and
Affidavit of school teacher of the three children Mr HH filed 23 May 2016.

Assets		Owner	$Value (Est)
1 & 2 B Street, Suburb A		Husband	2,700,000
3 B Street, Suburb A		Husband	1,100,000
W Street, Suburb Q		Husband	300,000
T Street, U Town		Husband	365,000
Bank accounts		Husband	449,705
Bank accounts		Wife	215,228
Motor Vehicles		Husband	237,500
NL additional fixed capital		Husband	341,349
Trevi Investment Trust		Joint	1,781
Asset to be sold
C Street, Suburb D QLD		Husband	(Notional) 1,400,000
Liabilities
Debt associated with Suburb Q property		Husband	346,254
Debt associated with U Town property		Husband	123,984
Overdraft		Husband	65,924
Tax assessment		Husband	158,173
Superannuation
Westpac Lifetime Superannuation	Accumulation	Wife		2,352
Trevi Family Superannuation	SMSF	Joint		444,829