Volke and Volke

FAMILY COURT OF AUSTRALIA

VOLKE & VOLKE

[2017] FamCA 237

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the parties were married for 23 years – Where overall contributions are found to be 52 per cent by the wife and 48 per cent by the husband – Where the wife is 65 years of age and the husband is 53 years of age – Where the wife has not been in paid employment for over 20 years – Where the husband has a significantly greater earning capacity than the wife – Where each party has a financial resource – Where a 15 per cent adjustment in favour of the wife pursuant to s 75(2) of the Family Law Act 1975 (Cth) is appropriate – Where an order is made to effect an overall division of property and superannuation assets in the proportions 67 per cent to the wife and 33 per cent to the husband.

FAMILY LAW – SPOUSE MAITNENANCE – Where the wife seeks that the husband pay her $2105 per week by way of spouse maintenance – Where a significant adjustment of property has been made in the wife’s favour – Where the wife is unable to establish the threshold requirement that she is unable to support herself adequately – Application dismissed.

Family Law Act 1975 (Cth) – s 72(1); 75(2); s 79; s 79(1); s 79(2); s 79(4)

Bevan & Bevan (2013) FLC 93-545
Chorn and Hopkins (2004) FLC 93-204
Clauson and Clauson (1995) FLC 92-595
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Volke

RESPONDENT:

Mr Volke

FILE NUMBER:

SYC

4685

2014

DATE DELIVERED:

12 April 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

7-9 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

That the parties shall do all things and sign all documents necessary to sell the former matrimonial property at B Street, Suburb C (“the Suburb C property”) for the best price reasonably obtainable in the following manner:
1.1they shall appoint a lawyer or conveyancing agent to have the conduct of the sale to be agreed within 14 days of the date of commencement of these orders (“the lawyer”) and failing agreement to be appointed by the President for the time being of the Law Society of New South Wales (or his/her nominee) upon receipt of a written request by either party (or their nominee) the costs of and incidental to such appointment (and of the President) to be paid from the proceeds of sale;;
1.2they shall appoint an agent to have the conduct of the sale within 14 days of the said date (“the agent”);
1.3they shall list the Suburb C property for sale by public auction within 6 weeks from the date of appointment of the agent;
1.4the reserve price for the purpose of such auction shall be such price as the parties agree in writing or, in the absence of agreement reached within 14 days from the date of appointment of the agent, the price nominated by the agent;
1.5the parties shall cooperate in every way with the agent including (without limiting the generality of the foregoing):
1.5.1making the key available to the agent:
1.5.2allowing inspection of the Suburb C property at all reasonable times requested by the agent;
1.5.3doing or saying nothing to hinder or prevent a sale being effected;
1.5.4ensuring the Suburb C property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
1.5.5signing all documents requested by the agent in relation to the listing for sale of the Suburb C property;
1.6if the Suburb C property remains unsold within 3 months of first being listed, the parties shall do all things and sign all documents necessary to continue to relist the Suburb C property for sale by public auction again at three monthly intervals, and the provisions of Orders 1.1 to 1.5 shall apply successively until the Suburb C property has been sold so that at each successive auction the reserve price shall be 5 per cent less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing;
1.7the parties execute a contract for sale in the form prepared by the lawyer having the conduct of the sale at the sale price; and
1.8neither party be entitled to confer on any agent without the consent of the other party, any right to any sole or exclusive agency in respect of the home or to any commission.
On settlement of the sale of the Suburb C property, the proceeds of sale be paid in the following manner and priority:
2.1all costs and expenses of sale including legal costs and disbursements, agent’s commission and auction expenses;
2.2the amounts required to discharge the mortgages secured over the Suburb C property to the Westpac Bank;
2.3the amounts required to pay all council and water rates outstanding with respect to the Suburb C property;
2.4the amount required to pay any land tax payable in respect of the property;
2.5$50 000, which the parties shall forthwith cause to be placed in a controlled monies account held in the parties’ joint names with the lawyer attending to the sale of the property (“the Controlled Monies Account”), and held pending an assessment to pay taxation (that includes Capital Gains Tax payable arising from the sale of the property and/or income tax payable arising from the rental of the property at any time post separation) (collectively known as “the Identified Tax Liability”) being issued to the husband, and to the wife, and thereafter paid in the following manner and priority:
2.5.1in such sum as required to discharge the Identified Tax Liability (if any) in the husband’s name; and
2.5.2the balance remaining in such sum to discharge the Identified Tax Liability (if any) in the wife’s name; and
2.5.3the balance remaining to be paid to the parties to effect as close as possible an overall division of their property and superannuation in the proportions 67 per cent to the wife and 33 per cent to the husband;
2.690.242 per cent of the balance be paid to the wife and 9.758 per cent to the husband.

Other property

Within 28 days of the date of commencement of these orders, the husband:
3.1do all things and sign all documents necessary to transfer to the wife all of his right, title and interest in the 4WD motor vehicle and the Japanese motor vehicle currently registered in the husband’s name, and in the joint Westpac Classic Plus Account No …72;
3.2remove from the garage located at the home, all items of furniture, effects and equipment stored in the garage which he seeks to retain; and
3.3collect from the home, three numbered lithograph prints, the prints of the Volke family homes in Europe, the Soapstone sculpture (egret), and the handmade wooden candlestick (“the husband’s Identified Effects”), which are to be placed in the garage of the home by the wife ready for collection by the husband within 7 days from the date of the making of these orders.

Superannuation

A base amount of $150,000 is allocated, as required by Section 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the husband’s interests in the Macquarie Super Manager Plan account number …30.
In accordance with Section 90MT(1)(a) of the Act:
5.1the wife is entitled to be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2011 using the base amount allocated in the preceding order;
5.2the husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made, to payments out of the husband’s interests in the Macquarie Super Manager Plan is correspondingly reduced.
5.3that the trustee of the Macquarie Super Manager Plan (“the trustee”) shall do all such things and sign all such documents as may be necessary to:
5.3.1. calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement of the wife created by order 5.1; and
5.3.2. pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Macquarie Super Manager Plan;
5.4this order is to have effect from the operative time. The operative time is 7 days from the service of this Order on the trustee.
After service of the payment split notice pursuant to reg 7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary including but not limited to, exercising her request pursuant to reg 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband’s interest in the Macquarie Super Manager Plan to a fund of the wife’s choosing in accordance with reg 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 or in the alternative, for the payment directly to the wife of the amount calculated to be due to her in accordance with the preceding order.

Personal property

Except as these orders provide to the contrary, as against the husband, the wife retain and be solely entitled to the following:
7.1the wife’s bank accounts;
7.2the wife’s superannuation;
7.3the loan to Mr D;
7.4all furniture and furnishings in the wife’s possession; and
7.5any assets and resources in the wife’s name or to which she is entitled and not otherwise referred to in these orders.
Except as these orders provide to the contrary, as against the wife, the husband retain and be solely entitled to the following:
8.1the husband’s bank accounts;
8.2the shares;
8.3the husband’s future right to any restricted stock units (if any) issued from Company E.
8.4the husband’s superannuation;
8.5all furniture, furnishings and personal effects contained in the husband’s possession; and
8.6any assets and resources in the husband’s name or to which he is entitled and not otherwise referred to in these orders.

Indemnities

Except as these orders provide to the contrary:
9.1the husband be responsible for, and indemnify the wife from and in respect of, any actions, claims, suits and/or demands as may be made against the wife in relation to all liabilities in the name of the husband or relating to any asset he is to retain under any order comprising these orders including any credit card or loan held in the husband’s name;
9.2the wife be responsible for, and indemnify the husband from and in respect of, any actions, claims, suits and/or demands as may be made against the husband in relation to all liabilities in the name of the wife or relating to any asset she is to retain under any order comprising these orders, including any credit card or loan held in the wife’s name;
9.3each party, as against the other, forgive the debts owing from one to the other.

Other

Each party do all things necessary, including providing the necessary consent, to give effect to these orders in the time periods prescribed in these orders.
In the event either party refuses or neglects to execute any document or to do a thing necessary to give effect to the validity and operation of the document, then a Registrar of the Family Court of Australia is appointed pursuant to Section 106A of the Act to execute such document and/or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the Deed, document or instrument, upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
The wife’s application for maintenance be dismissed.
All exhibits be released.
Both parties have leave to relist these proceedings by arrangement with the Associate to Johnston J for the purpose of implementation of the orders.
The above orders not commence operation until 28 April 2017.
Both parties have leave to relist these proceedings at any time not later than 27 April 2017 by arrangement with the Associate of Johnston J for the purpose only of any further submissions in relation to the form of the orders.

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 Volke & Volke 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 SYDNEY

FILE NUMBER: SYC 4685 of 2014

Ms Volke

Applicant

And

Mr Volke

Respondent

REASONS FOR JUDGMENT

Introduction

These are property and spousal maintenance proceedings. The parties in these proceedings are Ms Volke (“the wife”) and Mr Volke (“the husband”).
They commenced cohabiting in late 1993, married in 1994, separated in 2014 and were divorced in November 2016.
The parties have been unable to resolve their dispute about financial matters and have asked this Court to determine this for them.

Applications

The wife seeks the following orders:
…
Property Orders
…
[Suburb C] property
3.The parties shall do all acts and things and sign all documents necessary to sell the [Suburb C] property for the best price reasonably obtainable in the following manner:
3.1the wife shall appoint a lawyer or conveyancing agent to have the conduct of the sale within 14 days of the date of the making of these orders ("the lawyer");
3.2the wife shall appoint an agent to have the conduct of the sale within 14 days of the date of the making of these orders ("the agent");
3.3the wife shall list the [Suburb C] property for sale by public auction within 6 weeks from the date of appointment of the agent;
3.4the reserve price for the purpose of such auction shall be such price as the parties agree upon in writing or, in the absence of agreement reached within 14 days from the date of appointment of the agent, shall be the price nominated by the agent;
3.5the wife shall keep the husband informed of the sale process as provided by this order and shall provide the husband with a copy of the contract or agreement for sale;
3.6the parties shall cooperate in every way with the agent and the valuer including (without limiting the generality of the foregoing):
3.6.1 making the key available to the agent and the valuer:
3.6.2 allowing inspection of the [Suburb C] property at all reasonable times requested by the agent and the valuer
3.6.3 doing or saving nothing to hinder or prevent a sale being effected;
3.6.4 ensuring the [Suburb C] property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
3.6.5 signing all documents requested by the agent in relation to the listing for sale of the [Suburb C] property;
3.7in the event the bidding at the auction does not reach the reserve price the wife may negotiate with the highest bidders or any other interested person and effect a sale of the [Suburb C] property;
3.8if the [Suburb C] property remains unsold, the parties shall do all acts and things and sign all documents necessary to continue to relist the [Suburb C] property for sale by public auction again at three monthly intervals, and the provisions of Orders 3.1 to 3.7 shall apply successively until the [Suburb C] property has been sold so that at each successive auction the reserve price shall be 10 per cent less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing.
4.On settlement of the sale of the [Suburb C] property, the proceeds of sale be paid in the following manner and priority:
4.1all costs and expenses of sale including legal costs and disbursements, agent's commission and auction expenses;
4.2the amounts required to discharge the mortgage secured over the [Suburb C] property to the Westpac Bank;
4.3the amounts required to pay all council and water rates outstanding with respect to the [Suburb C] property;
4.4the balance then remaining shall be paid to the wife.
5.Pending settlement of the sale of the [Suburb C] property:
5.1the parties be restrained by injunction from increasing the balance of the mortgage currently secured over the property; and
5.2the husband shall be responsible for and pay all amounts due to the Westpac Bank mortgage secured over the property and all-Council-and water rates and insurance and in relation to the [Suburb C] property and shall indemnify and keep indemnified the wife in relation thereto.
Other property and debts
6.Within 28 days of the date of the making of these Orders, the husband:
6.1do all acts and things and sign all documents necessary to transfer to the wife all of his right title and interest in [4WD] motor vehicle currently registered in his name;
6.2to remove from the garage located at the [Suburb C] property, and at his expense, all items of furniture and effects stored in the garage, ensuring that the garage is left in a tidy and clean condition; and
6.3collect from the wife the 3 prints currently located in the [Suburb C] property which the will make available for collection at a mutually convenient time;
6.4shall use his best endeavours to do all acts and things and sign all documents necessary to assign to the wife 80 per cent of the Frequent Flyer points accumulated in the husband’s name as at the 30 June 2014 to the wife.
Superannuation Split
7.That a base amount of $300,000 is allocated, as required by section 90MT(4) of the Act to the wife out of the husband's interest in the Macquarie Super Manager Plan (account number …30).
8.That, in accordance with section 90MT(1)(a) of the Act:
8.1the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in the preceding Order;
8.2the husband's entitlement, and the entitlement of such other person to whom a splittable payment may be made, to payments out of the husband's interest in the Macquarie Super Manager Plan is correspondingly reduced;
8.3that the trustee of the Macquarie Super Manager Plan ("the trustee") shall do all such acts and things and sign all such documents as may be necessary to:
8.3.1 calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement of the wife created by Order 8.1; and
8.3.2 pay the entitlement whenever the trustee makes a splittable payment out of the husband's interest in the Macquarie Super Manager Plan;
8.4that this order have effect from the operative time and the operative time is 7 day from service of this Order on the trustee.
9.That, after service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband's interest in the Macquarie Super Manager Plan to a fund of the wife's choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994 or in the alternative, for the payment directly to the wife of the amount calculated to be due to her in accordance with the preceding Order.
10.That other than as is specifically provided for in these orders each party is solely entitled to the exclusion of the other party to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making of these orders, including respective entitlements to superannuation.
Spousal Maintenance
11.The husband pay to the wife the sum of $2,105 per week by way of spousal maintenance, such amount to be paid into a bank account nominated by the wife with the first payment to be made within 7 days from the date of these orders.
12.The amount payable by the husband pursuant to Order 6 is to be varied on the review date each year from the date of the making of these Orders to such sum as shall be determined by multiplying the amount being paid immediately prior to the review date by the fraction A/B where "B" is the CPI in respect of the June quarter ending 12 months prior to the review date and "A" is the CPI in respect of the June quarter ending on the day immediately preceding the review date.
Other/Costs
13. That in default of the parties doing all acts and things and executing all documents as are necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney be appointed to execute all such documents in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such documents and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.
14. That the husband pay the wife's costs of and incidental to the proceedings.

On the other hand, the husband seeks the following orders:
1.The husband and wife do all acts and things and sign all documents necessary so as to effect a sale of the home in the following manner:
1.1list the home for sale by such means as agreed between the parties or if no agreement as to the means then auction within 14 days of the date of the date of the making of these Orders with such agent as the parties may agree in writing to appoint and in default of agreement as to such agent within a further 7 days, with such agent as appointed by the President of the Real Estate Institute of NSW (or his/her nominee) shall appoint ("the agent") upon receipt of a written request by either party (or their nominee), the costs of and incidental to such appointment (and of the President) to be borne equally by the parties as and when same became due and payable;
1.2the sale price or auction reserve for the purpose of such private treaty sale or auction be such price as mutually agreed upon by the parties in writing within 21 days of the date of the date of the making of these Orders, and in default of agreement as to such agent within a further 7 days will be the price nominated as the fair market value thereof by a valuer appointed by the President for the time being of the Australian Property Institute (Inc) (or his/her nominee) ("the valuer") upon receipt of a written request by either party (or their nominee), the costs of and incidental to such appointment and valuation to be borne by the husband as and when same became due and payable;
1.3the parties each cooperate in every way with the agent including (without limiting the generality of the foregoing):
1.3.1.making the key available to the agent;
1.3.2. allowing inspection of the home at all reasonable times requested by the agent;
1.3.3. doing or saying nothing to hinder or prevent a sale being effected;
1.3.4.ensuring the home including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
1.3.5.signing all documents requested by the agent in relation to the listing for sale of the home except a contract or agreement for sale which has not been authorised by the parties.
1.4.if the home remains unsold within 3 months of first being listed, the parties do all acts and things and sign all documents necessary to reduce the sale price or auction reserve by 5 per cent less than the sale price at 3 monthly intervals unless otherwise agreed by the parties in writing;
1.5.the parties instruct such solicitor as agreed upon in writing to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within 42 days after the due date, such solicitors appointed by the President for the time being of the Law Society Of New South Wales (or his/her nominee) upon receipt of a written request by either party (or their nominee) ("the solicitor") the costs of and incidental to such appointment (and of the President) to be borne by the husband as and when same became due and payable;
1.6.the parties execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at the sale price; and
1.7.neither party be entitled to confer on any agent without the consent of the other party, any right to any sole or exclusive agency in respect of the home or to any commission.
2..On settlement of the sale of the home the parties do all acts and things and sign all documents necessary to cause the proceeds of sale of the home to be paid in the following manner and priority:
2.1.All costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees (including repayment of any such expense having been paid by either or both of the parties to that party);
2.2. The amount required to discharge the home mortgage;
2.3.The amount required to pay the usual conveyancing adjustments (including but not limited to water and council rates outstanding with respect to the home);
2.4. The amount required to pay any Land Tax payable in respect of the home;
2.5.The sum of $150,000 to the husband;
2.6.In the event the sale price is $1,800,000 or less:
2.6.1. Pay such sum to the husband (or as he may direct) to effect an overall division of the property pool as to 45 per cent to the Husband and 55 per cent to the Wife:
2.6.1.1 less an amount equal to 50 per cent of the costs and expenses incurred pursuant to Order 2.1; and
2.6.1.2 plus an amount equal to the total rent received from the rental of the home since its first rental post separation until the date of settlement of the sale of the home; and
2.6.1.3(this was deleted)
2.6.2. The balance then remaining be paid to the wife or as she may direct, less the following:
2.6.2.1.50 per cent of the costs and expenses incurred pursuant to Order 2.1, plus 50 per cent of any sale proceeds greater than $1,800,0000; and
2.6.2.2.$50,000, which the parties forthwith cause to be placed in a controlled monies account held in the parties' joint names with the solicitors attending to the sale of the home ["the Controlled Monies Account"], and held pending an assessment to pay taxation (that includes Capital Gains Tax payable arising from the sale of the home and/or income tax payable arising from the rental of the home at any time post separation) [collectively known as "the Identified Tax Liability”] being issued to the Husband, and to the wife, and thereafter paid in the following manner and priority:
2.6.2.2.1.In such sum as required to discharge the Identified Tax Liability (if any) in the husband's name; and
2.6.2.2.2.The balance remaining in such sum to discharge the Identified Tax Liability (if any) in the wife's name; and
2.6.2.2.3.the balance remaining to be paid to the Wife.
2.7.In the event the sale price is more than $1,800,000 (but not equal to):
2.7.1. Such sum to the husband (or as he may direct) to effect an overall division of the property pool as to 45 per cent to the Husband and 55 per cent to the Wife:
2.7.1.1 less an amount equal to 50 per cent of the costs and expenses incurred pursuant to Order 2.1; and
2.7.1.2 plus an amount equal to 50 per cent of any sale proceeds greater than $1,800,000; and
2.7.1.3 plus an amount equal to the total rent received from the rental of the home since its first rental post separation until the date of settlement of the sale of the home; and
2.7.1.4 (this was deleted)
2.7.2. The balance then remaining be paid to the wife or as she may direct, less the following:
2.7.2.1.50 per cent of the costs and expenses incurred pursuant to Order 2.1, plus an amount equal to 50 per cent of any sale proceeds greater than $1,800,000; and
2.7.2.2.$50,000, which the parties forthwith cause to be placed in a controlled monies account held in the parties' joint names with the solicitors attending to the sale of the property [“the Controlled Monies Account”], and held pending an assessment to pay taxation (that includes Capital Gains Tax payable arising from the sale of the home and/or income tax payable arising from the rental of the home at any time post separation) [collectively known as "the Identified Tax Liability”] being issued to the Husband, and to the wife, and thereafter paid in the following manner and priority:
2.7.2.2.1.In such sum as required to discharge the Identified Tax Liability (if any) in the husband's name; and
2.7.2.2.2.The balance remaining in such sum to discharge the Identified Tax Liability (if any) in the wife's name; and
2.7.2.2.3.the balance remaining to be paid to the Wife.
3.Forthwith following the settlement of the sale of the home, the parties do all acts and things and sign all documents necessary to instruct and cause such accountant as agreed between them (and in the absence of agreement within 7 days after the settlement of the sale, F Chartered Accountants ["the Accountant”]) to prepare (as soon as the Accountant is able to do so) the tax return for each party for the financial year in which the home was sold, and lodge same with the Australian Tax Office forthwith once finalised and signed off.
4.For the purposes of Order 3 the parties do all things and provide all documents to the Accountant to facilitate the preparation of the report, with the costs of the Accountant to be paid by the parties in equal shares forthwith upon demand by the Accountant.
5. Simultaneously with the husband receiving the payment from the proceeds of sale of the home pursuant to Order 2.5 the husband sign all documents presented to him by the wife to transfer (At the Wife's costs) his right to recovery of the funds advanced to [Mr D] during the parties' marriage.
6.Within 60 days from the date of the making of these Orders, the husband and the wife do all acts and things and sign all documents necessary to, in order of priority:
6.1Pay such sum remaining to the party's credit in the joint bank account to the parties equally; and
6.2Then close the joint bank account
7.Within 28 days of the date of the making of these Orders, the husband:
7.1.1 Do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in the [4WD] motor vehicle and the [Japanese] Motor Vehicle currently registered in the husband's name;
7.1.2 Remove from the garage located at the home, all items of furniture, effects and equipment stored in the garage as he seeks to retain;
7.1.3 Collect from the home, three numbered lithograph prints, the prints of the [Volke] family homes in [Europe], the Soapstone sculpture (egret), the Family Crest carving and the handmade wooden candlestick ("the Husband's Identified Effects"), which are to be placed in the garage of the home by the wife ready for collection by the husband within 7 days from the date of the making of these Orders.
7.2.Pending compliance with:
7.2.1 Order 7.1.1, the Husband be restrained from doing any act or thing having as its' cause or effect the damage, disposal of, or further encumbering of the [4WD] Motor Vehicle or the [Japanese] Motor Vehicle;
7.2.2 Order 7.1.2, the Wife be restrained from doing any act or thing having as its' cause or effect the damage, disposal of, or further encumbering of the items of furniture, effects and equipment stored in the garage at the home which the Husband seeks to retain;
7.2.3 Order 7.1.3, the Wife be restrained from doing any act or thing having as its' cause or effect the damage, disposal of, or further encumbering of the Husband's Identified Effects which the Husband seeks to retain.
8.A base amount of $200,000 is allocated, as required by Section 90MT(4) of the Act to the wife out of the husband's interests in the Macquarie Super Manager Plan account number 802001530.
9.In accordance with Section 90MT(1)(a) of the Act:
9.1.The wife is entitled to be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2011 using the base amount allocated in the preceding order;
9.2.The husband's entitlement, and the entitlement of such other person to whom a splittable payment may be made, to payments out of the husband's interests in the Macquarie Super Manager Plan is correspondingly reduced.
9.3.That the trustee of the Macquarie Super Manager Plan ("the trustee") shall do all such acts and things and sign all such documents as may be necessary to:
9.3.1. Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement of the wife created by order 7.1; and
9.3.2. Pay the entitlement whenever the trustee makes a splittable payment out of the husband's interest in the Macquarie Super Manager Plan;
9.4.This order have effect from the operative time. The operative time is 7 days from the service of this Order on the trustee.
10. After service of the payment split notice pursuant to R.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary including but not limited to, exercising her request pursuant to R.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the transferable benefits out of the husband's interest in the Macquarie Super Manager Plan to a fund of the wife's choosing in accordance with R.7A.12 of the Superannuation Industry (Supervision) Regulations 1994 or in the alternative, for the payment directly to the wife of the amount calculated to be due to her in accordance with the preceding order.
13.Except as these Orders provide to the contrary, as against the husband, the wife retain and be solely entitled to the following:
11.1. The wife’s bank accounts;
11.2. The wife’s superannuation;
11.3. The Loan to [Mr D];
11.4. All furniture and furnishings in the wife's possession; and
11.5. Any assets and resources in the wife's name or to which she is entitled and not otherwise referred to in these Orders.
14.Except as these Orders provide to the contrary, as against the wife, the husband retain and be solely entitled to the following:
12.1. The husband’s bank accounts;
12.2. The shares;
12.3. The [Japanese] motor vehicle;
12.4. The husband's future right to any restricted stock units (if any) issued from [Company E].
12.5. The husband's superannuation;
12.6. All furniture, furnishings and personal effects contained in the husband’s possession;
12.7. Any assets and resources in the husband's name or to which he is entitled and not otherwise referred to in these Orders.
13.Except as these Orders provide to the contrary:
13.1. The husband be responsible for, and indemnify the wife from and in respect of, any actions, claims, suits and/or demands as may be made against the wife in relation to all liabilities in the name of the husband or relating to any asset he is to retain under any Order comprising these Orders including any credit card or loan held in the husband's name;
13.2.The wife be responsible for, and indemnify the husband from and in respect of, any actions, claims, suits and/or demands as may be made against the husband in relation to all liabilities in the name of the wife or relating to any asset she is to retain under any Order comprising these Orders, including any credit card or loan held in the wife's name;
13.3. Each party, as against the other, forgive the debts owing from one to the other.
14.Each party do all acts and things necessary, including providing the necessary consent, to give effect to these Orders in the time periods prescribed in these Orders.
15.In the event either party refuses to execute any deeds, document or necessarily give effect to the meaning of these Orders, then a Registrar of the Family Court of Australia be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such Deed, document and/or instrument in the name of the said party and do all acts and things necessarily to give validity and operation to the Deed, document or instrument, upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
16.The wife’s application for maintenance be dismissed.
17.The wife pay the husband's costs of and incidental to these proceedings.

Background

The background facts are as follows.
The wife was born in 1952.
The husband was born in 1963.
In 1976 Mr D was born to the wife and her previous husband.
In 1983 the wife acquired a half share in a property along with her brother at G Street, H Town (“the H Town property”).
In 1989 the wife purchased a 448 Hectare property near H Town known as “Property I” for $210 000.
In December 1993 the parties commenced cohabitation. At this time the wife was employed as a General Manager, earning approximately $140 000 per annum, plus bonus. Her property consisted of approximately $15 000 savings, a 4WD motor vehicle, her real estate interests referred to above, stock and equipment on Property I, some furniture and an interest in superannuation. The husband was employed as a professional by Company J earning approximately $44 000 per annum, plus bonus. His property consisted of savings of approximately $15 000, a Japanese motor vehicle and a very modest interest in superannuation. He had a student loan debt of $1 500 Country K.
In 1994 the parties were married.
In July 1994 the wife commenced working as a General Manager for the Company L (“CL”) earning approximately $150 000 per annum. The parties relocated from Adelaide to H Town in order for the wife to commence this employment. They lived initially in the H Town property. The husband commenced to undertake private consulting work. He had resigned from Company J.
In August or September 1994 the husband went on a holiday visiting family and friends in Country K.
In 1994 Mr M was born to the parties. The wife returned to work after Mr M’s birth and the parties used the services of a nanny to provide child care.
In October 1994 the husband accepted a position to set up a regional office in Canberra for his previous employer Company J. The parties moved to a location on the Canberra side of N Town between their respective places of employment, and obtained a nanny to assist in caring for Mr M.
In June 1995 the wife had completed her contract with CL and ceased her employment a short time later. She has not recommenced paid employment since that time.
In July 1995 the parties relocated to O Town, near Canberra.
In 1997 the parties relocated to Brisbane as the husband accepted an offer of employment as the lead Project Manager with Company P. This was a promotion. Initially, the parties lived in rented accommodation.
In early 1998 the parties and Mr D established a business in Brisbane called “Q”. After 11 months of operation the business was sold for $60 000. I shall refer to this again below.
In September 1998 the wife transferred her share in the H Town property to her brother for consideration of $80 000. The husband had suggested this was $50 000 based on the entry on the Transfer document. But I am satisfied, based on the parties’ respective recollections, that the amount was $80 000.
In 1999 Mr M commenced school. The husband and wife noticed that Mr M had learning difficulties from early in his schooling.
In 2 June 1999 the parties purchased a property at P Street, Suburb Q in Queensland (“the P Street property”) for $267 500. The parties obtained a loan from the Commonwealth Bank initially for the entirety of the required funds. But after the wife sold her H Town property the outstanding mortgage balance was reduced to approximately $75 000.
In June 1999 the wife’s father died. Shortly before his death, he gave her a German motor vehicle which produced $5000 upon trade-in on the purchase of a new 4WD.
In August 2000 the husband commenced employment with R Pty Limited.
In approximately 2002 the husband commenced study for the Masters degree at the S School. He completed this in 2004.
In 2002 the estate of the wife’s late father settled and she received a 34 foot yacht, “T”. The wife sold this in mid-2003 for $80 000. The husband disputed this amount but I prefer the wife’s evidence and accept $80 000. The wife’s mother gifted her $63 000. I also accept this.
In February 2002 the parties purchased an investment property at U Street, Suburb Q in Queensland (“the U Street property”) for $227 000. The amount of $240 000 was borrowed for this purchase.
In April 2002 Property I was sold for $210 000.

In 2004 the wife home schooled Mr M. He returned to main stream schooling in 2005.
In August 2004 the parties sold the U Street property for $342 500. The net proceeds of sale were approximately $100 000.
In March 2005 the parties sold the P Street property for $530 000.
In October 2005 the parties purchased a property at V Street, Suburb W on the Region X in Queensland (“the Suburb W property”) for $440 000. They obtained a mortgage in the amount of $455 000 to complete the purchase. This was reduced by three lump sum payments in 2007 which totalled $281 137. The source of these payments included the proceeds of sale of the P Street property.
In 2005 the parties returned to Sydney. The husband continued his employment with R Pty Limited. They lived in rented accommodation.
In 2006 the parties invested at least $300 000 in a development project in Country Y by the wife’s son, Mr D on land gifted to him by his grandmother. That development ultimately failed. I shall refer to this again below.
In 2006 the husband had a seizure. He was unable to drive for six months. His doctors were unsure about the cause. The husband has not suffered a seizure since this time.
In 2008 R was acquired by Company E and the husband became employed by Company E Australia Pty Limited.
In December 2008 the parties sold the Suburb W property for $480 000. They used much of the net proceeds of sale of $200 000 for rent and living costs.
On 21 July 2009 the parties purchased the property at B Street, Suburb C (“the Suburb C property”) for $1 000 000. They obtained a loan from Westpac in the amount of $800 000. The balance was paid using $100 000 from the wife’s superannuation and $142 590 from the parties’ savings which included the balance of monies given to the wife by her mother.
In 2009 the family travelled to Country K for three weeks to visit the husband’s father who had become terminally ill.
On 4 November 2011 the parties gave $3000 to the husband’s mother.
On 7 June 2013 the wife withdrew $20 000 from her BT Superannuation Fund and used this for living expenses.
In 2014 Mr M commenced study for a Bachelor of degree at Z University. Later that year he withdrew from that course. In early 2015 Mr M enrolled for a degree at the AA School. He lived on campus. I shall refer to this matter again below.
The parties separated either on 1 April 2014 when the husband moved to Asia for his employment or on 23 May 2014 which the wife considers to be the date of separation.
On 9 April 2014 the wife withdrew a further sum of $3000 from her BT Superannuation Fund.
From 30 June 2014 the husband’s salary was paid into an account in Asia rather than into the parties’ joint account.
On 11 June 2014 the wife withdrew a further sum of $2000 from her BT Superannuation Fund.
From 1 July 2014 the husband lived with Ms BB and her children in Asia.
On 28 July 2014 the wife commenced receiving a carer’s pension for Mr M in the sum of $249 per week. This is now paid in the form of the Age Pension.
On 29 July 2014 the wife commenced these proceedings.
On 19 September 2014 orders were made by Stevenson J requiring the husband to pay the wife by way of spouse maintenance a sum of $1750 per week as well as the mortgage repayments, council and water rates, and home insurance in respect of the Suburb C property.
On 14 January 2015 the wife withdrew a lump sum of $48 794 from her Public Sector Superannuation fund. She applied those funds to Mr M’s Z University fees, living expenses, legal costs and travel costs of herself and Mr M to Asia.
In August 2015 the wife and Mr M moved to the home of the wife’s mother at CC Town, from which point the Suburb C property was leased. The rental income from the Suburb C property was paid into an account in Mr M’s name and directed to payment of Mr M’s university fees and for his support. The husband only became aware of the Suburb C property being leased in September 2016.
In mid-2016 Mr M commenced attending on a psychiatrist. He was referred by his psychiatrist to a sleep disorder specialist. He experiences symptoms of fatigue. He has been prescribed “Modafinil” medication as well as an antidepressant. Mr M has been diagnosed in the past with slow processing.
In November 2016 the husband obtained rented accommodation in Asia and moved there together with Ms BB and her children.
On 2 November 2016 the parties’ divorce became final.
In December 2016 or January 2017 the wife borrowed $100 000 from her mother for payment of legal fees.

Credit

The Wife

The wife was quite nervous during the course of her cross-examination and appeared to find it difficult to settle down even over time. On two occasions I adjourned the proceedings to enable her time to regain her composure.
The wife appeared to find it difficult to be responsive in her answers to questions. At times, she sought to engage in debate with counsel and at times she included in her answers non-responsive material which presumably she thought would assist her case.
Having said this, the wife did demonstrate a good recollection for relevant facts and dates.
I did not have a sense that she was being other than truthful. In relation to dates and monetary amounts, generally where her evidence conflicts with that of the husband I would prefer the evidence of the wife.

The Husband

The husband was articulate and somewhat measured in his responses.
It became apparent that there were many inaccurate recollections in his affidavit. The husband said that he prepared his affidavit without the benefit of documents which he said were in the possession of the wife until a matter of days before the commencement of the trial.
The husband was granted leave to file and rely on an affidavit sworn by him on the first day of the trial. The purpose of this affidavit, he said, was to correct numerous errors in his affidavit in chief. Notwithstanding this new affidavit which contained numerous corrections, it was still the case that the husband’s recollection of many events was erroneous.
Having said this, the husband made concessions quite readily, including about his status with his partner, Ms BB with whom he cohabits in Asia. I did not have any sense that he was being untruthful.

Mr M

Mr M is the parties’ adult son. He was focused, articulate and unhesitatingly responsive in his answers to questions in cross-examination. He was co-operative with the process.
I have no hesitation in regarding him as a witness of the truth.

Mr D

Mr D is the son of the wife by her former marriage. He was responsive in his answers to questions during cross examination.
I regard Mr D as a witness of the truth.

Ms DD

Ms DD is the wife’s elderly mother. She demonstrated a delightful personality in the courtroom but, presumably due to her advanced years, was unable to be helpful during cross-examination.
Ms DD conceded that she had a very poor recollection for events. It became very clear when she was taken to her affidavit that she could not remember any of the contents of her affidavit. Her recollection was really no more than that she remembered having signed the document.
In these circumstances, in my view, this Court could place no weight on any of the material in her affidavit nor on most of her oral evidence.
Ms DD was very respectful to all present and showed every endeavour to assist the Court.

The Country Y Development

The wife’s father and her uncle were equal owners of a company which held a leasehold interest in a large tract of land in Country Y. The company had operated a plantation and farm on the land.
Upon the death of the wife’s father in 1999 the wife’s mother inherited his share of the company. But there was a dispute between the estate and the wife’s uncle. Following litigation, the wife’s mother came to hold the totality of the leasehold interest in the land.
The wife’s mother tried to sell the land in 2003 but there was little interest. The wife’s son, Mr D suggested to his grandmother that she could sub-divide the land and thereby endeavour to obtain a higher amount for it.
Subsequently there were discussions between Mr D, his grandmother, the wife and the husband about developing the land. It is common ground that money would need to be provided for the project and that this would be provided by Mr D, his grandmother as well as by the husband and the wife.
There is some issue between the parties about details of relevant conversations. The wife said that she and the husband had discussed how much they could afford to provide and that this was $300 000 to $350 000. The husband appeared to be less clear about how much would be made available by the parties. But there can be no doubt that he made a commitment that funds would be provided by him and the wife.
Unfortunately the project failed. Mr D’s company which was developing the land fell into dispute with the Country Y customary owners of the land. Some years of litigation ensued and ultimately the Supreme Court of Country Y found in favour of Mr D’s company. But by this stage the money invested in the project had been lost.
There is an issue between the husband and the wife about how much of this money was provided by them to Mr D for this venture. The wife said that it was a total of $300 000. The husband said it was more like $700 000.
I must say, in my view this matters little. There is no question that the parties put money into the project and that they lost this money.
The submissions on behalf of the husband about how the Court should approach this matter were as follows.
What has occurred by the parties advancing money towards the Country Y development simply cannot be ignored. Although Mr D’s development company, EE Ltd has been deregistered and both Mr D and the wife said that the company is “defunct”, it is clear that there are two parcels of land available, that the land must be worth something and that the land is being marketed by Mr D. It is not clear what the position is so far as creditors are concerned. It is unthinkable that there would be no relevant documents. This development was undertaken by the wife’s “camp” and therefore the Court should assess this matter on the basis that the wife should have been able to provide relevant documents. Therefore the only way that the Court should approach the matter is to bring the parties’ interest in the land into the balance sheet of available property at the value of $300 000 on the basis that the parties and Mr D agreed that at least this amount of money was advanced by the parties to the project.
I am far from persuaded that this would be appropriate. In relation to the suggestion that the wife ought to have been able to produce documentation about this matter, Mr D said that the relevant documents had been lost in March 2015.
In any event, I am satisfied that both the husband and the wife were aware of what was proposed in this venture at the time that they invested their funds in it. The husband said that after a significant amount of the parties’ funds had been provided to Mr D for the project he asked the wife not to make any further funds available. It remains far from clear to me how much money was provided by them to Mr D for this purpose.
Mr D did say that he feels that he has a moral obligation to repay the parties the funds they committed to this project if he is able to sell some of the land and receive the proceeds therefrom. Accordingly, I accept the submission on behalf of the husband that the parties’ investment in the project has some value, at least to the wife. In my view, the appropriate way to deal with this is to regard whatever the parties’ interest in this project is, as a financial resource, and that it is the wife who has this financial resource. I propose to take this into consideration pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”).

The parties’ son, Mr M

Mr M completed his Higher School certificate in 2012. He took a gap year in 2013 and travelled to Asia. He was studying language and culture. He found himself to be sleeping for several hours during the day. He had the experience of working in various capacities in hospitality. He played team sports, although he was injured prior to selection.
Both the husband and the wife were in favour of Mr M spending his gap year in Asia. He was subsidised in terms of his costs by his father.
In 2014, just prior to the parties separating, Mr M commenced at Z University where he studied for a degree. The wife paid his university fees. The husband offered to pay Mr M’s accommodation costs but this was declined by Mr M. For some reason Mr M did not enter into a HECS arrangement in respect of his time at Z University.
Mr M decided to discontinue at Z University. In early 2015 he commenced studying for a degree at the AA School. He lived on campus. He has now completed the degree. The husband had hoped that Mr M would continue at Z University but supported Mr M’s decision to undertake the alternative course.
The HECS scheme was not available to students of the AA School. Mr M’s fees and other costs of the School were paid from an account into which, by arrangement with his mother only, Mr M directed rental income received from the rent of the former matrimonial home at Suburb C.
There is an issue concerning Mr M’s state of health. The wife’s case is that he suffers from a disability. The husband denies this. It is the case that in October or November 2016 Mr M was referred to a sleep specialist, Dr FF, by his psychiatrist, Dr GG. Mr M said that he has been diagnosed in the past with slow processing which accounts for his inability to write down his thoughts or think clearly. He has been prescribed a medication called Modafinil (an amphetamine) and an anti-depressant. Mr M said that he has difficulty staying awake.
Mr M does not have a driver’s licence. He took a test to obtain a licence some months ago but failed this as he was unable to stay awake and was having what he described as micro sleeps. Mr M has undertaken interviews for hospitality management positions but he was not successful in obtaining a position.
Mr M currently lives with his mother at his grandmother’s home at CC Town. He does not pay board, the wife funding his food and living expenses. The wife also provides him with spending money.
Mr M does not receive a pension because of the arrangement under which he receives the rental income from the former matrimonial home.
The husband was not aware of this arrangement until sometime after his lawyers were notified about it in August 2016. He wants to be repaid by the wife one half of the rental monies paid towards Mr M’s educational and living costs.
In my view, the wife should not have arranged for the former matrimonial home to be rented out without first obtaining the husband’s consent to this course. I infer that she did this because she had formed the view that the husband would not have agreed to this. I shall refer to this again below.
Initially the wife was seeking an order for adult child maintenance but abandoned this part of her application. To the extent that it might be inferred that the wife has some responsibility to support Mr M financially, in my view, no such case has been established. Mr M is an adult and if he is unable to support himself, he will be eligible to apply for the appropriate Government assistance.

As indicated above, in early 1998, the parties and Mr D established a business called “Q” in Brisbane.
Mr D had been working in this type of business for some time prior to this.
In his affidavit, the husband said that the wife established this business. But I am satisfied that this was one of the numerous errors contained in the husband’s affidavit. This is because it became clear during cross-examination that the husband was very much involved in the decision to establish the business. There was a business plan developed by the husband and the wife.
The establishment costs, including fit-out and stock were approximately $80 000. These funds were paid from the parties’ savings which included the wife’s severance and holiday pay from her previous employers. Further capital was required and I accept that the wife’s parents contributed $60 000 in three instalments of $20 000. There was an issue about this matter but the wife’s recollection of events in relation to the establishment and operation of this business was better than that of the husband and I accept her evidence in this regard.
The wife and Mr D were the persons primarily involved in working at the business. But they were assisted by Mr D’s partner. The husband also undertook significant work.
Unfortunately the business was established during a period of economic downturn and it failed to develop as a profitable enterprise. As indicated above, it was sold in 1998 or early 1999 for $60 000 which represented a loss.

The Applicable Law

Sub-section 79(1) of the Act provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Sub-section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).
The operation of s 79 was the subject of consideration by the High Court in the case of Stanford v Stanford (2012) 247 CLR 108. In this case the majority said (at page 120) in referring to ss 79(2) and 79(4) as follows:
35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
(footnote omitted)
The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.
And the High Court majority went on to say (at page 122) as follows:
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The parties’ existing legal and equitable interests in property

At the commencement of final submissions there was tendered into the evidence (at Exhibit 7) the following Balance Sheet:

Ownership Description Wife value Husband value

ASSETS

1 Joint Suburb C property 1,800,000 1,800,000

2 Joint Westpac Classic Plus Account #...72 52 52

3 Husband Citibank Interest Plus Savings Account Asia #...03 22,509 22,509

4 Husband Citibank MaxiSave Account Asia #...62 92,005 92,005

5 Husband Westpac Choice Account #...44 13,999 13,999

6 Wife Westpac Choice Account #...39 1,391 1,391

7 Wife Westpac Choice Account #...00 10 10

8 Wife CBA Smart Access Account #...62 990 990

9 Husband COMPANY E shares 155,470 155,470

9.1 Husband Unvested Company E RSU’s 76,606 NIL

10 Husband Funds in Barkus Doolan Trust Account 76,621 76,621

12 Husband 4WD 28,850 28,850

13 Husband Japanese Motor Vehicle 2,100 2,100

14 Joint Contents 3,800 3,800

15 Wife Contents 200 200

15 Husband Personal property 8,000 NA                 [incl. in 14 above]

16 Husband Rental bond 12,445 12,445

17 Wife Funds in PEM Trust Account 95,869 95,869

18 Joint Loan to Mr D [Principal] NIL 300,000

18.1 Joint Interest in Country Y Properties NIL NK

21 Total $2,390.917 $2,606,311

22 ADDBACKS

23 Claimed By Description Wife value Husband value

24 Husband Rental received from Suburb C property and paid to/for Mr M Volke N/A $67,835

25 Husband Monies withdrawn from Wife’s Superannuation post separation N/A $73,750

26

27 Total $0 $141,585

28 LIABILITIES

29 Ownership Description Wife value Husband value

30 Joint Mortgage - Suburb C property - Westpac Account #...90 384,938 384,938

29 Joint Mortgage - Suburb C property - Westpac Account #...93 62,730 62,730

32 Wife Loan from wife's mother, Ms DD 106,000 NA  [Offset by 18 above]

31a Wife Legal fees billed and unpaid 69,218 included elsewhere

31b Wife PEM – anticipated legal expenses 104,000 included elsewhere

35 Wife Loan from wife's son, Mr D 7,000 NIL

36 Husband Credit cards NIL NIL

33 Husband Taxation on Company E RSUs 293 $293

38 Wife Anticipated legal expenses 95,869 NA

39 Joint Anticipated Selling costs of property [3 per cent] 54,000 $54,000

40 Husband Taxation unpaid for prior financial year [Asia] N/K $77,333

41 Husband Unpaid Legal fees Billed $23,059

42 Total $884,048 $602,353

43 SUPERANNUATION

44 Member Name of Fund Wife value Husband value

45 Husband AMP 8,588 8,588

42 Husband Macquarie Investment Management 387,003 387,003

47 Wife BT Super 155 155

48 Total $395,746 $395,746

49 FINANCIAL RESOURCES

50 Ownership Description Wife value Husband value

51 Husband Frequent flyer points NA

52

53 Total $0 $0

54 SUMMARY

55 Total property $2,390,917 $2,606,311

56 Total addbacks $0 $141,585

57 Total liabilities -$884,048 -$602,353

58 Total superannuation $395,746 $395,746

59 Total financial resources $0 $0

60 TOTAL $1,902,615 $2,541,289

Issues

There was some issue about the following items in the Balance Sheet.

Item 9.1 – Unvested Company E RSU’s - $76 606

These are the husband’s unvested Company E share awards. As part of the husband’s remuneration he has the opportunity to receive shares in Company E, although these are not always granted. The relevant scheme is somewhat complex. It is unnecessary to describe it in detail, but it is the case that any shares awarded must be held for three years before they can be taken up. The husband has been allocated 1554 shares but these have not yet become available to be taken up. If the husband was to cease his employment before the three years waiting period had elapsed, he would lose the 1554 shares.
On current values these unvested shares, if taken up, would be worth $76 606 but they are not property in my view because if the husband ceased his employment or died before the due date, he or his estate would not receive the shares. In my view, these unvested shares should be regarded as a financial resource. I shall take these into account pursuant to s 75(2) of the Act.

Items 12 and 13 –4WD and Japanese motor vehicle

It was agreed that the husband would transfer ownership of the vehicles to the wife.

Item 15 – Husband’s personal property - $8000

It is submitted on behalf of the wife that the Court should regard the husband’s personal property as having a value of $8000. This is on the basis of what was said to be an admission against interest, the amount being what the husband estimated in his financial statement his personal property was worth.
On the other hand it was submitted on behalf of the husband that in fact the $8000 is a double count because the items therein have been included at item 14 – joint contents $3800. In support of this submission counsel for the husband said that the wife had said during cross-examination that the joint contents of the parties are in her garage, including the lithograph prints and other personal property referred to in the husband’s financial statement (except the family crest carving) as having a value of $8000.
I accept the submissions on behalf of the husband about this matter and regard his contents as being included at item 14. Accordingly, I do not propose to include in the balance sheet the $8000 at item 15.

Item 24 - $67 835

This is the amount of rental received from the former matrimonial home at Suburb C and paid towards Mr M’s educational fees and related matters and some of his living costs. It is submitted on behalf of the husband that in circumstances where he was not consulted about renting out the former matrimonial home, let alone about applying the rent received to Mr M’s educational and other costs, such rents received should be added back to the balance sheet.
I do not propose to do this. As indicated above, I accept that there is some level of unfairness to the husband in that he was not consulted about this course taken by the wife. As indicated above, the husband said that his view is that adult children should work their way through university. He said that the appropriate course would be to return to him his share of the rent from the former matrimonial home. In my view, the reality is that this money has gone. The husband has been denied the benefit of enjoying any part of the rent produced from this property in which he has an interest.
I propose to take this matter into account pursuant to s 75(2)(o) of the Act, with the consequence that whatever adjustment in favour of the wife is appropriate under the sub-section will be less than had this rent not been dealt with in this manner.

Item 25 – Monies which the wife withdrew from her superannuation fund since separation - $73 750

It was submitted on behalf of the husband that it is difficult to see how the wife could have required such funds for her living and other expenses in circumstances where she had received a total of $91 000 pursuant to the orders made by Stevenson J on 19 September 2014. But the evidence is that $20 000 of this was withdrawn by the wife on 7 June 2013, that is, well before separation, and used for living expenses of the parties. The wife’s evidence was that a further $5000 was used for living expenses for Mr M and herself prior to the said orders being made. In relation to the lump sum of $48 794 which the wife withdrew from her public sector superannuation fund, as indicated above the wife spent that money on paying Mr M’s Z University fees, on some living expenses, legal costs and the costs of herself and Mr M to travel to Asia.
In these circumstances, in my view, it would be inappropriate to add back the amount of $73 750 to the balance sheet.

Item 32 – Loan from wife’s mother – Ms DD - $106 000

The wife said that in December 2016 and early January 2017 she borrowed $100 000 from her mother on account of her legal costs including counsel’s fees. It was submitted on behalf of the wife that this needs to be considered in the context of item 17 which is $95 869 to the wife’s credit in her solicitor’s trust account. It was submitted that this $95 869 would be offset by item 32, the $106 000 loan from her mother.
It was submitted on behalf of the husband that it is highly unlikely that there would ever be any requirement for the wife to repay this money to her mother.
I accept the wife’s evidence that she asked her mother for this loan to put her in funds to be able to provide this money to her lawyers for her legal costs. It is the case that there was inconsistent evidence by the wife’s mother about this matter. Ms DD said in her affidavit that she wanted to be repaid this money when the Court case was over. But in her oral evidence she said that the wife did not owe her any money. For the reasons I have expressed above, I am unable to place weight on Ms DD’s evidence. In my view, if this item was to remain in the balance sheet then the appropriate course would be to regard Ms DD as having made a direct financial contribution in this amount and to adjust the assessment of contributions accordingly. In my view, there is a certain artificiality in such an approach and I prefer to delete the $95 869 from the balance sheet. I do not propose to include in the balance sheet items 17 and 32.

Item 31(a) – Wife’s legal fees billed and unpaid - $69 218

Item 31(b) – Wife’s anticipated legal expenses - $104 000

Item 41 – Husband’s unpaid legal fees - $23 059

I propose to leave each of the parties to pay their legal fees and to not include these in the balance sheet as liabilities consistent with the principles about treatment of legal fees set out in the decision of the Full Court in Chorn and Hopkins (2004) FLC 93-204, particularly at pages 79,316, 79,317 and 79,322.

Item 35 – Loan from Mr D to wife - $7 000

It was submitted on behalf of the husband that in circumstances where the parties had advanced between $300 000 to $350 000 on the wife’s account, or up to $700 000 on the husband’s account towards the Country Y development by Mr D, it would be entirely unreasonable to bring into the balance sheet an alleged liability of the wife to Mr D of $7 000. I agree.

Item 33 – Taxation on husband’s Company E RSU’s - $293

As indicated above, I have removed these awards from the balance sheet and it would be inappropriate to include any estimated taxation thereon so I propose to remove this item.

Item 39 – Anticipated selling costs of former matrimonial home

It was submitted on behalf of the husband that $54 000 which is 3 per cent of the value of the home ($1 800 000) should be included as a liability. This was opposed by the wife. Counsel for the wife submitted that there was no evidence of the likely sale costs and, in any event, the usual practice which is for sale costs to be paid first from the proceeds of sale should be implemented by the orders. I accept this and shall not include the $54 000 as a liability.

Item 40 – Husband’s unpaid Asia tax for financial year 2016 - $77 333

Inclusion of this alleged liability was opposed by the wife. It was submitted that the husband has not put any evidence in proper form before the Court in respect of this alleged liability. I am satisfied that the husband has not paid his tax and I accept the estimate. In circumstances where the husband has paid a significant amount of spouse maintenance, including the mortgage and running costs of the former matrimonial home, in my view, it is fair that the husband’s estimated Asian tax liability be taken into account in the balance sheet.

New Item - $50 000 provision for Capital Gains Tax and income tax

It was also submitted that an amount of $50 000 should be paid from the proceeds of sale to a controlled money account to be used for the purpose of paying expected capital gains tax and income tax as a result of the former matrimonial home having been rented out. I accept this and shall also include this in the balance sheet. These amounts can be adjusted when the actual amounts become known so as to achieve the Court’s ultimate finding.

Accordingly, the parties’ interests in property and superannuation are as follows:

$

1.         Former matrimonial home at Suburb C

1,800,000

2.         Joint Westpac Account No …72

52

3.         Wife’s Westpac Account No …39

1,391

4.         Wife’s Westpac Account No …00

10

5.         Wife’s CBA Account No …62

990

6.         Wife’s home contents

200

7.         Wife’s 4WD

8.         Wife’s Japanese motor vehicle

9.         Wife’s one-half of joint contents

10.      Husband’s Asia Account No …03

11.      Husband’s Asia Citibank Account No …62

28,850

2,100

1,900

22,509

92,005

12.      Husband’s Westpac Account No …44

13,999

13.      Husband’s Company E shares

14.      Husband’s funds in his solicitors’ trust account

15.      Husband’s one-half of joint contents

16.      Husband’s rental bond

155,470

76,621

1,900

12,445

^{_____________}

$2,210,442

The liabilities consist of:
1.Two mortgages over the former matrimonial home with an outstanding balance of   $447,668
2.Provision for costs of sale of the home and for CGT and any income tax from rent  50,000
2.Husband’s unpaid Asia tax  77,333
^{_____________}
$1,635,441
The parties’ interests in superannuation are as follows:
1.Husband’s AMP  $8,588
2.Husband’s Macquarie Investment Management    $387,003
3.Wife’s BT Super       $155
$395,746
^{_____________}

$2,031,187

As indicated above, the husband has a financial resource in his unvested Company E share awards which if taken up would have a value of $76 606.

Sub-Section 79(2)

Sub-section 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In their decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:
88.In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
As indicated above, these parties acquired numerous properties over the duration of their marriage culminating in their major asset now being the former matrimonial home at Suburb C with an agreed value of $1 800 000. This property was acquired as a home to be enjoyed by them and Mr M. In my view, there is a principled reason for altering their interests in the Suburb C property, namely, because they have not lived together in the home since the husband moved to live in Asia in April 2014. Both want the home to be sold.
In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

I have referred above to the property of each of the parties at the commencement of cohabitation. There was a significant disparity in favour of the wife.
On the one hand, the wife had approximately $15 000 in savings, a 4WD which had been purchased new in 1992 for approximately $35 000 and Property I which was sold in 2002 for $210 000. The wife also had 100 head of livestock, as well as farm materials. Property I was unencumbered at the commencement of cohabitation. In addition, the wife had her interest in the H Town property which she subsequently transferred to her brother for $80 000, some furniture as well as some superannuation with MLC.
On the other hand, at the commencement of cohabitation, the husband had a small (less than $1000) superannuation benefit, savings of approximately $15 000 and a Japanese motor vehicle of modest value. He also had a liability of $1500 to the Country K Education Loan Scheme.
I have referred above to the parties’ respective histories of employment and of acquisition of properties.
In approximately late 2005 the wife’s mother gave her $63 000 being the balance of $123 000 which she had transferred to the wife to use to pay legal fees with respect to a dispute about the wife’s father’s estate. As indicated above, the wife also received a gift from her father of the German motor vehicle (later traded in for $5000) and the yacht which she sold for $80 000.
The wife earned more income than the husband in the early period of cohabitation and marriage. But, as indicated above, her employment ceased in mid-1995 and she has not worked in the paid workforce since that time apart from the work she undertook in relation to the Q Business.
It is clear that the husband has made the overwhelming financial contributions. In his most recent affidavit he set out details of his income over the years. Although his taxable income at the commencement of cohabitation was modest, by 2005 it was $214 419, in 2009 it was $436 603 and in the year of separation, namely 2014, it was $358 297.
The husband also assisted the wife with some work on her H Town property, including weeding, fencing, slashing, ground water work and preparing reports.
The wife has made the overwhelming contribution to the welfare of the family comprising the parties and their son, Mr M and as homemaker and parent.
The husband has also made a significant contribution to the welfare of the family and as homemaker and parent. But he has been the major breadwinner for the family whereas the wife has been the primary parent and homemaker. This is the way that the parties arranged their responsibilities.
Each of the parties made significant contributions to the establishment of the Q Business. I have referred to these contributions above. It is also clear that both parties made financial contributions to the business by way of the wife withdrawing amounts from the parties’ joint savings account to provide Mr D with money for the business from time to time. As indicated above, the quantum of this is not clear.
It was submitted on behalf of the wife that, apart from the initial contributions made by the wife which were significant, together with her inheritance and gifts received, the Court would assess the parties’ contributions overall as having been equal. However, due to the significant value of those assets, and them not being offset by the husband, it was submitted that the wife’s contributions overall have been 55 per cent.
It was submitted on behalf of the husband that his contributions overall, that is, from the commencement of cohabitation to the date of the hearing, should be assessed as having been 55 per cent to the wife’s 45 per cent. This was said to be on the basis that although the wife had more property than the husband at the commencement of cohabitation so significant have his contributions been, particularly after separation, compared with what was said to be almost no contribution by the wife following separation, whatever edge the wife might be said to have had because of her greater initial contributions, this has been outweighed by the husband’s more significant contributions from his earnings over the years.
I accept, as counsel for the husband has submitted, that following separation there has been an imbalance of contributions in favour of the husband.
In all these circumstances, in my view, the contributions by the parties overall are close to equal. But in my view, in the assessment of the entirety of contributions from commencement of cohabitation to the hearing, the wife remains slightly ahead of the husband because of her much more significant initial contributions. In my view, the contributions overall have been 52 per cent by the wife and 48 per cent by the husband.

Sub-section 75(2) matters

The wife is 65 years of age and in reasonable health.
She is not employed in the paid workforce. Her weekly income consists of the Age Pension of $249 plus the $1750 spousal maintenance paid by the husband. The wife’s mother also contributes to the wife’s living expenses. As also indicated above, the wife has directed the rent from Suburb C to Mr M.
As indicated above, the wife has not worked in paid employment, apart from her work in the business and some limited work which she undertook briefly for the Government of Country Y, since mid-1995 when she ceased working as a general manager.
The wife has a Bachelor Degree and a Master’s Degree. She undertook study for a course during 2015 to endeavour to supplement her qualifications. But she is not yet certified.
The last time the wife made a job application was during 2015 when she applied for a position in Asia. She was unsuccessful. The wife said that she looked at a vacancy with an international organisation but the relevant forms indicated that persons older than 59 years would not be considered.
The wife was shown a bundle of advertisements seeking applications for positions (Exhibit 5) in both the private and public sectors. The wife said that she would not be successful in such applications because she has been out of the paid workforce for more than 20 years and also because of her age.
On the other hand, the husband is 53 years of age and he is in reasonable health. His income converted from Asian dollars to Australian dollars for the financial year in Asia ended 31 December 2016 was $487 094. His income after making provision for tax was in excess of $400 000 for the 2016 year. This is approximately $7692 per week. As indicated above, he rents a home in Asia in which he resides with Ms BB and her two children. He and Ms BB share their weekly household expenses. Recently Ms BB sold her home. She is not financially dependent in any way on the husband.
In addition to salary, the husband is eligible to participate in the Company E share awards scheme and might receive benefits by way of share awards, although this is not certain. I have referred to the relevant scheme above.
As indicated above, the wife is living with her elderly mother in the latter’s home. As also indicated above, the wife’s mother pays much of the costs of running this household, the value to the wife being estimated by the wife as being $1000 per week. In return, the wife is her mother’s carer.
The wife estimates the weekly costs of her own support as being $1314 per week. In my view, particularly bearing in mind that the wife is living with her mother in the circumstances detailed, the wife has over-estimated her weekly costs. In my view, the figure would be closer to $1000 per week.
The husband included in his affidavit a table of expenses which he asserted were the wife’s weekly expenses when the parties were cohabiting. This came to a total of $686 weekly. In my view, this would be an under-estimate.
On the other hand, the husband estimated his own average weekly expenses as being $2726. This represented a standard of living well above that reflected in the wife’s estimates. For example, the husband estimated that his costs for just the items entertainment, holidays, cleaning and repairs/replacements of furnishings and appliances was $1180 per week. Whereas the wife’s estimate of her total weekly expenses was $1314 as I have said.
In addition, the husband requires $1487 to pay his income tax, $1441 for his share of the rent, $22 for water, $21 for insurance, $16 for credit card payments which if added to the $2726 would be a total weekly personal expenditure of $5713. This would leave him with a substantial weekly surplus of income compared with expenditure if he is no longer required to pay spouse maintenance and the Suburb C property outgoings.
The parties have been married for approximately 23 years. In my view, the marriage has affected the earning capacity of the wife. Around the time of marriage she was working as a general manager with significant organisations. Her annual income at the time was $140 000 - $150 000 per annum which was a substantial income by community averages at the time. A few months prior to the birth of the parties’ child, Mr M, the wife ceased her employment and, as indicated above, apart from working in the Q Business and some limited work for the Country Y Government, the wife has remained out of the paid workforce.
At the same time, the husband, to his credit, has progressed in his career. He has had continuity of employment and been able to upgrade his professional qualifications. When he has been offered opportunity for advancement in his career, such as moving to Brisbane in 1997 and subsequently to Sydney in 2005, the wife supported him in these pursuits.
As one looks at the parties’ circumstances now, after a long marriage during which a child has been raised to adulthood, there are significant differences between the parties. The husband is 53 years of age and enjoying an impressive professional career with an income after tax in the vicinity of $7692 per week and a possibility of obtaining share awards. On present indications he would appear to be able to continue earning income at this rate for many years. Clearly the wife has made a significant contribution to the advancement of his career by assuming the role of primary parent and homemaker and by her preparedness to change residence to accommodate his career opportunities. This has had the effect of freeing the husband from much of the responsibilities of parenting Mr M and has enabled the husband to prioritise his career.
On the other hand, the wife gave up what on any objective assessment must have been a promising and lucrative career as a professional manager, to concentrate on parenting the parties’ son, managing the household duties and caring for the husband. At 65 years of age and an absence of more than 20 years out of paid employment in her area of professional qualifications and experience, in my view, the prospects of the wife being able to re-engage in paid employment at anything like the level she previously enjoyed must be regarded as low. This is a most significant s 75(2) matter.
As indicated above, I also take into account that the wife rented out the Suburb C home without seeking the husband’s consent and without paying to him any of the rent received. As I have said, she has applied the bulk of the money received to paying Mr M’s costs associated with his education at the AA School. As I have also said, the husband expressed the view that he would have preferred Mr M to have worked his way through his tertiary education. It was also submitted on behalf of the husband that the wife did this in circumstances where she had previously failed to persuade the Court to make an adult child maintenance order for Mr M. I propose to reduce to some extent the adjustment I would otherwise have made in favour of the wife to take account of this matter.
I also take into account the fact that the husband has a financial resource in the Company E RSU awards and the fact that the wife has a financial resource in the Country Y development.
I accept that in the case of Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 the Full Court of this Court indicated that trial judges need to consider the value of the adjustment in real terms. The Full Court said at FLC page 81,911 as follows:
There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10 per cent and 20 per cent. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue. (added emphasis)
It was submitted on behalf of the wife that a s 75(2) set off in favour of the wife of 20 per cent of the available property and superannuation would achieve a just and equitable order. In my view, such an adjustment, requiring as it would a differential between the parties of some $812 475, would be too high considering all the s 75(2) matters which are relevant and also the fact that the assessment of contributions falls in favour of the wife.
It was submitted on behalf of the husband that a 10 per cent adjustment in favour of the wife would be appropriate. But only if the Court was to assess contributions in the husband’s favour.
In my opinion, a 15 per cent adjustment would achieve a just and equitable order. This would be a differential of $609 356.

Conclusion and fourth step

The wife is to have 67 per cent of the property and superannuation available for division between the parties. This is property and superannuation with a value of $1 360 895 (67 per cent of $2 031 187 = $1 360 895).
The wife has the following:

$

1.         Joint Westpac Account No …72 (husband would transfer his interest to the wife)

52

2.         Westpac Account No …39

1,391

3.         Westpac Account No …00

10

4.         CBA Account No …62

990

5.         Home contents

200

6.         4WD (husband would transfer to the wife)

7.         Japanese motor vehicle (husband would transfer to the wife)

8.         One-half of joint contents

9.         BT Super

28,850

2,100

1,900

        155

$35,648

To achieve property and superannuation with a value of $1 360 895 the wife would require additional property with a value of $1 325 247 ($1 360 895 - $35 648 = $1 325 247).
Both parties have sought a superannuation splitting order. I propose to make such an order attributing a base amount of $150 000 to the wife. This is because I would not regard it to be fair for so much of the husband’s property settlement to be “tied up” in superannuation.
On this basis, the wife would then have property and superannuation with a value of $185 648 ($35 648 + $150 000 = $185 648). To achieve property and superannuation with a value of $1 360 895 the wife would require additional property with a value of $1 175 247 ($1 360 895 - $185 648 = $1 175 247). This would come from the former matrimonial home.
Both parties desire the sale of the former matrimonial home. The equity in the home is $1 302 332 ($1 800 000 - $447 668 - $50 000 (provision for CGT and tax) = $1 302 332). The sum of $1 175 247 would be paid to the wife from the proceeds of sale of the home which would leave the balance of $127 085 ($1 302 332 - $1 175 247 = $127 085) to be paid to the husband. The amount of $1 175 247 would be 90.242 per cent of the equity.
On the other hand, the husband is to have 33 per cent of the property and superannuation available for division. This is property and superannuation with a value of $670 292 (33 per cent of $2 031 187 = $670 292).
The husband has the following:

$

1.         Asia Account No …03

22,509

2.         Asia Citibank Account No …62

92,005

3.         Westpac Account No …44

13,999

4.         Company E shares

5.         Funds in solicitors’ trust account

6.         One-half of joint contents

7.         Rental bond

155,470

76,621

1,900

12,445

8.         AMP Superannuation

8,588

9.         Adjusted Macquarie Investment Management Superannuation ($387,003 - $150,000 = $237,003)

237,003

$620,540

But the husband also has his estimated Asia tax liability of $77 333. Accordingly, the husband has net property and superannuation with a value of $543 207 ($620 540 - $77 333 = $543 207). To this would be added the $127 085 from the proceeds of sale of the home. The result would be that the husband would have $670 292 ($543 207 + $127 085 = $670 292). The amount of $127 085 would be 9.758 per cent of the equity in the Suburb C property.
The orders I propose will not affect the earning capacity of either party.
The effect of the orders would be that the husband would have his superannuation in the adjusted amount of $237 003. In addition, he would have an amount in the vicinity of $127 085 from the proceeds of sale of the home (although this will be reduced by the costs of sale), cash in his bank accounts of $128 513 and his Company E shares worth $155 470. With the rental bond this would amount to $423 513. This could be used as a deposit on a home if he so desired.
The husband has considerable surplus of income above his living costs which could be used to service borrowings for a home, especially taking account of an adjustment for rent saving.
The husband has legal fees to pay. But the funds in his solicitor’s trust account should go a considerable way towards meeting the fees.
On the other hand, the wife would have an amount in the vicinity of $1 175 247 from the proceeds of sale of the home (although this also will be reduced by the costs of sale). The wife lives in her mother’s home, as indicated above, and it is therefore far from clear to me whether she might wish to purchase a home for herself. If so, the $1 175 247 would go a substantial way towards funding a home.
The wife would also have $150 000 in the Macquarie Investment Management Superannuation fund. She might be able to have access to this money although this was not clear. In addition, the wife also has the personal property and superannuation referred to above.
In all the circumstances, in my view, the orders I propose, based on the wife having 67 per cent of the property and superannuation and the husband having 33 per cent thereof, will reflect a just and equitable result.

Spousal maintenance

As indicated above, the wife has sought the following orders:
11.The husband pay to the wife the sum of $2,105 per week by way of spousal maintenance, such amount to be paid into a bank account nominated by the wife with the first payment to be made within 7 days from the date of these orders.
12.The amount payable by the husband pursuant to [the above order] is to be varied on the review date each year from the date of the making of these Orders to such sum as shall be determined by multiplying the amount being paid immediately prior to the review date by the fraction A/B where "B" is the CPI in respect of the June quarter ending 12 months prior to the review date and "A" is the CPI in respect of the June quarter ending on the day immediately preceding the review date.
In order to succeed in this application it would be necessary for the wife to establish the threshold requirement set out in s 72(1) of the Act. Sub-section 72(1) is as follows:
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).
Under the property orders I propose the wife will be the owner of property and superannuation with a value in the vicinity of $1 360 895. The husband will have property and superannuation with a value of less than half this amount, although he does have a strong capacity to earn income as I have said.
As indicated above, the wife is living in her elderly mother’s home and she is her mother’s carer. A significant adjustment of property and superannuation has been made, largely for the reason that the husband has a strong capacity for earning income but the wife does not.
In all the circumstances of this case, in my view, the property and superannuation ordered in favour of the wife will be sufficient to enable the wife to support herself adequately within the meaning of the Act.
Accordingly, in my view, the wife is unable to establish the threshold matter in s 72(1) of the Act. Her spousal maintenance application will be dismissed.

I certify that the preceding two hundred (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 12 April 2017.

Associate:

Date: 12 April 2017

[2017] FamCA 237

12 April 2017

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Costs

Remedies

Consent

Jurisdiction

Statutory Construction

Ownership	Description		Wife value		Husband value
ASSETS
1	Joint	Suburb C property	1,800,000		1,800,000
2	Joint	Westpac Classic Plus Account #...72	52		52
3	Husband	Citibank Interest Plus Savings Account Asia #...03	22,509		22,509
4	Husband	Citibank MaxiSave Account Asia #...62	92,005		92,005
5	Husband	Westpac Choice Account #...44	13,999		13,999
6	Wife	Westpac Choice Account #...39	1,391		1,391
7	Wife	Westpac Choice Account #...00	10		10
8	Wife	CBA Smart Access Account #...62	990		990
9	Husband	COMPANY E shares	155,470		155,470
9.1	Husband	Unvested Company E RSU’s	76,606		NIL
10	Husband	Funds in Barkus Doolan Trust Account	76,621		76,621
12	Husband	4WD	28,850		28,850
13	Husband	Japanese Motor Vehicle	2,100		2,100
14	Joint	Contents	3,800		3,800
15	Wife	Contents	200		200
15	Husband	Personal property	8,000		NA [incl. in 14 above]
16	Husband	Rental bond	12,445		12,445
17	Wife	Funds in PEM Trust Account	95,869		95,869
18	Joint	Loan to Mr D [Principal]	NIL		300,000
18.1	Joint	Interest in Country Y Properties	NIL		NK
21	Total	$2,390.917		$2,606,311
22	ADDBACKS
23	Claimed By	Description	Wife value		Husband value
24	Husband	Rental received from Suburb C property and paid to/for Mr M Volke	N/A		$67,835
25	Husband	Monies withdrawn from Wife’s Superannuation post separation	N/A		$73,750
26
27	Total	$0		$141,585
28	LIABILITIES
29	Ownership	Description	Wife value		Husband value
30	Joint	Mortgage - Suburb C property - Westpac Account #...90	384,938		384,938
29	Joint	Mortgage - Suburb C property - Westpac Account #...93	62,730		62,730
32	Wife	Loan from wife's mother, Ms DD	106,000		NA [Offset by 18 above]
31a	Wife	Legal fees billed and unpaid	69,218		included elsewhere
31b	Wife	PEM – anticipated legal expenses	104,000		included elsewhere
35	Wife	Loan from wife's son, Mr D	7,000		NIL
36	Husband	Credit cards	NIL		NIL
33	Husband	Taxation on Company E RSUs	293		$293
38	Wife	Anticipated legal expenses	95,869		NA
39	Joint	Anticipated Selling costs of property [3 per cent]	54,000		$54,000
40	Husband	Taxation unpaid for prior financial year [Asia]	N/K		$77,333
41	Husband	Unpaid Legal fees Billed	$23,059
42	Total	$884,048		$602,353
43	SUPERANNUATION
44	Member	Name of Fund	Wife value		Husband value
45	Husband	AMP	8,588		8,588
42	Husband	Macquarie Investment Management	387,003		387,003
47	Wife	BT Super	155		155
48	Total	$395,746		$395,746
49	FINANCIAL RESOURCES
50	Ownership	Description	Wife value		Husband value
51	Husband	Frequent flyer points	NA
52
53	Total	$0		$0
54	SUMMARY
55	Total property		$2,390,917		$2,606,311
56	Total addbacks		$0		$141,585
57	Total liabilities		-$884,048		-$602,353
58	Total superannuation		$395,746		$395,746
59	Total financial resources		$0		$0
60	TOTAL		$1,902,615		$2,541,289

$
1. Former matrimonial home at Suburb C	1,800,000
2. Joint Westpac Account No …72	52
3. Wife’s Westpac Account No …39	1,391
4. Wife’s Westpac Account No …00	10
5. Wife’s CBA Account No …62	990
6. Wife’s home contents	200
7. Wife’s 4WD 8. Wife’s Japanese motor vehicle 9. Wife’s one-half of joint contents 10. Husband’s Asia Account No …03 11. Husband’s Asia Citibank Account No …62	28,850 2,100 1,900 22,509 92,005
12. Husband’s Westpac Account No …44	13,999
13. Husband’s Company E shares 14. Husband’s funds in his solicitors’ trust account 15. Husband’s one-half of joint contents 16. Husband’s rental bond	155,470 76,621 1,900 12,445
^{_____________}
$2,210,442

$
1. Joint Westpac Account No …72 (husband would transfer his interest to the wife)	52
2. Westpac Account No …39	1,391
3. Westpac Account No …00	10
4. CBA Account No …62	990
5. Home contents	200
6. 4WD (husband would transfer to the wife) 7. Japanese motor vehicle (husband would transfer to the wife) 8. One-half of joint contents 9. BT Super	28,850 2,100 1,900 155 $35,648

$
1. Asia Account No …03	22,509
2. Asia Citibank Account No …62	92,005
3. Westpac Account No …44	13,999
4. Company E shares 5. Funds in solicitors’ trust account 6. One-half of joint contents 7. Rental bond	155,470 76,621 1,900 12,445
8. AMP Superannuation	8,588
9. Adjusted Macquarie Investment Management Superannuation ($387,003 - $150,000 = $237,003)	237,003
$620,540