Wade & Wade
[2023] FedCFamC2F 288
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wade & Wade [2023] FedCFamC2F 288
File number(s): SYC 5475 of 2018 Judgment of: JUDGE MORLEY Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – property – application for final orders – where Husband seeks sale of the former matrimonial home – where Wife seeks to reside in the former matrimonial home until 2029 – where Husband has 89.5% of the parties’ total superannuation entitlements – where it is just and equitable to achieve a net division of the asset pool as between the parties with a division of 60% to the Wife and 40% to the Husband – where it is just and equitable to achieve a net division of the parties’ superannuation entitlements with a division of 54% to the Wife and 46% to the Husband Legislation: Family Law Act 1975 (Cth) ss 75, 79, 81, 90XZD Cases cited: Dickons & Dickons [2012] FamCAFC 154
Fields & Smith [2015] FamCAFC 57
Fontana & Fontana [2018] FamCAFC 63
Grier & Malphas (2017) 55 Fam LR 107
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395
MacKenzie & MacKenzie (1978) 4 Fam LR 374
Marriage of Crapp (No 2) (1979) 5 Fam LR 47
Marriage of Whitford (1979) for Fam LR 754
Stanford & Stanford (2012) 247 CLR 108
Tamaniego v Tamaniego [2010] FamCAFC 254
Division: Division 2 Family Law Number of paragraphs: 154 Date of hearing: 23-25 May 2022 Place: Sydney Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Mervyn Finlay Thorburn & Marshall ORDERS
SYC 5475 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WADE
Applicant
AND: MR WADE
Respondent
order made by:
JUDGE MORLEY
DATE OF ORDER:
24 march 2023
THE COURT ORDERS THAT:
1.That pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”):
(a)Both parties shall forthwith do all things and sign all documents necessary to list for sale the property at B Street, Suburb C being folio identifier … (“the property”) by public auction with an agent to be agreed upon between the parties, and failing agreement within a period of 14 days of the date of these orders as nominated by the President of the Real Estate Institute of NSW or his nominee, at a reserve price as agreed between the parties, and failing agreement, as recommended by the selling agent.
(b)The solicitors acting on the sale shall be as agreed between the parties within 14 days of the date of these orders or failing such agreement as nominated by the President of the Law Society of NSW.
(c)In the event the property fails to sell at such auction, then it shall be immediately relisted for sale by private treaty for a period of (two) 2 months with the same selling agent unless otherwise agreed in writing, at a reserve price reduced by 5% or as otherwise agreed between the parties in writing, and if it fails to sell during this period, it shall be relisted for sale by auction at a reserve price reduced by a further 5% or as otherwise as agreed between the parties in writing.
(d)In the event the property fails to sell in terms of the previous paragraph of this order, then it shall immediately be relisted for sale by public auction on the same terms as above save that there shall be no reserve price and the property shall sell to the highest bidder.
(e)That the proceeds from the sale of the property shall be distributed as follows:
(i)in payment of the mortgage currently secured over the B Street, Suburb C property;
(ii)in payment of any outstanding strata fees or levies;
(iii)in payment of the selling agent’s costs and commission;
(iv)in payment of the legal costs and disbursements from the sale;
(v)in payment of any maintenance or preparation costs for the property incurred in terms of these orders.
(vi)The balance then remaining to be divided so as to achieve a 60% division to the Wife and a 40% division to the Husband of the non-superannuation asset pool on the basis that the Wife has $24,157 prior to such division, and the Husband has $26,635 prior to such division.
(f)Pending sale of the B Street, Suburb C property, the Wife shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the B Street, Suburb C property and shall make all such payments as and when they fall due and hereby indemnifies the Husband in respect of all other liabilities incurred in that respect prior to the date of sale.
(g)The Wife shall have exclusive occupation of the B Street, Suburb C property until its sale.
(h)During the marketing of the property, the Wife shall maintain it in a neat and tidy condition and shall allow inspection to take place at all reasonable times in the company of the selling agent and shall absent herself from the property during such inspections.
(i)The parties shall jointly share any maintenance or preparation expenses agreed upon between them to be undertaken to the B Street, Suburb C property prior to auction, and for this purpose the wife shall allow the husband access to the property upon being given 7 days written notice from him to inspect it.
(j)The Wife shall manage all trades persons organised by the parties to attend the property to perform any basic repair work, including broken kitchen doors so that all items fully function as intended. This will include any repair person arranged by the husband and agreed upon by the parties.
(k)The wife shall additionally allow the husband access to the property within 21 days of the before the completion date of any sale to remove his personal possessions and any other agreed-upon items, and during such access the wife shall absent herself from the property but may have up to two nominees in attendance at the B Street, Suburb C property.
(l)The husband is the sole owner in law and equity as between himself and the wife of the pool table, antique clock, statues, wall items, and the old record player all previously owned by his grandmother, and the golf clubs, gym weights, garage tools, his CD, music, and book collection and sporting memorabilia.
(m)The husband is the sole owner in law and equity as between himself and the wife of:
(i)His ANZ bank account ending #...56
(ii)His Company D and Company E shares;
(iii)His Motor Vehicle 1; and
(iv)His household contents.
(n)The wife is the sole owner in law and equity as between herself and the husband of:
(i)Her Commonwealth Bank account ending #...68;
(ii)Her Motor Vehicle 2;
(iii)Her interest in Company F; and
(iv)Her household contents.
(o)Both parties shall be solely responsible for all debts in their own name and shall indemnify and keep the other party indemnified from any liability in relation thereto.
(p)That the Court allocates a base amount of $292,419, as required by section 90XT(4) of the Family Law Act 1975 (Cth), to the wife, Ms Wade (born in 1973) out of the husband’s (Mr Wade born in 1966) interest in the Super Fund 1 member number ….
(q)That in accordance with Section 90XT(1)(a) of the Act the court orders that:
(i)the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(ii)the husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to out of the husband’s interest in Super Fund 1 member number …, is correspondingly reduced.
(r)That the Trustee and the parties shall do all acts and things and sign all such documents necessary to:
(i)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife by order 1(p) and (q); and
(ii)Pay the entitlement whenever the Trustee makes a splittable payment out of the husband’s interest in the Super Fund 1 member number ….
(s)That orders 1(p), (q) and (r) shall have effect from the operative time and that the operative time for the purposes of those orders four (4) business days from the date on which these orders are served upon the Trustee.
2.That in the event that either party fails, refuses or neglects to sign any document or instrument required to give effect to these orders then pursuant to section 106A of the Family Law Act 1975 (Cth) the Registrars of the Federal Circuit and Family Court of Australia, Sydney Registry, are appointed to sign and do all things required to give effect to such document or instrument in place of the party who has failed, refused or neglected to sign.
3.All outstanding Applications and Responses are withdrawn and dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Wade & Wade has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
The applicant wife, Ms Wade (“the wife”), and the respondent husband, Mr Wade (“the husband”), were married in 2004, separated on 1 January 2012 and divorced on 7 May 2019.
There are two children of the marriage, X born in 2005, and Y born in 2010, aged 16 years and 12 years of age at the time of the final hearing. There is dispute between the parties as to when they commenced their cohabitation – wife asserts 1998 and husband asserts some time in 2000.
These proceedings were commenced and were set down for final hearing on parenting and property settlement issues, but the parents wisely and in a child focus manner reached agreement in relation to parenting issues on the first day of the hearing and final parenting orders were made by consent.
These Reasons relate only to the property settlement issues between the parties.
The final hearing took place on 23, 24 and 25 May 2022. The wife was represented by Ms Bateman of Counsel and the husband by Mr Othen of Counsel.
The proceedings were commenced by the wife filing an Initiating Application seeking parenting and property settlement orders on 28 August 2018, to which the husband filed his Response on 19 October 2018.
THE MATERIALS RELIED UPON AT FINAL HEARING
The wife relied upon the following materials:
(a)Outline of Case Document prepared by her solicitor and filed 18 May 2022;
(b)Amended Minute of Proposed Orders dated 20 May 2022;
(c)Amended Initiating Application filed 18 October 2021;
(d)Affidavit of the wife adopted by her signature on 20 and filed 24 January 2022;
(e)Proof of Evidence of the wife (handwritten original and types transcript) admitted into evidence as Exhibit A1; and
(f)Financial Statement of the wife adopted by her signature and filed on 5 February 2022.
The wife’s affidavit of 20 January 2022 and her Financial Statement of 5 February 2022 were not sworn or affirmed and filed due to COVID-19 circumstances. During examination in chief the wife was asked if she has sworn each of the documents on the specified dates and she answered that she had done so and she confirmed that she relied on each of those documents as her evidence in the case.
It was pointed out to her at the start of her cross examination by Mr Othen that neither document had been sworn, but in answer to questions put she gave evidence on oath that she had “told the truth” in both documents and when asked, “[the documents] were not sworn before a Justice of the Peace or lawyer, but you say that the affidavit is accurate and truthful?” the wife answered, “Yes.”
Counsel for the husband presented a list of objections to the wife’s affidavit of 20 January 2022 in compliance with the directions for trial and those objections were dealt with at the commencement of the hearing and where successful, the objected material was struck out from the affidavit.
Counsel for the husband referred to the wife’s affidavit and Financial Statement not having been either sworn or affirmed, even on formal basis in evidence in chief in the witness box, but fairly and properly did not object to the documents being received into evidence. I have accepted both documents as evidence in chief of the wife in the hearing.
The husband relied upon the following materials:
(a)Case Outline Document prepared by the husband’s Counsel and filed 19 May 2022;
(b)Minute of Final Orders sought by the husband filed 19 May 2022;
(c)Amended Response to Initiating Application filed 24 January 2022;
(d)Affidavit of the husband sworn 17 and filed 24 January 2022, except Annexure “E”;
(e)Affidavit of the husband sworn 11 and filed 12 April 2022;
(f)Affidavit of Mr Z, the husband’s brother, sworn 22 and filed 25 January 2022, but only as to paragraphs 9, 16, 17 and the first sentence of paragraph 19, and subject to the evidence struck out on objection in paragraphs 9 and 16; and
(g)Financial Statement of the husband adopted by his signature on 13 and filed 24 January 2022.
The husband’s Financial Statement was not sworn or affirmed by him, but was adopted by him by signature. During his examination in chief he confirmed that it was a document that he relied upon in evidence and no objection was taken to that document by Counsel for the wife, understandably in view of what I have referred to above in relation to the wife’s trial affidavit and Financial Statement. I have accepted the husband’s Financial Statement as evidence in chief of the husband in the hearing.
The following documents are also in evidence as exhibits:
(a)Exhibit C1 – a Joint Balance Sheet;
(b)Exhibit A2 – a letter dated 11 January 2022 from the husband’s solicitors to Super Fund 2 and letter of 19 January 2022 from Super Fund 2 to the husband’s solicitors – evidencing procedural fairness to the trustees of the husband’s interest in Super Fund 2 in relation to a superannuation splitting order sought by the husband;
(c)Exhibit R1 – an email dated 28 February 2019 serving a copy of a Divorce application filed that day for the wife and a copy of the Divorce application as filed;
(d)Exhibit R2 – strata levy notices dated 18 January and 18 April 2022 for Strata Plan No … and B Street, Suburb C NSW;
(e)Exhibit R3 – a statement addressed to the husband from G School dated 4 May 2022 for account ending #...99, and a statement addressed to the husband from H School dated 4 May 2022 for account ending #...40; and
(f)Exhibit R4 – 10 colour photographs identified by the husband in his oral evidence in chief as having been taken by him and showing his Motor Vehicle 3.
At the conclusion of the final hearing on 25 May 2022 an order was made that:
…the Applicant Wife is directed to send a notice of procedural fairness from the Trustee of the affected superannuation fund to the Respondent Husband’s instructing solicitors and to my Associate by email.
That order related to requiring the wife to provide procedural fairness in compliance with section 90XZD of the Family Law Act 1975 (“the Act”) to Super Fund 1 Pty Ltd, as trustee of the Super Fund 1, in relation to the superannuation splitting order sought by the wife. Super Fund 2 merged with another fund on 28 February 2022 to form the Super Fund 1. By email dated 11 July 2022 the Court received, in compliance with that order, a copy of a letter dated 11 July 2022 from the Super Fund 1 to the solicitors for the wife evidencing procedural fairness to the trustee in relation to the wife’s proposed order. I accept that document into evidence.
I have read and considered the whole of the materials relied upon by the parties, subject to successful objections, and I have reviewed the oral evidence of the parties and Counsel’s submissions.
The competing proposals of the parties
The wife sought the following orders:
1.That the wife have exclusive occupation of [B Street, Suburb C] being Folio Identifier […] (“the [B Street, Suburb C] property”) until 1 February 2029.
2.That the wife be solely responsible for the payment of the mortgage on the [B Street, Suburb C] property until settlement of the sale pursuant to order 4 of these orders.
3.That the husband be solely responsible for the payment of the strata levies, council rates and water rates until settlement of the sale assumed to order 4 of these orders.
4.That by 15 January 2029 the parties do all acts and things and execute all documents necessary to list for sale by public auction as agreed between them the [B Street, Suburb C] property as set out in the following manner [the orders sought then sets out the mechanics for sale].
5.On settlement of the sale of the [B Street, Suburb C] property the proceeds of sale shall be paid as follows:
a.in payment of real estate agent’s commission, advertising expenses, auction fees and conveyancing/legal fees on sale;
b.The amounts required to pay all outstanding council rates and water rates on the [B Street, Suburb C] property;
c.In payment of principal and interest due and payable in respect of any mortgage registered on the [B Street, Suburb C] property;
d.To reimburse the party who paid for all repairs, maintenance or improvements as recommended by the real estate agent to prepare the property for sale upon provision of all receipts by the paying party to the other party before any money is paid in accordance with this order;
e.55% of the balance of the proceeds of the sale to the wife;
f.The remaining balance to the husband.
6.That the wife retain all right, title and interest in her [Super Fund 3] member number […].
7.That the court allocate a base amount of $300,000.00, as required by Section 90XT(4) of the Family Law Act 1975, to the wife, [Ms Wade] (born [in] 1973) out of the husband’s ([Mr Wade] born [in] 1966) interest in the [Super Fund 1] member number […].
8.That in accordance with Section 90XT(1)(a) of the Act the court orders that:
a.the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
b.the husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to out of the husband’s interest in [Super Fund 1] member number […], is correspondingly reduced.
9.That the Trustee and the parties shall do all acts and things and sign all such documents necessary to:
a.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife by order 7; and
b.pay the entitlement whenever the Trustee makes a splittable payment out of the husband’s interest in the [Super Fund 1] member number […].
10.That orders 7, 8 and 9 shall have effect from the operative time and that the operative time for the purposes of those orders four (4) business days from the date on which these orders are served upon the Trustee.
11.That the husband retain all right title and interest in his [Super Fund 4] account member number […].
12.That the husband retain all right, title and interest in his [Super Fund 5] superannuation account member number […].
13.That the wife retain all her right, title and interest in the [Motor Vehicle 2] registered number […].
14.That the husband retain all his right title and interest in the [Motor Vehicle 1] registered number […].
15.That the wife retain all right, title and interest in the business known as [Company F].
16.That within 14 days of the date of these orders the Husband shall provide to the wife a copy of every photograph of the children and the wife that were stored on the family computer that is in the husband’s current possession, custody and control on a USB stick or other electronic storage device.
17.Both parties shall be solely responsible for all debts in their own name as at the date of these orders and shall indemnify and keep indemnified the other party from any liability in relation thereto.
18.Both parties shall be solely responsible for any past, present or future taxation liability payable to the Australian Taxation Office and shall indemnify and keep indemnified the other party from any liability in relation thereto.
19.That, subject to these orders, each party be declared to be solely entitled to the exclusion of the other of all other shares, bank accounts, furniture, personalty, property and chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the registered owner thereof and any entitlement to the benefit pursuant to the superannuation policy or superannuation fund shall be deemed to be in the possession of the person in whose name such entitlement stands.
20.That the parties intend, pursuant to section 81 of the Family Law Act 1975, that these orders shall finally determine the financial relationship between them and avoid any proceedings between them.
21.That the parties have liberty to restore the matter to the court list on seven (7) days notice to implement these orders.
22.The pursuant to section 106A Family Law Act 1975, if an order under this Act has directed a person to execute a deed an instrument and should either party refuses or neglects to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection then the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
The wife’s proposed order 22 does not appoint a person to execute documents pursuant to section 106A, but only provides that the Court may appoint such a person in certain circumstances, a matter already provided for by that section itself.
The husband sought the following orders:
1.That both parties shall forthwith do all things and sign all documents necessary to list for sale the property [B Street, Suburb C] being folio identifier […] (“the property”) by public auction with an agent to be agreed upon between the parties, failing agreement within a period of 14 days of the date of these orders as nominated by the Real Estate Institute of NSW or its successor body, at a reserve price as agreed between the parties, failing agreement, as recommended by the selling agent.
2.The solicitors acting on the sale shall be as agreed between the parties within 14 days of the date of these orders or failing such agreement as nominated by the Law Society of NSW.
3.In the event the property fails to sell at such auction, then it shall be immediately relisted for sale by private treaty for a period of 2 months with the same selling agents unless otherwise agreed in writing at a reserve price reduced by 15% or as otherwise agreed between the parties in writing, and if it fails to sell during this period, it shall be relisted for sale by auction at a reserve price reduced by 25% or as otherwise as agreed between the parties in writing.
4.In the event the property fails to sell in terms of the previous orders, then it shall immediately be relisted for sale by public auction on the same terms as above say that there shall be no reserve price and the property shall sell to the highest bidder.
5.That the proceeds from the sale of the property shall be distributed as follows:
a. in payment of the mortgage currently secured over the property;
b. in payment of any outstanding strata fees or levies;
c. in payment of the selling agent’s costs and commission;
d. in payment of the legal costs and disbursements from the sale;
e. in payment of any maintenance or preparation costs for the property incurred in terms of these orders;
f. to the husband 65% of the balance;
g. to the wife the remainder.
6.During the marketing of the property, the Wife shall maintain it in a neat and tidy condition and shall allow inspection is to take place at all reasonable times in the company of the selling agent and shall absent herself from the property during such inspections.
7.The parties shall jointly share any maintenance or preparation expenses agreed upon between them to be undertaken to the property prior to auction, and for this purpose the wife shall allow the husband access to the property upon being given 7 days written notice from him to inspect it.
8.The Wife shall manage all trades persons organised by the parties to attend the property to perform any basic repair work, including broken kitchen doors so that all items fully function as intended. This will include any repair person arranged by the husband and agreed upon by the parties.
9.The wife shall additionally allow the husband access to the property within 21 days of the completion date of any sale to remove his personal possessions and any other agreed-upon items, and during such access the wife shall send herself from the property.
10.The husband shall be declared as against the wife the sole beneficial owner of the pool table, antique clock, statues, wall items, and the old record player all previously owned by his grandmother, and the golf clubs, gym weights, garage tools, his CD, music, and book collection and sporting memorabilia.
11.The pursuant to s 90XT(1)(b) of the Family Law Act 1975 (the Act) the member spouse [Mr Wade] member […] (the “Member Spouse”), and [Super Fund 2] (ABN […]) as trustee of the [Super Fund 2] (or any successor fund) (the Trustee) do all acts and things, sign all documents and give all consents so that whenever a splittable payment becomes payable to the Member Spouse from his interest in the fund that the wife (the “Non-Member Spouse”) is entitled to an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001, using a percentage amount of 42% of the splittable payment and that there is a corresponding reduction in the entitlement of the Member Spouse had these orders not been made.
12.That for the purpose of order 11 the operative time is 4 business days after service of the order on the Trustee.
13.The parties shall otherwise be solely and beneficially entitled as against the other 20 property including bank accounts, investments, shares, motor vehicles, or interests in a superannuation fund currently standing in their name.
14.The wife shall pay the husband’s legal costs incurred herein as agreed or assessed.
THE EVIDENCE
The time of hearing the wife was 49 years of age and the husband 55 years of age. The wife is an allied health worker conducting her own business in Suburb J and the husband is a professional with the Employer K.
The parties met whilst both working for Employer L. The wife asserted the parties commenced cohabitation in 1998, the day of their first date, at the husband’s rental home at M Street, Suburb N, the wife having resided in a rental property at Suburb O up to that time.
The husband asserts that the parties commenced their cohabitation no earlier than 2000 when the wife “began staying occasionally overnight at my unit although I recall she still kept renting a housing commission unit at Suburb O (which she let it go sometime later).”[1]
[1] Husband’s affidavit, paragraph 11.
In his evidence in chief the husband seems to indicate that the parties did not commence cohabitation until their marriage in 2004. During his cross examination he conceded that “a couple of months” after the parties’ first date in 1998 they had a relationship of ‘boyfriend’ and ‘girlfriend’ and that it was “quite a few months” thereafter before the wife moved in and they commenced cohabitation. When the husband was asked “at what point did the wife reside with you full-time at M Street, Suburb N, was it 1999?” He responded to the effect that he thought that it was later, in 2000, and when it was put to him that it was fair to say that he could not pinpoint the date when the wife began to reside with him in Suburb N, he conceded that he was only guessing and could not give an exact date. When shortly thereafter, it was put to him that by 1999 the wife was residing with him in Suburb N he gave evidence that the wife resided with him in Suburb N between 2000 and 2002, when they commenced a temporary separation.
The wife gave evidence that the parties were separated for about a year from early 2003 until 2004. The husband’s evidence was that the separation had begun in 2002 and that they resumed their cohabitation when they married in 2004.
On the wife’s evidence, the parties cohabited from 1998 until 1 January 2012, with a period of about 12 months separation in 2003 to 2004, a cohabitation period of about 13 years. On the husband’s evidence, the parties cohabited for about two years from 2000 to 2002 and then again from 2004 until 1 January 2012 with a one-year separation between 2002 and 2003, a cohabitation of about 10 years.
The parties had the two children, X and Y, during their cohabitation.
The husband concedes in his evidence that the parties, though not cohabiting, on occasions were together overnight at his Suburb N rental home in about mid 1998 and commenced cohabitation at some time in 2000. The wife concedes that it was sometime after the parties commenced cohabitation that she gave up the lease on her Suburb O rental premises, but neither party could give even vague evidence as to when she gave up that lease.
The wife annexes to her trial affidavit certain documents that she asserts indicate that she was resident at the husband’s rental units in M Street and Suburb N in the late months of 1999 being:
(a)A Notice of Assessment 1999 showing that as her postal address;
(b)A Westpac bank account statement in her name dated 2000 showing that as her postal address; and
(c)A letter from the Australian Taxation Office dated 2001 and another dated 2002 showing that as her postal address.
When these documents were put to the husband in cross examination as asserted evidence that the wife was cohabitating with him at that address at those times he gave evidence that as he assisted the wife with her income tax returns, the appearance of his residential address on those documents could have been in consequence of that assistance rather than as evidence of cohabitation.
On review of the credit of the parties overall, and particularly in relation to the cross examination, I must find that the husband was the better witness. The wife was several times warned by me about persistently giving non-responsive answers to questions in cross examination, whereas the husband gave his evidence in a straightforward and responsive manner even when the answer tended against his interest.
Nevertheless, the evidence presented by the wife of her address being stated on taxation documents between 1999 and 2002 and on a Westpac bank statement for account in her name dated 2000, together with all of the evidence of the parties on the issue, lead me to find that the parties did commence cohabitation prior to the date of their marriage in 2004, and that such cohabitation commenced no later than about late 1999. I accept that the parties were separated for a period of one year at some time in the period from late 2002 to their marriage in 2004. Accordingly, I find that the period of cohabitation from 1999 until 1 January 2012, when they separated and continued residing under the same roof, and taking into account the one year separation, was 12 years.
The husband gives evidence that at the commencement of cohabitation he had assets to value of $397,000 being:
(a)Savings of $243,000 in an Bank P saving account, savings of $8,238 in an ANZ Access Account;
(b)A $28,000 inheritance;
(c)Shares in Company D and Company E to a value of $5,400;
(d)A Motor Vehicle 4 valued at $25,000;
(e)A Motor Vehicle 3 valued at $2,000;
(f)Furniture and contents in his rented apartment valued at $35,000; and
(g)Superannuation entitlements with Super Fund 2 valued at $50,421.
The husband dates these initial contributions from about the time of the parties’ marriage in 2004. I have found that the parties’ commenced cohabitation no later than 1999 and that the parties were separated for a period of one year prior to their marriage, and therefore some part of the husband’s asserted savings as at 2004 may reasonably be taken to have accumulated during the preceding three and a half years of cohabitation.
The husband asserts that at cohabitation the wife “had no assets of any consequence…but some small savings.” The husband was not cross examined about his evidence as to his initial contributions and the wife gives no contradictory evidence. The wife gives no evidence in relation to contributing any assets of value at the commencement of cohabitation.
At some time after the parties met whilst both working for Employer L, the wife changed to full-time employment as an office worker for Employer Q and continued in that role up until ceasing work for the birth of their first child, X, shortly prior to 2005. While still working full-time she commenced part-time study for an allied health qualification and continued those studies after she gave up work. In 2006 she received her qualifications in allied health and in 2009 gained a Diploma in Allied Health with a high distinction, with a view to conducting her own business on a part-time basis compatible with undertaking the principal homemaker and parenting role in the family was the husband continued in his employment.
In 2006, at the end of the wife’s maternity leave, she formally resigned from employment with Employer Q and continued with her studies. In late 2006 the wife took up employment as an allied health worker at Employer R in Suburb S, working either Saturday or Sunday from commencement in late 2006 until January 2012 when she left to set up her own business, which she commenced from 2012.
The husband was in full-time employment throughout the whole of the parties’ cohabitation continuing post separation and up to 30 January 2021 when his then current contract of employment ceased and he became unemployed until gaining his current position as a professional with the Employer K, though the course of his employment through this period of time is not in evidence.
It is accepted by both parties in evidence that each contributed the whole of their income from employment and, on the wife’s part, from conduct of a business towards the acquisition, conservation and improvement of the property of the parties and each of them and to the welfare of the family unit through payment of living expenses.
In paragraph 122 of his affidavit, the husband gives detail of his taxable income for the years from 2004 to 2012. In paragraph 284 the wife gives evidence of the husband’s taxable income for the years ended 30 June 2016 through to 2021 as set out in correspondence from the Child Support Agency and she also gives evidence of her taxable income as set out in her Notices of Assessment from the Australian Taxation Office for the years ended 30 June 2018 to 2021. Patently, the husband’s income throughout the whole period of cohabitation was significantly in excess of the wife’s income.
The parties at no time had any joint bank accounts other than a redraw facility on the joint loan account relating to purchase of the matrimonial home. The wife gives evidence that at some time the husband began paying a $500 per week into her account to pay for the family’s food, clothes, groceries, medical, private health cover, car, and outings for the children and that such amount was not increased by the husband throughout the cohabitation. The husband gives evidence that from April 2006, he began paying $2,000 per month to the wife “for housekeeping” and that such money was “on top of all the other payments [that] are made towards the rent and groceries.”
In 2007, the parties purchased the matrimonial home at B Street, Suburb C NSW for $865,000. The sum of $34,021 was paid for stamp duty and a sum of about $6,000.04 was paid towards legal costs of the purchase and mortgage set up costs, making the total cost of purchase of $905,021. The husband gives evidence that the purchase costs were funded by:
(a)$407,021 from his savings at the time of purchase;
(b)$36,000 from the wife’s savings at the time of purchase;
(c)$7,000 as received from the Government as a First Home Owners Grant; and
(d)$455,000 in joint borrowing on the loan account with ANZ Bank.
Certainly, on either version of the commencement of the parties’ cohabitation, some of the husband’s savings were accumulated between commencement of cohabitation when he asserted he had total savings and inheritance in a sum of $279,238 and the purchase of the matrimonial home in 2007 when he had $407,021 in savings, a difference of $127,783. There is no figure in any of the evidence as to the amount of savings held by the wife at the commencement of cohabitation – the husband asserts that the wife did have “some small savings” at that time, but I cannot calculate what part of the $36,000 savings the wife applied to the purchase costs was pre-cohabitation savings and what part was post cohabitation savings.
The parties separated on 1 January 2012 in that they agree in their evidence that by no later than that date they had both decided that the marital relationship had broken down irretrievably, and they continued residing together under the same roof at the matrimonial home at B Street, Suburb C until the husband left the property on 16 August 2016.
Sometime around 26 November 2010, the wife made an application to the Child Support Agency under the applicable legislation for an assessment of child support and for the husband to pay that assessed child support to the wife for the support of X and Y. That assessment was paid and, it seems on the evidence, the husband began paying child support to the wife. Neither party asserts that the parties were separated at that time. During the wife’s cross examination, correspondence from the Child Support Agency of 26 November 2010 was put to her. The wife agreed that she applied for the assessment and payment of child support at about the date of the letter and she confirmed that the parties were not separated at that time, and asserted that she applied for child support from the husband even though they were not separated because the husband had said he would not give
youher any more money.The wife caused an application for divorce to be filed with the Court on 28 February 2019, a copy which became Exhibit R1. The wife acknowledged that the date of separation stated by her in the document was 1 January 2012 and that she asserted in the document that the parties lived together in the same home after separation from 1 January 2012 until 1 August 2016. When the document was put to her and it was put that the assertions in the document were her assertions, she responded “I didn’t write it”, and sought to blame her solicitor, though in her responses at this point she prevaricated and persistently failed to answer the questions put by Counsel. The application for divorce is verified by an affidavit of the wife sworn 28 February 2019 asserting that “the facts and circumstances set out in the application of which I have personal knowledge are true.”
The wife was also cross examined about a statement she gave to NSW Police in 2015 in paragraph 3 of which she asserted to police that the parties had been separated since 2012 and were sleeping in separate bedrooms under the same roof. In cross examination the wife confirmed that her statement to police was the truth.
I detail that evidence because during cross examination of the husband, objection was made by Counsel for the husband to a line of questioning around paragraphs 139 to 142 of the wife’s affidavit dealing with events occurring during a holiday on the Anzac Day long weekend in 2013 in Queensland, attended by both the husband and the wife and both of the children, where those events related to the personal life of the husband. Counsel for the husband objected on the basis of lack of relevance to the issues before the Court. In dealing with that objection, Counsel for the wife indicated that it was the wife’s case that there was a resumption of cohabitation and a resumption of the parties’ marital relationship after 1 January 2012 and before 16 August 2016.
In her trial affidavit the wife says:
[127]I initiated separation in the form of living together under one roof in 2012.[2]
[138]After we separated in January 2012, we lived together under the same roof and attempted to put our unresolved differences aside and reconcile.[3]
[150]During our separation and up until [Mr Wade] left the marital home in August 2016, I continued to be the primary carer of the Children.[4]
[2] Wife’s affidavit, paragraph 127.
[3] Wife’s affidavit, paragraph 138.
[4] Wife’s affidavit, paragraph 150.
The parties and the children did go on holidays together as a family on occasions after 1 January 2012, in particular over
ends oflong weekend in 2013 is referred to above when the husband admitted during cross examination he and the wife shared a bed, but denied there was any sexual activity between them and also in 2014 in a two-bedroom apartment at T Resort in Queensland when the husband and wife again shared a bed and the husband denied that there is any sexual activity between them. The evidence of the wife taken at its height does not amount to a resumption of the marital relationship between the parties at any time between 1 January 2012 and 16 August 2016 when they ceased to reside under the same roof.
During cross examination it was put to the husband, “And it was the case, then, that in January 2012, Ms Wade initiated a separation from you under the one roof?” The husband replied, “Yes”. The husband was asked, “Now, it’s the case that in 2013, you decided to reconcile with each other. Is that correct?” The husband replied, “No”. He was asked, “And in between 2013 and 2014 when you went on the second holiday that I’m referring to, you had sex with each other on a number of occasions at your home?” The husband replied, “No”.
During the exchange on the objection it was submitted by Counsel for the mother that the wife asserts that the duration of the cohabiting relationship of the parties was from “around 1998 through to 2016”. Counsel did, most properly, acknowledge the substantial contradictions in the wife’s evidence to that submission. As Counsel for the wife then submitted to the Court in relation to a finding on duration of the cohabiting relationship, “[The Court must] apply the law to the facts and come up with the answer.”
Applying the law to the facts, the answer is a clear finding that the parties separated after that date and remained separated under the one roof until 16 August 2016.
The husband’s superannuation entitlements with Super Fund 2 as at 30 June 2004 were $50,421 and by 30 June 2012 had increased to $138,978.
At some time following their separation the wife withdrew $50,000 from the parties’ mortgage offset account and purchased the Motor Vehicle 2 retained by her at the time of hearing. The husband thereupon withdrew the balance of $35,000 to exhaust the mortgage offset account and asserts that he applied those monies towards the periodic payments required on the loan account secured on the B Street, Suburb C property and set up costs for his new accommodation on leaving the B Street, Suburb C property.
Prior to separation, the husband opened a further superannuation account with Super Fund 6 (now Super Fund 5) in 2011 and in 2013 he opened an account with Super Fund 4. The husband gives evidence in paragraph 130 of his affidavit that following his departure from the B Street, Suburb C property in 2016 he paid a sum of approximately $60,000 toward school fees, books and uniforms for the children and paid approximately $13,200 toward “energy charges” for the wife and the children. During cross examination, the wife agreed that the husband had paid for these costs up to the end of January 2021, but could not confirm or state the amount of those payments.
The husband gives evidence that from January 2012 when the parties separated until 30 January 2021 when he became unemployed on the end of a contract of employment, he paid all of the outgoings relating to the B Street, Suburb C property including payment as required on the loan account secured by mortgage on the B Street, Suburb C property and the strata levies.
The wife’s evidence is that during the period of separation under one roof she continued to undertake the homemaker role in relation to household duties of cooking meals, washing clothing, shopping and cleaning the house, and continued to be primarily responsible for the parenting of the children.
In 2012 the wife commenced operating her own business under the business name “Company F” and continued operating that business up to the hearing.
The wife gives evidence that the husband worked long hours at the office, arriving home between 6:30PM and 7:00PM on weekdays and that he also “worked long hours into the night, working on his computer, long after Mr Wade returned home in the evenings.” She says that her work hours both when employed as an allied health worker and when conducting her own business from 2012 were patterned around the children’s needs and that she was the primary carer for the children.
The parties’ son Y was early diagnosed with chronic asthma and ADHD and his special needs required, and continues to require, closer supervision and care than a child without those special needs. The wife gives evidence that he has always required “one-on-one homework guidance, supervision, and support to stay on task and complete his homework, every day after school.” She says that “Y struggles with emotional regulation and impulse control.” The wife asserts that she is required to spend a lot of one-on-one time with Y to provide him with assistance and guidance around time management and impulse control. During his cross examination the husband agreed with the wife’s evidence in this regard, though he said that when Y is compliant with his medication the effects of his condition improve.
Y is due to sit his Higher School Certificate examinations in 2028 and the wife asserts that it is only after that time that she will be able to retrain by studying health care part-time at TAFE.
The husband asserts that since he left the B Street, Suburb C property in 2016, he has had the children in his care for either three or four nights per week and for every weekend whilst the wife worked, up until the interim orders of May 2021 when, pursuant to those orders, he commenced having children in his care each alternate weekend from end of school on Friday until start of school on Monday and each week from the end of school on Wednesday until the start of school on Thursday and for half of each school holiday period. During cross examination the wife agreed that the children were in the father’s care for three nights each week in the period from August 2016 when husband left the B Street, Suburb C property until the interim orders were made in May 2021, “while I worked three nights per week” and she did “not recall” any occasions where the children were in the husband’s care for four nights per week.
The wife suffers from anxiety consequent upon matters occurring in her earlier life and at the time of hearing she was taking a prescription anti-anxiety medication, Cipramil. These proceedings themselves caused her anxiety.
The husband became unemployed at the expiration of a contract of employment in 2021 and from that time, the wife paid from her income or her resources all payments made on the loan account secured by mortgage on the B Street, Suburb C property whilst the husband paid the strata levies.
The wife asserts an income of $924.31 per week (misstated as $907 at item 2A in her Financial Statement), consisting of her earnings from the conduct of the business, a carer’s payment and carer’s allowance and Family Tax Benefit from Centrelink and $22.31 per week child support paid by the husband. She asserts fixed weekly expenditure in Part G of $1,057.04 (misstated at item 33 as $1,218.92) and other weekly expenditure of $1,966 in Part N. There is a question as to whether any of the expenses in Part N are included in the $500 per week credit card payment under the fixed weekly expenses at item 30.
The husband’s circumstances changed between completion of his Financial Statement on 13 January 2022 and the hearing and that is reflected in his affidavit of 11 April 2022 where he gives evidence that he had obtained a one year employment contract a professional with the Employer K’s office and an annual salary inclusive of superannuation of $151,609, that contract running from 2022 to 2023. His fixed weekly expenses and “all other expenditure” in Part G total $2,515, and once again it is a question not entered in the evidence as to whether any of the $576 of “all other expenditure” is found in the credit card payment of $895 per week, both forming part of the total of $2,515.
The husband is by training a finance professional.
SUBMISSIONS
Some brief submissions were necessary in relation to the discrepancy between the parties as to values of certain items on the Balance Sheet at the end of the evidence.
Ms Bateman's ultimate submission in relation to the Motor Vehicle 3 was that it should be shown with nil value on the Balance Sheet, there being no evidence as to value, but that in final orders it should be given to the wife so that she can attempt to sell it for whatever price she can achieve. The husband's evidence was that the vehicle was in such a deteriorated condition that it had no value.
In relation to the asserted addback of the Husband's paid legal fees, Mr Othen submitted that as the husband's legal fees had been paid entirely from income generated and received by him post-separation, and not from capital, as evidenced by the Costs Notice filed pursuant to the Rules, and should not be added back to the property.
Ms Bateman confirmed in her submissions that despite the discussions between the bench and bar table during the hearing, the wife still sought orders based on her retention of the B Street, Suburb C property until 2029 with the property then going to sale and the net proceeds being divided 55% to the wife and 45% to the husband, and with an immediate superannuation splitting order in her favour out of the husband's Super Account with a Base Amount of $300,000.
Ms Bateman submitted that the parties' contributions should be considered on a continuous basis from the commencement of cohabitation, which the wife had asserted was 1998, until the husband left the B Street, Suburb C property in August 2016, submitting that whether or not the parties did separate on 1 January 2012, they continued to reside under the one roof in the manner of a married couple, whether or not the marital relationship continued to what the husband asserts was the separated under the one roof period. Ms Bateman submitted that "during the period of the cohabitation that is really a 50/50 contribution", and that, "[T]here needs to be an adjustment or a recognition of the initial contribution of the husband. It's close to $400,000."
Counsel for the mother emphasised the difference in the parties' financial positions, as to income and earning capacity, and submitted that there should be a section 75(2) adjustment in favour of the wife for the relevant factors, "the ongoing care of the children, the disparity in income, earning capacity potential, and also its on both parties' case that she does have some fragility mentally."
Ms Bateman referred to and relied upon the submissions contained in the wife's Outline of Case document prepared by her solicitor.
In relation to the wife's application that she remain in the B Street, Suburb C property until 2029 and the sale then take place, Mr Othen submitted that though it is true to say that a court could in some extreme circumstances make such an order, "this case doesn't come close to establishing a reason for it." He submitted that the wife's argument that she could not rehouse herself and the children if there were an immediate sale of the house was not an argument upon which the Court would exercise a discretion to delay the sale of the principal asset between the parties and keep the husband from his share of the property for over six years after final orders.
Mr Othen submitted that an appropriate superannuation splitting order in favour of the wife, on all of the evidence, would be an amount equivalent to 42% of the husband's superannuation, which would give a base amount of $170,000.
The father's counsel submitted that the evidence clearly established that the parties separated on 1 January 2012 and thereafter lived separately and apart under the same roof until August 2016 when the husband left, though conceding that the parties' contributions financially and to the welfare of the family unit during that period of separation under the same the roof were not at all dissimilar from the contributions during cohabitation once the children had been born. He submitted that the father's initial contribution must be given significant weight on the basis that "the unchallenged evidence is that at commencement of the marriage he had assets worth around $397,000, and by 2007, when the parties acquired their home [the B Street, Suburb C property], a few years after the marriage, those savings that he had at the beginning had grown such that he was able to contribute $407,000 to the acquisition of the main asset available today". Of course, as I have found, the parties cohabited prior to the time of their actual marriage, and whilst the husband's evidence as to his accumulated savings and so forth as at the time of their marriage in 2004 is precise, there is no precise evidence, or even barely any evidence as to his savings and other assets when the parties commenced cohabitation.
Mr Othen submitted that in relation to the pool of available assets, treating superannuation as in a separate pool, the Court should find that the parties' contributions, viewed on the holistic basis, would favour the husband as to 65% and the wife is to 35%.
In relation to any appropriate adjustment for future needs of the parties under section 75(2), Mr Othen conceded in his submissions that there was a significant disparity in the parties' income and earning capacity, but that there was a six year age difference between the parties that would see the husband ceasing income earning activity earlier than the wife. Mr Othen submitted that the wife was by no means working to her income generating capacity. He submitted that a 10% adjustment in favour of the wife would be "above an adjustment that your Honour would consider just and equitable."
THE LAW
The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[5] Relevant in this case, section 79(1) vests the Court with power to alter the interests of the parties in property,[6] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[7]
[5] Family Law Act 1975 (Cth) s 79.
[6] Family Law Act 1975 (Cth) s 79(1)(a).
[7] Family Law Act 1975 (Cth) s 79(1)(d).
However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[8] The legislative process required by section 79 was considered by the High Court in Stanford & Stanford (2012) 247 CLR 108.[9]
[8] Family Law Act 1975 (Cth) s 79(2).
[9] Stanford & Stanford (2012) 247 CLR 108.
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
(a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
(b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
(c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[10]
[10] Stanford & Stanford (2012) 247 CLR 108; see, especially, [37].
That the interests as described above are ‘existing’ is of importance, as the Court noted, because the text of the section gives reference to ‘altering’ the interests.[11]
[11] Stanford & Stanford (2012) 247 CLR 108, [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[12]
[12] Stanford & Stanford (2012) 247 CLR 108, [42].
I will examine the matrimonial asset pool and the existing interests of the parties, before determining whether it is just and equitable to make a property adjustment order.
If the Court determines that it is just and equitable to make an order under section 79, the Court must then consider what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395.[13]
[13] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395, [39].
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a court when determining a property application:
(a)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[14]
(b)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b), and (c), and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties”; [15]
(c)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[16]
(d)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[17]
[14] Hickey [2003] FamCA 395, [39].
[15] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c):
[16] Hickey [2003] FamCA 395, [39].
[17] Hickey [2003] FamCA 395, [39].
The Full Court pointed out in Hickey that pursuant to the wording of section 79, there can only be one property settlement order at any one time, and that the one property settlement order is final, subject only to anything that may be properly done pursuant to section 79A of the Act.[18]
[18] Hickey [2003] FamCA 395, [47].
The Full Court held in Fontana & Fontana [2018] FamCAFC 63:[19]
… Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513).[20]
[19] Fontana & Fontana [2018] FamCAFC 63.
[20] Fontana & Fontana [2018] FamCAFC 63, [27].
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship, during their relationship, and following separation.[21]
[21] See, eg, Jabour & Jabour [2019] FamCAFC 78.
The approach to determining the appropriate percentage of the net value of property in relation to the contributions of the parties, at step two of the four-step process, requires an assessment of contributions by, or on behalf of, each of the parties in a holistic manner, rather than attaching specific contributions to a specific item of property and making a determination upon that basis. To do the latter would be to disregard the whole of the contributions made during the whole of the relevant period of the relationship by or on behalf of each of the parties.
As the Full Court said in Dickons & Dickons [2012] FamCAFC 154[22] at paragraphs 14 to 16:
[14]As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[15]The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “...directly or indirectly...” “...to the acquisition, conservation or improvement of any of the property ...” and goes on to also refer to the financial contribution made “...otherwise in relation to any of that last-mentioned property...” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
[16]While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “...acquisition, conservation or improvement of any of the property...” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
... revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings ...[23]
[22] Dickons & Dickons [2012] FamCAFC 154.
[23] Dickons & Dickons [2012] FamCAFC 154, [14]-[16].
The Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.[24] The principle was expressed succinctly by the Full Court in the joint judgment of Bryant CJ and Ainslie-Wallace J in Fields & Smith [2015] FamCAFC 57 at paragraph 168:
...the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial, and the analysis requires the Court to weight all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of Hearing, including the post-separation period.[25]
[24] In the Marriage of Harris (1991) 104 FLR 458, 464.
[25] Fields & Smith [2015] FamCAFC 57, [168].
The Full Court has been repeatedly clear that the approach to property settlement under section 79 of the Act is not an accounting exercise. Here, I note the comments of the Full Court in Grier & Malphas (2017) 55 Fam LR 107 at paragraph 129, where Murphy and Kent JJ said:
As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. Nowhere error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and section 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.[26]
[26] Grier & Malphas (2017) 55 Fam LR 107, [129].
THE PROPERTY OF THE PARTIES TO THE MARRIAGE OR EITHER OF THEM
Before making a finding as to whether it is just and equitable to make an order under section 79 of the Act altering the interests of the parties in the property, the Court must identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. In doing so the Court must remain conscious that:
[39]…Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoying common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any to persons who are not spouses” [Hepworth v Hepworth (1963) 110 CLR 309]. The question presented by s 79 is whether those rights and interests should be altered.[27]
[27] Stanford & Stanford (2012) 247 CLR 108, [39].
Accordingly, before approaching the finding in relation to just and equitable, I will make relevant findings as to what constitutes "the property" as section 79 states. “The property” is sometimes referred to as the matrimonial property pool.
A Joint Balance Sheet is in evidence as Exhibit C1, and by the end of the hearing it reflected agreement between the parties as to the composition of the property of the parties’ or either of them and also as to values except for one item, a Motor Vehicle 3 owned by the husband and stored at his mother’s home. The Balance Sheet also reflected asserted addbacks, both in relation to legal fees paid by the wife, one for $7,907.25 and the other for $53,965. There is no evidence as to the source of payment of these legal fees, no evidence to indicate that they were paid from any capital sum or asset held by the parties jointly or by the wife pre-or post-separation. In the husband’s column on the Balance Sheet beside each such addback item is the word “exclude”. I will not include the wife’s paid legal fees in the identification of the property, just as for the same reason I would not take into account any liability incurred for the purpose of paying legal fees.
There is no valuation by an appropriate expert of the Motor Vehicle 3. The wife asserts that it has a value of $30,000. The husband asserts that it has no value. The husband was cross examined extensively about the vehicle, as was the wife. It seems the vehicle is parked, unregistered and in a seriously decayed state at the husband’s mother’s home and he asserts in his evidence, and I accept his evidence, that the presence of the vehicle there gives comfort to his mother as it makes it seem to a stranger that there is someone at the home.
Exhibit R4 is a collection of ten colour pictures identified by the husband in his evidence in chief to be the subject Motor Vehicle 3. The wife in her cross examination was extremely reluctant to acknowledge that the photos depicted the vehicle, conceding that the vehicle in the photos was the same colour as the subject vehicle. The wife said she had been sent the photos prior to the trial and that she had at no time prior to the hearing asserted that it was not the subject vehicle, but asserted that the vehicle in the photos was “not the car I remember”. When the wife was asked if she meant that the vehicle in the photos was in “worse condition” than the vehicle she remembered, she responded, “very bad condition”.
The husband did not include the vehicle in his Financial Statement, but in cross examination he did not deny ownership of the vehicle and asserted that it had no value.
I consider carefully all of the evidence relating to the Motor Vehicle 3 and accept the husband’s evidence that the vehicle is in an extremely decayed and rusted condition. I cannot ascertain a value for the vehicle. The wife’s assertion as to the value is not founded on any evidentiary basis and I will not consider the Motor Vehicle 3 in identifying the property.
I find that property of the parties, jointly or individually, is as follows, the “Ownership” column signifying legal and beneficial ownership:
Item
Ownership
Description
Value
Assets
1
Joint
B Street, Suburb C NSW
$2,000,000
2
Husband
ANZ Bank account ending #...56
$5,436
3
Husband
Company D shares
$2,535
4
Husband
Company E shares
$2,308
5
Husband
2013 Motor Vehicle 1
$15,000
6
Husband
Household contents
$5,000
7
Wife
Commonwealth Bank account ending #...68
$54
8
Wife
Motor Vehicle 2
$21,900
9
Wife
Company F
$1,500
10
Wife
Household contents
$5,000
Total assets
$2,058,733
Liabilities
11
Joint
ANZ Bank loan account secured on
B Street, Suburb C property
$260,981
12
Husband
Company U – personal car loan
$2,821
13
Husband
ANZ Visa card
$823
14
Wife
Centrelink debt (advance payment error)
$297
15
Wife
Bank V credit card
$1,500
16
Wife
Mr W – personal loan
$2,500
Total liabilities
$268,922
Superannuation
17
Husband
Super Fund 5 – accumulation fund
$48,122
18
Husband
Super Fund 4 – accumulation fund
$159,191
19
Husband
Super Fund 1 –accumulation fund
$394,612
20
Wife
Super Fund 3 – accumulation fund
70,913
Total Superannuation
$672,838
The net figure for the property with the assets and superannuation in one pool is $2,462,649.
The net figure for the property without superannuation is $1,789,811.
IS IT JUST AND EQUITABLE IN ALL THE CIRCUMSTANCES TO MAKE AN ORDER UNDER SECTION 79 ALTERING THE INTERESTS OF THE PARTIES IN THE PROPERTY?
To paraphrase the High Court from paragraph 42 of the judgement in Stanford, as a result of a choice made by one or both of the parties, they are no longer living in a marital relationship and there is not, and will not hereafter, be the common use of property by them. Further, the express and implicit assumptions that underpinned their property arrangements prior to separation have been brought to an end by the severance of the mutuality of the marital relationship. The completion of the final hearing establishes that no adjustment of the marital property interests can be affected consensually by the parties.
I therefore find that it is just and equitable for the Court to make a property settlement order. The Court must apply section 79(4) of the Act to determine what that should be. There is an imperative for an order altering the interests of the parties in the property as they are joint owners as tenants-in-common of the principal asset being the B Street, Suburb C property and the husband holds 89.5% of the parties’ total superannuation entitlements.
ASSESSMENT OF CONTRIBUTIONS.
The husband clearly made the greater initial contribution at the commencement of the parties’ cohabitation, though as I have found that the parties commenced cohabitation no later than 1999, his initial contribution was not as great as that stated by him in paragraph 115 of his trial affidavit as any evidence to confirm the value stated there
any evidence to confirmin annexure is “M” to “P” related to a period from 2003 to 2004. On the evidence at hearing it is impossible to ascertain the precise initial contribution made by the husband and it is very likely that the contribution values as stated by the husband in paragraph 115 were lower in 1999, but there is sufficient evidence for the finding that the husband made the greater initial contribution. As stated above, the wife gave no evidence in relation to contributing any assets of value at the commencement of cohabitation.Both parties are in full-time employment until the wife ceased full-time work for the birth of the parties’ first child, X. The husband continued in full-time employment throughout the whole period of cohabitation up to 1 January 2012, while the wife studied through to 2009 to gain her qualifications in allied health and took up part-time employment as an allied health worker from late 2006 until January 2012. I have found, as was accepted by the parties in evidence, that each contributed the whole of their income from employment during cohabitation to the acquisition, conservation and improvement of the property of the parties’ and each of them and the welfare of the family unit through payment of living expenses.
I find on the evidence that the wife was primarily responsible as between the parties for the day-to-day care of X and Y, and in particular care of Y in relation to his special needs. I also find that the wife was primarily responsible as between the parties for the homemaker role within the family unit during cohabitation for the period from 2005 until January 2012, with the parties being equally responsible from commencement of cohabitation until late 2005.
During the period from separation on 1 January 2012 until the husband vacated the matrimonial home on 16 August 2016, the parties continued to reside together under the one roof with the children, X and Y. From 2012 the wife was conducting her own business very much on a part-time basis and I find that for that period from January 2012 to August 2016, the wife continued to be primarily responsible for the day-to-day care of the children and attention to Y’s special needs and was primarily responsible for the homemaker role, including for the husband. The husband continued to be the principal financial contributor and support for the family unit including for the wife through that period of time.
Following the husband leaving the matrimonial home in August 2016, the wife continued to be primarily responsible for the day-to-day care of the children and attention to Y’s special needs, though the husband was certainly a significant participant as the children were in his care from between three and four nights per week and for about half of the school holidays. The husband continued to be a financial support for the family unit until January 2021, not only through his payment of child support as assessed (those payments having commenced in 2010 prior to separation), but also through his payment of the required payments on the loan account secured by mortgage on the B Street, Suburb C property until he became unemployed in early 2021.
From the making of interim orders in May 2021 the husband had care of the children each alternate weekend from Friday after school until Monday start of school during school term and each Wednesday night during school term, and for half the school holiday period. The mother has been the sole carer for the children the remainder of the time.
In assessing the contributions of each of the parties from commencement of cohabitation until the hearing on an holistic basis, I find that:
(a)The husband made the significant initial contribution;
(b)The contributions of the parties during cohabitation were equal;
(c)The contributions of the parties during their period of separation under the same roof were equal;
(d)The contributions of the parties from August 2016 until January 2021 were equal; and
(e)The wife made the greater contribution from January 2021 until the hearing.
The findings that I have made in relation to the parties’ contributions relate equally to the pool of available assets as affected by liabilities and to the pool of the parties’ superannuation entitlements.
Accordingly, I find that contributions favour the husband slightly, as to 52% by the husband and 48% by the wife.
Should there be any adjustment between the parties in consequence of matters referred to in section 79(4)(d) to (g) of the Act?
At hearing the wife was 49 years of age and the husband 55 years of age. The husband is six years and a few months older than the wife, but both parties have a significant span of years remaining for engaging in income earning employment or business.
The husband has no health problems that would affect his ability to continue to engage in appropriate gainful employment, and he does so. The wife has a health issue in relation to anxiety, for which she is medicated, but there is no evidence that the wife’s health issue affects her ability to engage in appropriate income earning activity and she does so through the continued operation of her business, Company F.
Both parties have continuing physical and mental capacity to engage in appropriate gainful employment.
There is significant disparity in the income of the parties. The husband’s newly obtained employment at the time of hearing with the Employer K provided to him a salary of $151,609 per annum plus employer’s contribution to superannuation and annual leave loading. That employment was for a contract term of one year and was referred to as “temporary employment” in the letter to the husband in 2022 from the Employer K offering the employment and in the formal Offer of Employment and Confirmation of Acceptance. When coupled with the husband’s evidence of his previous yearly taxable incomes prior to January 2021, this indicates that the husband is capable of obtaining employment at that level and maintaining such employment.
The wife’s income is limited to her earnings from her conduct of Company F, Centrelink payments and child support from the husband. The wife indicated in her evidence an ambition to study health care and so as to obtain regular stable employment in the future, but indicated that she cannot commence study toward that career path until Y has completed his Higher School Certificate in 2029. This consideration favours adjustment in favour of the wife.
Whilst a comparison of the earning capacities of the parties is not a matter mentioned specifically in section 75(2) it is nevertheless a matter that can be taken into account by the Court under section 75(2)(o). On the evidence the husband will maintain a far superior earning capacity to that of the wife throughout the rest of his employment history. This consideration also favours adjustment in favour of the wife.
Neither party has a financial resource that will impact upon their financial situation.
Pursuant to the final parenting orders made by consent on 23 May 2022, the children live with the mother and spend time with their father during school term each alternate weekend from after school on Friday until start of school on Monday and each week on Wednesday night and for one half of the school holidays. The parents share care of the children on an equal basis for special occasions, being the Christmas period, Easter, family birthdays, Mothers Day and Father’s Day. The wife therefore has the greater responsibility for the day-to-day care and control of the children of the marriage and is responsible for their financial support beyond the amount of child support paid by the father under the legislative assessment from time to time.
At the time of hearing there was 18 months until X reached 18 years of age and six years until Y reached 18 years of age. The mother will continue her role as parent during the greater part of the time and the father will continue his role as parent during the time the children spend with him pursuant to the orders. The disparity in the amount of care each parent will provide to the children under the parenting arrangements favours an adjustment in favour of the wife.
The commitments of each of the parties necessary to enable them to support themselves and the children of the marriage are set out in their respective Financial Statements and I consider that evidence to be in part and parcel with the evidence relating to the parties’ comparative incomes and earning capacities in favour of an adjustment in favour of the wife.
Neither of the parties is responsible for the support of any other person other than the children of the marriage.
In consequence of his employment since 2022 the husband is not eligible for any pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country or, on the evidence, pursuant to any superannuation fund or scheme.
At the time of hearing the wife was entitled to receive Family Tax Benefit and a Carer’s Payment and Carers Allowance from the Commonwealth of Australia. On the evidence, the wife was not at the time of hearing entitled to receive any other pension, allowance or benefit under the law of the Commonwealth, of a State or Territory or of any other country or in relation to any superannuation fund or scheme. The rate of the pension, allowance or benefit received by the wife is as set out in her Financial Statement at the time of hearing.
In consequence of the parties’ separation and necessity to maintain separate households I find that each has a standard of living that is in all the circumstances reasonable.
The orders proposed by each of the parties for final alteration of the property would have no effect on the ability of any of the creditors of the parties to recover the creditor’s debt.
The wife contributed to the current and ongoing income earning capacity and financial resources of the husband by undertaking primary responsibility for the parenting role and the homemaker role from 2005 with the birth of X up to the end of the parties separation under one roof, and by maintaining her primary responsibility for the parenting role after August 2016. This thereby freed the husband to maintain his full-time employment from 2005 through to January 2021, which he recommenced in 2022, thereby enabling him to maintain and improve his value in the employment marketplace in the area in which he works. Whilst the wife’s cessation of full-time work in about late 2005 had a detrimental effect on her earning capacity that continues to the present time.
I also find that the husband made contributions to the earning capacity of the wife following her decision to leave full-time employment for the parenting and homemaker role, in that he was the main financial support for the family unit during the period of time from 2006 to 2009 during which the wife gained her qualifications in allied health care that enabled her to earn income in the period 2006 to the time of hearing. However, on a comparison of the contribution by each party to the other party’s earning capacity, I find that the consideration favours adjustment in favour of the wife.
The parties’ cohabiting relationship was from no later than 1999 until 1 January 2012, with their separation under one roof being from the latter date until 16 August 2016 when the husband left the home. The effect of the duration of the parties’ marital relationship on the earning capacity of each of the parties has already been considered above.
Neither party is cohabiting with any other person.
The husband is paying child support in accordance with an assessment under the applicable legislation. During the period of the husband’s unemployment, the wife paid child support as assessed to the husband from February 2021 until March 2022.
I find that the orders proposed by the parties will have no effect upon the earning capacity of either of the parties.
I find that after considering the relevant matters set out in section 75(2) to which the Court is directed by section 79(4)(e), there should be an adjustment in favour of the wife and that such adjustment should be 12% in relation to the pool of available assets as affected by the liabilities and that such adjustment should be 6% in relation to the pool of superannuation entitlements on the basis that the husband is likely to cease full-time employment up to 6 years earlier than the wife and a number of the factors under section 75(2) that favour adjustment in favour of the wife will cease to be relevant when Y reaches 18 years of age.
12% of the available assets pool equates to $214,777 and 6% of the superannuation pool equates to $40,370.
CONCLUSION
The Husband seeks final property orders that provide for an immediate sale of the B Street, Suburb C property. The wife seeks final property orders that enable her to have exclusive occupation as between the parties of the B Street, Suburb C property until 1 February 2029 with the wife being solely responsible as between the parties for payment of the loan account secured by mortgage on the B Street, Suburb C property during that time, and then the sale of the property commencing 15 January 2029.
Section 81 of the Act provides that in proceedings under Part VIII relating to property settlement, the Court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. The words of the section do not dictate that the Court shall make such orders as will finally determine the financial relationships between the parties to the marriage upon the making of those orders, however the section has been interpreted throughout the history of the Act as requiring, “as far as practicable”, a “finality” to or “clean break” of the parties financial relationship, [28] though it is not an absolute requirement, as the inclusion of the words “as far as practicable” make plain. This was pointed out by the Full Court in Marriage of Crapp (No 2) (1979) 5 Fam LR 47; FLC 90 – 615, though in that case the Full Court also said:
Nevertheless it is true to say that it is unsatisfactory in the general context of the philosophy of the Family Law Act for a really significant issue between parties who are divorced and have gone their separate ways to remain in suspended animation for a number of years.[29]
[28] See, MacKenzie & MacKenzie (1978) 4 Fam LR 374 at 382 per Strauss J; FLC 90 – 496 at 77, 581; Marriage of Whitford (1979) for Fam LR 754 at 761; FLC 90 – 612 at 78, 145 per Asche, Pawley and Strauss JJ; Tamaniego v Tamaniego [2010] FamCAFC 254 at [145] – [163] per O’Ryan J.
[29] Marriage of Crapp (No 2) (1979) 5 Fam LR 47; FLC 90 – 615.
I made it plain to Counsel for the wife early in the hearing that there was nothing to be found in the evidence in chief that pointed toward a retention by the wife of the B Street, Suburb C property until February 2029 being in any way of practical necessity, or that lifted the case out of the normal line of alteration of property cases where the “finality” or “clean break” principle should be the guide for the Court’s exercise of discretion, nor did any such evidence arise in the course of the final hearing.
No order was sought by the wife that she be given the opportunity to pay out any relevant sum to the husband and receive a transfer from him of the whole of his interest in the B Street, Suburb C property.
No evidence was presented in relation to the value of the specific items sought to be recovered by the husband from the position of the wife in final orders – “the pool table, antique clock, statues, wall items, and the old record player all previously owned by his grandmother, and the golf clubs, gym weights, garage tools, his CD, music, and book collection and sporting memorabilia”.
I will make that order as sought by the husband, noting that it was not opposed by the wife, but even if it had been opposed, I would have made the order as an appropriate order transferring possession of items owned in law and in equity by the husband from the wife to the husband.
Other than the in relation to the B Street, Suburb C property and the separate pool relating to the superannuation entitlements, it is common between the parties that the husband will retain his ANZ Bank account ending #...56, his Company D shares and Company E shares, the 2013 Motor Vehicle 1 registration … and his household contents, and remain solely liable as between himself and the wife for his car loan debt to Company U and his debit balance on his ANZ Visa card.
Similarly, it is common between the parties that the wife will retain her Commonwealth Bank account ending #...68, the Motor Vehicle 2 , her sole trader business Company F and her household contents, and remain solely liable as between herself and husband for her Centrelink debt, the debit balance on her Bank V credit card and her personal loan debt to Mr W.
Without including any part of the B Street, Suburb C property or superannuation entitlements, the property retained by the husband minus his retained liabilities is valued at $26,635 in value and the property retained by the wife minus her retained liabilities is valued at $24,157. The B Street, Suburb C property at hearing had an agreed value of $2,000,000 and the loan account secured by mortgage on the B Street, Suburb C property to ANZ bank had an agreed debit balance of $260,981, giving in equity in the B Street, Suburb C property of $1,739,019.
On a division between the parties of 60% to the wife and 40% to the husband of the available asset pool after deduction of liabilities, the wife would receive $1,073,886 and husband would receive $715,925. If the wife were to retain the B Street, Suburb C property, an order would be required that she pay to the husband $689,290, and with a necessity to also refinance the loan account secured by mortgage on the B Street, Suburb C property she would need finance of $950,221. There is no evidence of the wife having the ability to obtain finance to that extent.
The proper order altering the interests of the parties in that part of the property represented by the B Street, Suburb C property is for the sale of the B Street, Suburb C property and a division of the net proceeds of sale between the parties so as to achieve an overall property settlement between them of 60% to the wife and 40% to the husband. I will make machinery of sale orders for the sale of the property pursuant to the husband’s orders sought, although I find his proposed orders in relation to a reduction in reserve price of 15% and then 25%, as contained in his minute of orders sought at order 3, excessive and will reduce these figures to 5% and then a further 5% respectively.
In relation to the superannuation entitlements pool, I have found that an appropriate alteration of interest of the parties in the property represented by the superannuation entitlements is 54% to the wife and 46% to the husband. The total superannuation entitlements are valued at $672,838. Prior to any orders the Husband has $601,925 in superannuation entitlements and the wife has $70,913. To achieve the required alteration of the property, being the superannuation entitlements, the wife will have $363,332 and superannuation entitlements in the husband $309,506. Accordingly, the proper order is a superannuation splitting order for the benefit of the wife from the husband’s Super Fund 1 fund with a base amount of $292,419.
As recited earlier in these Reasons, procedural fairness was provided to the trustee of the Super Fund 1 in compliance with section 90XZD of the Act by the solicitors for the wife by the letter of 15 June 2022 stating in the draft order a proposed base amount of $300,000.
I will make an order as sought by the husband enabling him to recover possession of the specific items owned by him currently in the possession of the wife. I will also make an order for the wife to retain those items of property reflected on the Balance Sheet as currently her property as between herself and the husband and that the husband retain those items of property reflected on the Balance Sheet as currently his property as between himself and the wife. Each party will remain solely liable for their own liabilities as between the parties.
I will make the orders as sought by the husband for the sale of the B Street, Suburb C property and a division of the net proceeds of sale between the parties so as to achieve a division between the parties of 60% to the wife and 40% to the husband where the wife has already received $24,157 in value and the husband has already received $26,635 in value.
I will make the superannuation splitting order in favour of the wife out of the husband’s Super Fund 1 entitlements with a base amount of $292,419.
I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 24 March 2023
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
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