Wallace & Wallace

[2022] FedCFamC1F 536

Federal Circuit and Family Court of Australia

(DIVISION 1)

Wallace & Wallace [2022] FedCFamC1F 536

File number(s):

MLC 8415 of 2021

Judgment of:

STRUM J

Date of judgment:

26 July 2022

Catchwords:

FAMILY LAW – PROPERTY – Where the parties were married for approximately 10 years – Where both parties were young – Where there were no children of the parties’ relationship – Where both parties worked in their respective fields for the duration of the marriage – Where the parties initially earned similar incomes – Where the husband was offered a position within a company through his and his father’s connections to the chief executive officer of that company – Where the husband was offered to acquire shares in that company, funded entirely with vendor finance – Where the shares had no equity upon acquisition but were worth approximately $35 million at trial – Where, but for the shares, the parties’ contributions were otherwise equal – Where the very substantial increase in the value of the shares was a windfall – Where the parties’ contributions overall globally are assessed at 52.5 per cent to the husband and 47.5 per cent to the wife – Where no further adjustment is made pursuant to section 79(4)(e) on account of section 75(2) factors.

Legislation:

Evidence Act 1995 (Cth) ss 76(1), 79(1), 144

Family Law Act 1975 (Cth) ss 43(1), 75(2), 79

Cases cited:

Barnell and Barnell (2020) FLC 93-961

Crapp and Crapp (No 2) (1979) FLC 90-615; [1979] FamCA 17

D and D [2005] FamCA 1462

Dickons & Dickons (2012) 50 FamLR 244; [2012] FamCAFC 154

Farmer & Bramley (2000) FLC 93-060; [2000] FamCA 1615

Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64

Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57

Figgins & Figgins (2002) FLC 93-122; [2002] FamCA 688

Grier & Malphas [2016] FamCAFC 84

Halstron & Halstron [2022] FedCFamC1A 65

Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424; [2003] FCA 893

Hoffman and Hoffman (2014) FLC 93-591; [2014] FamCAFC 92

Hurst and Hurst (2018) FLC 93-851; [2018] FamCAFC 146

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353

Kane & Kane (2013) FLC 93-569; [2013] FamCAFC 205

Kelly and Kelly (No. 2) (1981) FLC 91-108; [1981] FamCA 78

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

McGregor v McGregor (2012) FLC 93-507; [2012] FamCAFC 69

Mehmet and Mehmet (No. 2) (1987) FLC 91-801; [1986] FamCA 24

National Trustees Executors & Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1; [1940] HCA 5

Perlman v Perlman (1984) 155 CLR 474; [1984] HCA 4

Robb & Robb (1995) FLC 92-555; [1994] FamCA 136

Rosati & Rosati (1998) FLC 92-804; [1998] FamCA 38

Roverati and Roverati (2021) FLC 94-027; [2021] FamCAFC 89

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Steinbrenner & Steinbrenner [2008] FamCAFC 193

W and W (1980) FLC 90-872; [1980] FamCA 63

Waters & Jurek (1995) FLC 92-635

1           Wells v Wells (1977) FLC 90-285; [1977] FamCA 62

Woodcock v Woodcock (1997) FLC 92-739; [1997] FamCA 5

Zappacosta v Zappacosta (1976) FLC 90-089; [1976] FamCA 56

Division:

Division 1 First Instance

Number of paragraphs:

186

Date of hearing:

28 and 29 March 2022 and 1 April 2022

Place:

Melbourne

Counsel for the Applicant:

Mr North SC with Mr Barbayannis

Solicitor for the Applicant:

Lander & Rogers

Counsel for the Respondent:

Ms Smallwood SC with Mr Kanarev

Solicitor for the Respondent:

Pasha Legal

Table of Corrections
27 July 2022	In paragraph 84 the word “de fact” has been corrected to show “de facto”
27 July 2022	In paragraph 75 the words “woof and weft” have been corrected to show “warp and weft”

ORDERS

MLC 8415 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WALLACE

Applicant

AND:

MR WALLACE

Respondent

order made by:	STRUM J
DATE OF ORDER:	26 JULY 2022

THE COURT ORDERS THAT:

1.Within 7 days, the parties submit to the Chambers of the Honourable Justice Strum a minute of final orders to give effect to these Reasons for Judgment for a division of the parties’ net non-superannuation property in the proportions of 47.5 per cent to the wife and 52.5 per cent to the husband and an equal division of their superannuation.

2.In the event of disagreement as to the form of the orders to be made:

(a)within a further 7 days thereafter, each party submit a minute of final orders proposed by them, together with an outline of submissions in support thereof (not to exceed 5 pages); and

(b)the matter be listed for further hearing as soon as practicable thereafter.

3.Within 28 days of final orders being made, any party seeking an order for costs file and serve an Application in a Proceeding and supporting affidavit(s).

4.Within 14 days thereafter, the other party file and serve a Response to an Application in a Proceeding, with supporting affidavit(s).

5.Within a further 7 days, each party file and serve submissions in support of or opposition to the application for costs.

6.Any application for costs thereafter be determined on the papers in Chambers.

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 the pseudonym Wallace & Wallace has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 27 July 2022

STRUM J:

Introduction:

1. Counsel for the applicant wife, in their written closing submissions, submit that, in this case, the factual disputes are minimal, indeed almost all are inconsequential, and that the assets of the parties are readily ascertainable and capable of being valued. I agree.

2. The principal issue in this case may be simply stated: assessment of the parties' respective contributions pursuant to section 79(4)(a), (b) and (c) of the Family Law Act 1975 (Cth) ("the Act") in relation to non-superannuation assets. It is agreed that their superannuation entitlements should be divided between them and, on the facts in this case, neither party vigorously pursued any adjustment pursuant to section 79(4)(e) of the Act, on account of section 75(2) factors. The wife seeks an equal division of the parties' non-superannuation property, whilst the respondent husband belatedly seeks that it be divided into proportions of 75 per cent in his favour and 25 per cent in favour of the wife (having, until the afternoon of the first day of the hearing, sought a division in the proportions of 85/15 per cent).

3. In circumstances where they each seek orders under section 79(1) of the Act for an alteration of interests in property, albeit to different effect, it is implicit that they concede it is just and equitable for the Court to do so, as required by section 79(2) of the Act. I agree that, in all the circumstances, it is just and equitable for the Court to make an order under section 79 of the Act. The matters identified by the plurality of the High Court in Stanford v Stanford (2012) 247 CLR 108 at [42] clearly apply in this case. The overwhelming majority of the assets available for division are held in a discretionary trust controlled by the husband; however, the wife, as a beneficiary thereof, presently has rights to due administration and consideration by the trustee thereof.

4. For the reasons which follow, I shall order a division of the parties' non-superannuation property in the proportions of 52.5 per cent in favour of the husband and 47.5 per cent in favour of the wife.

5. The wife was born in 1988 and is 33 years of age. She is a health professional and is employed at the B Hospital. She earns approximately $115,000 per annum, inclusive of superannuation.

6. The husband was born in 1987 and is 35 years of age. He is the Australian senior manager of the C Group ("C Group"). He earns approximately $230,000 per annum, inclusive of superannuation. He also receives bonuses that are mainly performance-based, such that currently his total remuneration is in the order of $587,000.

7. The parties commenced cohabitation in early 2011 and were married in late 2014. They separated in the first half of 2020. The husband asserts that occurred in January or February and the wife asserts it occurred in June. For the reasons hereafter, little turns on the precise month in which separation occurred, which was conceded by counsel for both parties during the course of the hearing. Their divorce became absolute in late 2021. The period under consideration therefore spans just under a decade. There are no children of the relationship.

   Background

8. The parties commenced their relationship in around 2003 - 2004, whilst attending the same high school. After they respectively attained their secondary qualifications, the husband undertook and completed an apprenticeship and the wife undertook and completed a tertiary degree. Upon attaining their qualifications, they each worked in their respective fields.

9. In 2006, the husband was recruited to play sport for the Suburb D team. He retired in 2016, five years after the parties commenced cohabitation. During that time, he earned a relatively modest income therefrom which, at its highest, was in the order of $15,000 to $20,000 per annum. The sporting season ran for six months each year.

10. In late 2010, in contemplation of purchasing a residential property together and commencing cohabitation, the parties opened two accounts in their joint names at the Commonwealth Bank of Australia ("CBA accounts"), into which they transferred their personal savings. Thereafter they continued to save for a deposit for their intended purchase.

11. In or about early 2011, the parties commenced cohabitation and signed a contract to purchase the property at E Street, Suburb F, ("Suburb F") for the sum of $500,500. The parties applied the funds in their CBA accounts, to which they had approximately equally contributed, towards the deposit for Suburb F. They borrowed the balance of the purchase price from the Commonwealth Bank, in the sum of $456,259, secured by a mortgage over that property.

12. When the parties moved into Suburb F, they undertook some modest renovations and improvements to the property. Other than their savings, they had minimal assets at the commencement of cohabitation. Further, their incomes did not differ significantly.

13. In 2012, the husband undertook tertiary study. In 2013, the wife undertook postgraduate study. These further qualifications have assisted each of them in the pursuit of their respective careers.

14. In late 2013/early 2014, the husband resigned from his employment, in order to commence a business specialising in providing building works. For this purpose, Wallace Group ("Wallace Group") was incorporated. The husband was the sole director and secretary and the wife was the sole shareholder of Wallace Group. At about the same time, the Wallace Family Trust ("Trust") was settled. The wife was the sole trustee and the husband and she were and remain the beneficiaries named in the schedule to the Trust deed.

15. The husband asserts that, "other than being listed as sole trustee of the family trust, the wife had no involvement in the establishment or operating of the [Wallace Group] business". The assertion that she was merely "listed as sole trustee" of the Trust, "on the basis of asset protection advise [sic]" ignores the liabilities and fiduciary duties to which trustees are subject. It is analogous, for present purposes, to the role of a director, which this Court has long recognised to be a relevant contribution for the purposes of section 79(4). See, for example, Lee Steere and Lee Steere (1985) FLC 91-626 at 80,078; Fields & Smith (2015) FLC 93-638 at [96]; Grier & Malphas [2016] FamCAFC 84 at [141]. Further, he deposes that he asked the wife to assist him with bookkeeping, amongst other operational matters for the business. I shall return to these issues, and take them into account, in my consideration and assessment of the parties' contributions.

16. There initially was a dispute between the parties in relation to the financial success or otherwise of the business conducted by the husband through Wallace Group. The wife asserted that the company had only one project, to the value of about $10,000, whereas the husband deposed to five projects, at a cost totalling about $167,000. They were each cross-examined about their respective assertions and I find that, to some extent, they each overstated their respective cases. There were clearly several projects undertaken but, whilst the company's gross income was in the order asserted by the husband, the net income was in the order by the wife.

17. In about late 2014, the husband was offered, and accepted, employment at C Group as a manager. He was already acquainted with the managing director and chief executive officer of C Group, Mr G, through both his father and his own sporting activities. Mr G also offered the husband to acquire a minority shareholding in C8 Pty Ltd ("C8 Pty Ltd"), a subsidiary of C Group, and to provide vendor finance for the whole of the acquisition, which was to form part of his remuneration package from C Group. The husband was subsequently promoted within C Group on several occasions.

18. In 2016, in the lead-up to the float of C Group on the Australian Stock Exchange the following year, the husband was offered the opportunity to acquire a 2.5 per cent shareholding in the initial public offering, the value of which was approximately $1,300,000, in lieu of the C8 Pty Ltd shares in and the associated debt. I note that in the parties' agreed joint chronology for the purposes of the trial, it is agreed between them that in 2016 the "parties buy shares in [C Group] initial public offering". I take that to be a concession by the husband. For this purpose, J Pty Ltd ("J Pty Ltd") was incorporated. At all relevant times, the husband has been the sole director and secretary of J Pty Ltd. The wife agreed to be and was replaced by J Pty Ltd as trustee of the Trust. The C Group advanced the sum of approximately $1,300,000 ("C Group Loan"), in order to fund the whole of the acquisition of the C Group shares, in substitution for or rollover of the earlier loan. Therefore, at the time of the acquisition of the C Group shares, the parties had no equity in them, by reason of the corresponding C Group Loan. The C Group Loan was to be met from dividends in 2017 and thereafter. However, as at the date of trial, some five years later, the balance of the C Group Loan remained $913,000, being its balance in 2017. The C Group Loan was subject to the husband's continued employment and the continued C Group shareholding. If the husband ceased employment with C Group or the shares were sold, the loan would become immediately due and payable.

19. When C Group floated in late 2017, the husband was ultimately issued 3,800,000 shares valued at $1 each. Accordingly, by then, during the marriage, the value of the C Group shares had increased by approximately $2.5 million by reason of the successful float.

20. In or about 2020, a formal loan agreement was executed by the husband in respect of the C Group Loan, in the sum of approximately 913,000, for governance or compliance reasons, due to C Group being a publicly listed company. Nothing turns on this as, ultimately, it was agreed the loan is a liability to be taken into account in deriving the net asset pool available for division between the parties. Although the agreement provides for the payment of interest at a rate of 5.25 per cent, it was agreed between the parties that only the principal sum be included as a liability at trial.

21. The husband continued his rise within C Group. He was promoted several times, culminating in his current role as Australian senior manager of C Group, to which he was appointed in early 2022.

22. In 2017, the parties sold Suburb F for $695,000 and they commenced to live in rented accommodation. The net proceeds of sale, in the order of about $192,000, were applied, inter alia, to the acquisition of publicly listed shares through K Pty Ltd, as well as to an overseas holiday and repayment of debts.

23. C Group paid for the husband to undertake a postgraduate degree at L University over the course of 2019, as part of his professional development. The majority of the course was undertaken in Melbourne, but the husband was required to travel to the United Kingdom on four occasions that year. On one of those occasions, the wife accompanied him and they also holidayed.

24. The parties separated in the first half of 2020. The husband asserts separation occurred in February and the wife asserts it occurred in June of that year. They continued to attend marriage counselling until April. Annexure MW-24 to the wife's reply affidavit filed 21 March 2022 is an exchange of text messages between the parties on 21 June 2020, in which the husband addressed the wife as "sweetheart", asked her if she wanted to go for a walk, ended one exchange "xx" and told her: "I love you so much - please always remember that". I accept that the parties' marriage had broken down to some extent by February 2020, as they commenced to live separately, in different accommodation, and attended marriage counselling. However, on balance, I find those sentiments, professed by the husband on 21 June 2020, to be inconsistent with his assertion that the marriage had broken down finally prior to that date. A marriage that may be in the process of breaking down is not necessarily a marriage that has yet broken down. In Perlman v Perlman (1984) 155 CLR 474 at 500, Wilson J recalled "the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night". Without either party resiling from their respective assertions as to the date of separation, they ultimately conceded (and sensibly so) that nothing turns upon it.

25. In late 2020, the parties attended upon M Consulting, accountants, to discuss the division of their property. The husband, in his trial affidavit at [59] denies that they "discussed that there be an equal division of the share portfolio, especially the [C Group] shares" (noting that the overwhelming bulk and value of the parties' assets is comprised of the C Group shares, amongst other publicly listed shares). However, the letter dated late 2020 from M Consulting, addressed to the parties, (annexure MW-14 to the wife's trial affidavit) is replete with references to an equal division, including, in particular, the C Group shares, in respect of which it was stated:

    It was agreed these shares would be split on a 50/50 basis subject to adjustments resulting from the above allocation of assets.

26. Relevantly, the letter also stated:

    An amount of $913,495 is payable to [C1 Unit Trust] representing the initial purchase of interests in[ C Group] prior to and as part of the corporate Listing. This liability will be retained by [Mr Wallace], with an adjustment to be made against [Ms Wallace] reflecting 50% of this liability.

1. At the time of the C Group listing in 2017, the C Group shares were worth $1. The husband deposes (at [66] of his trial affidavit):

   [In early] 2020, which was after [Ms Wallace] had left our marital home, [C Group] shares were valued at $2.397. In mid-June 2020, the approximate date the Wife attributes to our separation, the [C Group] share price was $2.367. The number of shares owned by [Wallace] Family Trust in [C Group] at June 2020 were 3,827,213…

2. Since separation, C Group has expanded, acquiring businesses in Australia and the USA. As part of an equity raise in the past year or so, the husband acquired (within the Trust) an additional 107,526 C Group shares, funded by a partial drawn-down on a loan facility from the National Australia Bank secured over 1,450,000 shares.

3. As at the date of trial, the C Group shares were valued at $34,948,930 ($8.78 per share).

4. In mid-2020, on any view after separation, J Pty Ltd, in its capacity as trustee of the Trust, at the husband's direction, acquired 3,019,456 shares, for the sum of $150,973 (at $0.05 per share), in N Limited (now trading as O Limited), funded partly by the husband's salary and partly by funds standing to the credit of J Pty Ltd in its K Pty Ltd share trading transaction account, in approximately equal proportions. Ultimately, nothing was said to turn upon this. This shareholding forms part of the assets available for division between the parties.

5. At [78] of the wife's trial affidavit, she deposes that, in early 2021, she received a draft Financial Agreement prepared by the husband's solicitor, Pasha Legal. That document is annexure MW-18 to her trial affidavit. The coversheet to the draft agreement bears the name of that firm. The draft section 90G statement contemplates that independent legal advice was to be provided to the husband by Hina Pasha, solicitor, of Pasha Legal, who continues to act for him. There was no suggestion, then or now, that the draft agreement was provided on a "without prejudice" basis.

6. The draft agreement, at clause 2, stated that "after separation [Mr Wallace] and [Ms Wallace] own assets as "joint assets" set out in annexure A of this agreement". Annexure A included the C Group shares, then valued at $12,605,526. They have almost trebled in value in the ensuing 12 months. Clause 2 then provided how those joint assets were to be disposed of by them. In summary, assets and liabilities were generally to be divided equally. In particular, clause 2(viii) provided:

   The primary asset is made up of shares held in [C Group], an ASX listed company. It was agreed these shares would be split on a 50/50 basis subject to adjustment resulting from the above allocation of assets. In order to avoid daily, short term price fluctuations in the share value, we have used the price of $3.31, which represents a volume weighted average price ("VWAP") over the last 90 days.

7. At [79] of her trial affidavit, the wife deposes that:

   [Mr Wallace] and I met shortly after the draft agreement had been prepared by [Mr Wallace's] lawyer, and went through the document. We both agreed that this was how we agreed to finalised [sic] property matters between us.

8. However, a few weeks thereafter, in mid-2021, Ms Pasha advised the wife's solicitor by email, inter alia, as follows:

   I am writing to you in order to advise that my client has not reached a final agreement and that the terms contained in the document are neither finalised nor has it been executed. I would ask that you bear this in mind when consulting with [Ms Wallace].

   I have advised my client that it would be in the parties' best interest to resolve their property settlement by way of consent orders sealed by the Family Court, as opposed to a BFA. In these circumstances, it is was premature for my client to advance a document by hand to your client which has not been finalised, either in terms of mutual disclosure or by way of calculating a fair and equitable settlement based on their percentage contributions.

   (Emphasis in original)

   That email is annexure MW-19 to the wife's trial affidavit.

9. The contents of [78] - [80] of the wife's trial affidavit and annexures X-18 and X-19 thereto are in evidence and are not disputed by the husband. There was no explanation by the husband, in evidence, as to why he agreed to and then resiled from an equal division of assets, including the C Group shares; why his solicitor stated that it is was premature for the husband to provide the draft agreement to the wife; what disclosure, in particular, was still required; or why his solicitor strangely stated that the draft agreement had not been finalised, "either in terms of mutual disclosure [sic] or by way of calculating a fair and equitable settlement based on their percentage contributions". It is difficult to understand that latter assertion, in circumstance where the draft agreement, which was prepared by his solicitor, did just that; it calculated a proposed settlement based on percentage contributions. I consider this issue further, below, in my overall assessment of the parties' contributions to achieve a just and equitable division of their property. Whilst, in the result, the parties did not enter into the Financial Agreement, it is nevertheless relevant evidence.

10. Some weeks later, on 28 July 2021, the wife instituted these proceedings.

    Assets, Liabilities and Financial Resources

11. At trial, the composition and value of the parties' non-superannuation assets and liabilities were ultimately agreed to be as follows:

Asset/liability	Ownership	Value
C Group - 3,980,516 shares @ 8.78 per share	J Pty Ltd ATF Wallace Family Trust	$34,948,930
P Shares 22,223 @ 1.06 per share	J Pty Ltd ATF Wallace Family Trust	$23,556
Q Limited shares - 165,000 @ $0.18 per share	J Pty Ltd ATF Wallace Family Trust	$29,700
R shares - 113,429  @ $0.42 per share	J Pty Ltd ATF Wallace Family Trust	$47,640
S Pty Ltd shares - 4,530 @ $1.19 per share	J Pty Ltd ATF Wallace Family Trust	$5,390
T Group shares - 396,000 @ $0.018 per share	J Pty Ltd ATF Wallace Family Trust	$7,128
U Group shares - 36,235 @ $0.95	J Pty Ltd ATF Wallace Family Trust	$34,423
V Limited shares - 197,600 @ $0.13 per share	J Pty Ltd ATF Wallace Family Trust	$25,688
O Limited shares - 1,084,365 @ $0.19 per share	J Pty Ltd ATF Wallace Family Trust	$206,029
W Limited  shares - 3,788 @ $1.60 per share	J Pty Ltd ATF Wallace Family Trust	$6,060
Z Index ETF shares - 7,000 @ $9.01 per share	J Pty Ltd ATF Wallace Family Trust	$63,070
AA Unit Trust - 37,002 @ $0.21 per unit (unlisted)	J Pty Ltd ATF Wallace Family Trust	$7,770
C4 Unit Trust - 21,002 units @ $0 per share (unlisted)	J Pty Ltd ATF Wallace Family Trust	$0
C Group - 45,002 units @ $2.58 (unlisted)	J Pty Ltd ATF Wallace Family Trust	$116,105
C Group - 142,501 units @ $2.63 (unlisted)	J Pty Ltd ATF Wallace Family Trust	$374,777
CC Pty Ltd shares - 1,548,135 shares $0.04 per share (unlisted)	J Pty Ltd ATF Wallace Family Trust	$61,925
CBA Account ending …92	Husband	$974
BB Bank ending …10	Wife	$14,023
Motor Vehicle 1	Wife	$15,000
Motor Vehicle 2	Husband	$57,600
Loan payable to C Group	J Pty Ltd ATF Wallace Family Trust	($913,495)
NAB loan secured over 1,400,000 C Group shares	J Pty Ltd ATF Wallace Family Trust	($734,000)
$34,398,293

1. In relation to the NAB loan facility secured over 1,400,000 C Group shares, it is agreed that the balance owing is $734,000, as set out in the table above. The limit of that facility is $2.7 million. In the husband's trial affidavit, he listed the limit of that facility as the liability, rather than only that part of it that has been drawn down. In this regard, Senior Counsel for the husband sought to impute dishonesty to the husband. Whilst, in his Financial Statement, the husband deposes to liabilities totalling $3,613,000, including the whole of the $2,700,000 facility, he makes it clear at item no. 50 thereof that the actual extent of the liability is only $734,000 and that $1.97 million is available for draw down. Further, this was confirmed by his Senior Counsel. In the circumstances, I do not impute any dishonesty to the husband; the error was readily apparent, albeit that it should not have occurred.

2. The parties' superannuation entitlements, which they agreed be equalised, total $353,314 and are comprised as follows:

Superannuation	Ownership	Value
Superannuation Fund 1	Husband	$232,581
Superannuation Fund 1	Wife	$121,733
$354,314

1. It is agreed that, in order to equalise the parties' superannuation interests, the sum of $55,424 be split from the husband's interest in favour of the wife, and I shall make such an order, procedural fairness having been accorded to the trustee of their superannuation fund.

2. Notwithstanding the husband's claim to a 75 per cent division in his favour, it is noteworthy that he concedes that superannuation should be divided equally. No explanation was proffered by him or on his behalf for this difference in approach.

3. Further, the husband and J Pty Ltd hold C Group performance rights, as follows:

Asset/liability	Ownership	Value
C7  Rights (49,220 C Group shares - current value $8.78 per share)	Husband	Not known
C7 Rights (99,302 shares - current value $8.78 per share)	J Pty Ltd ATF Wallace Family Trust	Not known

1. Due to the nature of those rights, it was agreed between the parties that their current value is unknown for the purposes of the balance sheet. The wife asserts they are a financial resource for the purposes of section 75(2)(b); the husband disagrees they are even that. They were, correctly in my view, described by Senior Counsel for the wife as "performance rights that crystalise in shares in a publicly listed company if [the husband] fulfils whatever may be the expectations on them" [sic]. Senior Counsel for the husband did not demur. The difference between them related, rather, to the categorisation of those rights, namely, whether or not they amount to a financial resource.

2. In my view, those rights do constitute a financial resource. Whilst that term is not defined in the Act, it has been held that it is intended to have a wide operation: see Crapp and Crapp (No 2) (1979) FLC 90-615 (Full Court, per Fogarty J) at 78,183.

3. In Kelly and Kelly (No. 2) (1981) FLC 91-108 at 76,802, the Full Court said:

   Clearly the term "financial resources'' must add some meaning not covered by the terms "income and property'', for example, contingent interests or benefits which a party actually received or was likely to receive, whether legally entitled thereto or not.

4. In relation to the C Group loan of $913,495, it was faintly suggested by Senior Counsel for the wife that it might be disregarded, inter alia, because the balance thereof has been static since about 2017 and it has not since been called up, nor was it disclosed by the husband to the National Australia Bank in his application for the $2.7 million loan facility. There was no argument, or even suggestion, that the C Group loan might be statute-barred: see Halstron & Halstron [2022] FedCFamC1A 65. Indeed, the loan was documented (and thereby arguably refreshed) in about 2020 for compliance reasons. Senior Counsel for the wife suggested the exclusion of the loan might counterbalance the exclusion of the performance rights. It is not a tit-for-tat; the two are unrelated. In circumstances where the C Group shares were initially acquired with the C Group loan, I will not exclude that loan as a liability.

5. It was asserted by Senior Counsel on behalf of the husband that the unlisted C Group shares cannot be the subject of transfer. Senior Counsel for the wife initially submitted that there was no evidence of any impediment to transferring those shares. As a result, in brief oral evidence in chief, with my leave, Senior Counsel for the husband led the evidence to that effect from him.

6. I accept that the units (as they transpired to be, rather than shares) cannot be transferred. It is otherwise agreed between the parties that the shareholdings should be divided between them in specie in their proportionate shares, as determined by me. How any necessary adjustment should be effected, to take into account their motor vehicles and bank accounts and the C GroupLoan and NAB facility to be retained by the husband, is unclear. The adjustment in favour of the wife will, as proposed by the husband, take into account the unlisted units which cannot be divided in specie.

   Contributions

7. As recited above, the wife seeks an equal division of the parties' property. She opened and closed the trial on that basis. Whilst the husband now seeks that the parties' non-superannuation property be divided in the proportions of 75 per cent in his favour and 25 per cent in favour of the wife, at the commencement of the trial, he sought a division of 85 per cent in his favour and 15 per cent in favour of the wife. Sensibly, but not enough so, he amended his position after the luncheon adjournment on the first day of the hearing, during cross-examination of the wife. On any view of the facts of this case, for the reasons which follow, I find that initially proposed adjustment was a mean-spirited approach towards the wife's contributions in this nearly decade-long relationship and simply wrong.

8. For the reasons which follow, I find that each of the parties, to some extent, exaggerated their own contributions and downplayed those of the other, although I acknowledge it must be difficult for parties generally to be objective about their own case. However, in this case, in certain instances, they each descended to unnecessary, pernickety, point-scoring attempts.

9. The wife, in her trial affidavit, sets out her income at various times. Upon graduating in 2009, prior to the commencement of cohabitation, her income was approximately $60,000. At the commencement of cohabitation in 2011, it was approximately $70,000 whilst, she asserts, that of the husband was $65,000. This is denied by the husband, who deposes that he earned $88,000 (including superannuation) at the time and that, later in the year, his salary package increased to $110,000. In or about 2013, the wife's income increased to approximately $80,000. In mid-2016, she reduced her hours to part-time (0.8 equivalent of full-time). She says that she did so at the husband's request, so that she could travel with him and help him whilst he was working. This is denied by him. He asserts that she did so of her own accord, in order to have more leisure time but asserts that, in any event, it had a minimal impact on her salary. Such a modest decrease in her income, in my view, was offset by a modest increase in the time available to her within which to make a contribution pursuant to section 79(4)(c) to the welfare of the family constituted by the husband and her. It was part of the ebb and flow of a relationship. Indeed, in cross-examination, the wife agreed that, in the early stages of the parties' marriage, they were earning "pretty much the same amount of money as each other". Given that I must assume the wife was cross-examined on instructions, I take that to be as much a concession by the husband as by her.

10. In circumstances where each party was working to the best of their abilities, in their respective chosen fields of endeavour within their joint union, I give little weight to any modest discrepancies in their incomes during cohabitation. Whilst the husband additionally earned a modest income from playing football, that was something he had been doing since 2006, and was clearly something he very much enjoyed, having played football since he was 10 years of age. I view it akin to a hobby with a modest financial return. Indeed, when I asked Senior Counsel for the husband in closing submissions whether, in a case of this magnitude, it was contended that the husband's sporting income made any difference to his contributions, she conceded that it did not. Whilst I take it into account globally in my consideration and assessment of the husband's contributions, I give it no weight.

11. The wife deposes that the husband's involvement in the Suburb D Sporting Club required significant involvement from her perspective as well. Her evidence is that she attended football games in which the husband played on weekends, at his insistence, as well as a significant number of social and formal events associated with the club. However, in cross-examination, she conceded that she wanted to go to support him.

12. There is a dispute between the parties as to the frequency with which the wife attended the husband's games. I accept that she generally attended when she could, but not as frequently as she suggests. For example, in 2013, when she was undertaking her specialisation, she conceded she only attended four or five matches. Further, in the years prior and subsequent to 2013, she conceded that she endeavoured to attend as many games as her roster permitted. Similarly, I view the wife's attendance at the husband's football matches as simply part of the matrix of their relationship. There was no suggestion she did not enjoy those activities or that they were an imposition on her. The husband's evidence, which she does not deny, is that they became friends with the other football players and their partners and that she had her own social group of friends within the football community. Again, it is not something to which I give any particular weight. The husband's football playing, his income therefrom and the wife's attendance at his games and social events were simply part of strands of the fabric of their union.

13. Similarly, it matters little, if at all, in my view, whether one or the other paid for certain expenses from time to time, including entertainment and holidays. On the evidence, they clearly both did so, as one might expect in a relationship where they were both working and had no children.

14. In relation to the deposit for the purchase of Suburb F, the wife saw fit to assert that she contributed more than the husband. She deposes that she contributed $37,400, whereas he contributed $35,810. This is denied by the husband, who deposes that he contributed $37,810. It is difficult to understand how in many, if not most, cases, let alone this one (involving a relationship of nearly a decade and assets in excess of $34 million), such a modest discrepancy could be thought to be, or indeed be, relevant. In cross-examination, the wife conceded the difference was insignificant and said she did not begrudge contributing marginally more than the husband towards the deposit. That being so, it is all the more difficult to understand why she saw fit to make the point in the first place, if it were not in an attempt to score one.

15. Upon settlement of the purchase, they thereafter variously contributed to the mortgage repayments and their household and living expenses from their respective incomes until Suburb F was sold in 2017. The net proceeds of sale were then applied, inter alia, to the acquisition of publicly listed shares through K Pty Ltd, which portfolio subsists and has increased in size and value, as well as to a holiday overseas and repayment of debts. Whether, in the course of their marital partnership, one paid slightly more or slightly less or for one category of household expense or another is not germane, when one considers their contributions generally, other than the C Group shares, which specific issue I address below.

16. The Suburb F deposit had its genesis in the CBA accounts the parties had established in their joint names in late 2010. Thereafter, their respective incomes initially continued to be paid into accounts in their sole names, from which they each regularly transferred moneys to "top up" the CBA accounts to ensure there were sufficient funds to meet expenses, including mortgage repayments.

17. In relation to the renovations to Suburb F, these were funded and variously undertaken by the parties, with some very modest assistance from the wife's mother, who sewed curtains for the kitchen. Again, there is nothing in the evidence that could or would lead me to assess one party's contributions as being greater than those of the other in this regard.

1. The wife asserts that, upon the commencement of cohabitation and until about 2015, she was "in charge" of the parties' budget, being solely responsible for the payment of bills, as the husband "was not able to budget very well, and he had difficulty managing the variety of payments required". Save to admit that the wife paid some bills, this is denied by the husband. In cross-examination, Senior Counsel for the husband challenged the wife's evidence that the husband was not able to budget very well, in circumstances where he was a manager and "manages sums of money in the vicinity of $25 million". The wife nevertheless maintained that the husband "could not manage his time, and regularly, things would - if I asked [the husband] to pay them, they [would] be paid late because he would simply forget. So therefore, it was easier if I just paid all the various utilities, rates, et cetera, because I could budget and plan accordingly". In circumstances where the husband was a manager from 2014, first for Wallace Group and then for C Group, and was increasingly managing costly projects, I find the wife's assertions to be exaggerated. On her own evidence, notwithstanding the husband's alleged inability to budget well, in or about 2015, they obtained a joint credit card, with which purchases were made, so I find she must by then have had confidence in his ability to budget.  Further, there was no suggestion by the wife that there were any ramifications caused by any late payments by the husband. This is another example of the parties simply both contributing, in different ways, to various household tasks within their joint union, that does not warrant a finding of anything other than equality in this respect.

2. The wife deposes that she was responsible for undertaking all, and that the husband did not undertake any, domestic duties. The husband acknowledges that the wife usually cooked and cleaned but deposes that he also undertook some domestic duties, including all outside maintenance work. Whilst little, if anything, turns upon this, I accept that the wife was primarily, but certainly not solely, responsible for homemaker contributions, but that the husband contributed in this regard too. Notwithstanding that, in cross-examination, the wife persisted in maintaining that she did "absolutely everything in the house … every single thing", that was then undermined by her evidence that "he never regularly put loads of washing on" (emphasis added). Further, she conceded that the husband attended to maintaining the property outside, namely, the building and so forth. I find she exaggerated her contributions and, in so doing, correspondingly understated his.

3. The husband asserts that the wife was not involved with Wallace Group, which was established in 2014, "in any way" and that she "did not ever concern herself with the business" he initially conducted through it. However, that ignores the fact that she was initially the sole shareholder of that company, the sole trustee of the Trust (with attendant liabilities) and that, during this time, she continued her employment in and remuneration from her chosen field of endeavour. He deposes that she was appointed the sole trustee of the Trust on the basis of asset protection advice. However, that too ignores the fact that was, in itself, a contribution by her towards the conservation of property.

4. Conversely, insofar as the wife asserts that she was intricately involved in the decision to establish Wallace Group, she conceded in cross-examination that, at that time, she never met the company's accountants. However, the wife's evidence that the husband and she had several in-depth discussions in relation to, and that a lot of planning went into, the decision to establish the Wallace Group was unshaken and I accept it. They were then, by all accounts, a happy young couple, planning their future together.

5. I accept that the establishment of Wallace Group and the Trust, and the prospects of the husband's business, were things that the parties discussed. It will be recalled that the parties were to be married later that year. As the wife said: "we were young and getting married and agreed the risk was one worth taking for ourselves and our potential family".

6. A stark example of both parties' respective exaggeration is the work undertaken by the husband through Wallace Group over the course of 2014. The wife asserted, inter alia, that the husband did not make any substantial income therefrom, only undertaking one project, to the value of about $10,000. In cross-examination, she conceded that was wrong. Conversely, however, the husband asserted that Wallace Group undertook several projects and consultancy engagements, particularising five thereof, at a total cost of $167,000. However, the tendered financial statements and taxation returns for the company for the financial year ended 30 June 2015 disclose that, whilst there was a gross income of $141,350, after costs and expenses, there was a net profit (before tax) of $11,208 (which is not dissimilar to the figure posited by the wife). The discrepancy between the figures of $167,000 and $141,350 was explained by the husband in cross-examination as being referable to some income received outside of that particular financial year.

7. Whilst, in the financial year ended 30 June 2015, the wife generated more from her employment as a health professional than the husband did from Wallace Group, again, they were both working to the best of their abilities and earning in their respective, ongoing and agreed fields of endeavour within their union. The parties had available to them at this time, as a "safety net", approximately $60,000 in an offset account. The husband deposes in this regard that "I had $60,000 savings in a bank account in my sole name". In circumstances where the parties' savings at about the commencement of cohabitation were applied to the purchase of Suburb F and no evidence was led as to the circumstances in which the $60,000 was accrued, I infer this occurred during cohabitation. Taking these matters into account, I do not find there to be any substantive distinction between these respective contributions of the parties.

8. The wife asserts that, after the husband commenced his employment at C Group, he was required to work long hours and undertake significant travel, as a result of which "all contribution as homemaker and all domestic duties were undertaken by me as had been the case since our cohabitation" (emphasis added). Apart from the fact that it is an exaggeration, for the reasons above, it also disregards the fact that, as the wife conceded in cross-examination, when the husband worked long hours or travelled, she was largely the beneficiary of her own homemaking activities, for which she cannot claim credit under section 79(4)(c): cf. Robb & Robb (1995) FLC 92-555 and Mehmet and Mehmet (No. 2) (1987) FLC 91-801.

9. The wife deposes that, between 2015 and 2019, at the husband's request, she attended C Group related work events with him, including interstate and overseas. However, in respect of travel, all travel on which she accompanied him, both interstate and overseas, also comprised an entertainment component for them, be it a work function or a holiday. As the wife explained in cross-examination, that otherwise was "because he had his work and I had mine". She accepted too that she never hosted the husband's C Group colleagues at home. I accept the wife was supportive of his career there but then, so too was the husband supportive of her career, in particular her reduction of her working hours. Again, this was part of the give and take of their relationship.

10. In relation to the wife's assertions in her trial and reply affidavits that she "supported" the husband in his work endeavours, the wife said that he "regularly liked to debrief on the days and - the day's activities, the relationships at his work, comings and goings of people. So I would say that I provided a lot of emotional support". Further, she said that he:

    …worked very hard, worked tirelessly. He was very determined and he was very driven. And with that comes a lot of stress, working long hours, working, as we've said, interstate, overseas. A lot of pressure; a lot of stress. And he would regularly come home and want to discuss what was going on, and debrief, as I've said, offload. And I was very happy to engage in those conversations, provide my - my opinion, or just some sort of affirmation, verbal support, emotional support, in that sense.

11. In re-examination, she was asked what was the effect of the discussions about the prospects of the business and what it might mean for the husband and her. She said:

    We were young, we were about to get married and we decided collectively that it - it was a risk worth taking to better our future, to increase our earning income in the future and set ourselves up for, financially, a better future, to provide for ourselves and a potential family. So we weighed up the risks and we took the risk.

12. In relation to the balance of the parties' publicly listed shares, held by J Pty Ltd as trustee of the Family Trust in the K Pty Ltd portfolio, they have their genesis in about $80,000 of the proceeds of sale of Suburb F. Again, there is no reason to ascribe a difference in contributions between the husband and the wife in this regard.

13. Shortly after separation, the husband caused J Pty Ltd, in its trustee capacity, to purchase 3,019,456 shares in N Limited (now trading as O Limited), at $0.05 per share, for the total sum of $150,973, which was drawn from the Trust's Commonwealth Bank business transaction account. As at the date of trial, there were 1,084,365 shares in O Limited, valued at $0.19 per share, totalling $206,029, held in the Trust's K Pty Ltd share portfolio. It is readily apparent that those shares have increased by about $55,000 in value. In circumstances where the K Pty Ltd share portfolio has its genesis in the proceeds of sale of Suburb F, the O Limited shares comprise about 0.6 per cent of the net value of the asset pool and the increase in their value comprises an even more miniscule proportion of the pool, it is mystifying that this was even raised at trial. However, viewed globally, I do not find that this factor should result in any greater weight to the husband's contributions.

14. To this point, prior to considering the issue of the C Group shares, I would globally assess the parties' respective contributions pursuant to section 79(4)(a), (b) and (c) as being equal overall. They each point to their own contributions, overlooking or downplaying those of the other. However, their respective contributions were part of the warp and weft of their union. For example, the husband conceded early in his cross-examination, that it was trite to focus on the details of their early contributions.

15. There has been some judicial debate, over the years, as to the concept and role of "partnership" within the assessment of contributions for the purposes of section 79(4)(a) - (c) of the Act. In Waters & Jurek (1995) FLC 92-635 (Full Court) at 82,379, Fogarty J said:

    In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests - as individuals and as a partnership.

    …

    On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end.

16. Similarly, in Kennon v Kennon (1997) FLC 92-757 (Full Court) at 84,300, Fogarty and Lindenmayer JJ said:

    The reality is that the parties lived their married life together, they brought to that marriage qualities which each saw as attractive. Within the s 79 context each party contributed as best they could the qualities which each brought to the marriage. In the husband's case it included the quality of being very wealthy. In the wife's case the qualities were less tangible.

17. In Farmer & Bramley (2000) FLC 93-060, Finn and Kay JJ concurred with Guest J's reasons for rejecting the appeal. Guest J (notwithstanding, however, his dissent as to outcome) referred (at [188]) to legislative recognition, by reason of the 1983 amendments to section 79(4)(a) - (c), of marriage being a "socio-economic partnership in which the parties may make contributions in different ways". See also at [191].

18. At [194], his Honour said:

    The significant fact in the proceedings before us is that the efforts of the parties resulted in a situation whereby they had not accumulated any assets as at the date of separation. In those circumstances, it is my view that the revision of s 79(4)(b) by the Family Law (Amendment) Bill 1983 was not intended to provide to the amended s 79(4)(c) the means for distribution of sole contribution property, the origins of which fell outside the period when the other party's contribution (for example, to the welfare of the family) was made. Take for example the scenario presently before the Court and substitute for the Lotto win a situation where the husband met and lived in a de facto relationship with another woman who passed away after a short period, bequeathing to him an estate of $5 million. It would, in my view offend the sensibilities of any rational clear thinking member of the public that the wife could make a claim upon the husband pursuant to s 79(4)(c) save in the limited manner to which I shortly refer.

19. In my view, in considering and assessing the weight to be accorded to contributions, a distinction might well be made between lotto winnings, being a windfall with little or no direct connection to a party, and an inheritance which, even if a windfall, may have a much stronger, direct connection with the recipient beneficiary, such as a familial connection. Clearly, each case must turn on its own facts. Like fingerprints, no two marriages are the same. However, I do not need to decide that issue in the present case.

20. Notwithstanding earlier dicta, some of which I have referred to above, including, in particular, that of Guest J in Farmer & Bramley, in JEL and DDF (2001) FLC 93-075, Holden and Guest JJ said (at [152]) that "[t]here is no presumption of equality of contribution or 'partnership".

21. The first of those propositions is well settled and beyond dispute and nothing more need be said in that regard. However, as to the second proposition, in Figgins & Figgins (2002) FLC 93-122 (Full Court), Nicholson CJ and Buckley J subsequently said (at [134]):

    We reject the concept that there is something special about the role of the male breadwinner that means that he should achieve such a preferred position in relation to his female partner. To do so is to pay mere lip service to gender equality. Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other. We think that cases such as JEL and DDF (supra) and the minority view of Guest J in Farmer and Bramley have missed this point and have led to an imbalance of gender considerations in arriving at results that unduly favour the male partner.

22. I am bound by and respectfully agree with the dicta in Figgins that marriage is and should be regarded as a genuine partnership to which each brings different gifts. It is not a business relationship, nor should the parties' contributions be viewed through the prism of equity, such as in the case of resulting or constructive trusts. Indeed, section 43(1)(a) of the Act provides that:

    A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to:

    (a)the need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life.

    (Emphasis added)

23. This provision has not often been the subject of judicial consideration, despite its place in the Act since 1975. However, in Stanford v Stanford (2012) 247 CLR 108 at [27], [35] - [46], the plurality of the High Court considered how section 79 may have "an operation that is entirely consistent with s 43(1)". I note, perhaps unsurprisingly, there is no equivalent provision in respect of de facto relationships; however, certain of those indicia might be said to exist within the definition thereof in section 4AA.

24. In my view, that the parties' marriage was, and was regarded by them as, a partnership was effectively conceded by the husband in cross-examination. He agreed that he loved the wife for who she was and that she loved him for who he was. He agreed that they "made a joint commitment to each other… better, worse, richer, poorer, in 2014". He agreed that he supported her in her career as a health professional and that she supported him in his pursuits, whether they were through C Group or other work. He agreed that it would be trite to focus on the details; for example, whether or not they hosted parties for his colleagues. He agreed that even though they did not host functions for her colleagues, that did not impact his support of the wife in her employment as a health professional. The husband agreed that, by their marriage, they made a joint commitment to each other.

25. Notwithstanding the approach of the parties, I do not propose to, nor should I, consider the minutiae of the parties' respective section 79(4)(a), (b) and (c) contributions. In Hoffman and Hoffman (2014) FLC 93-591 at [61], albeit in the context of a much longer marriage, the Full Court said:

    … In the context of the case such as the present one, the duration of the marriage has an important influence upon what evidence is relevant in respect of contributions.  There is no need to conduct a minute forensic examination of the details of contributions over many years with each party extolling their own efforts and attempting to diminish the other's.

26. Whilst this case involves a shorter period of cohabitation, with younger parties and no children, nevertheless, that statement by the Full Court, regarding minute forensic examination of the details of contributions, with each party extolling their own efforts and attempting to diminish those of the other, is apposite. Indeed, Senior Counsel for the husband conceded (and Senior Counsel for wife did not disagree) that "every nook and cranny doesn't have to be examined".

27. Notwithstanding subsequent criticism of the decision of the Full Court in Ferraro and Ferraro (1993) FLC 92-335 and overruling of the jurisprudential heresy of so-called ‘special skills or ‘special contributions’ (for example, in Hoffman and Hoffman), consigning it to the judicial dustbin, the following passages (at 79,571 - 79,572) remain good law, in my view. In relation to the statement by Wilson J in Mallett v Mallett (1984) 156 CLR 605 at 636 that "equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal", the Full Court in Ferraro said:

    Depending upon what is meant by the term "other things being equal'', that statement is frequently cited, as it was in this case, as support for the proposition that the different contributions of the parties will be treated as equal if the "quality" of their respective contributions are equal. That suggests that an evaluation of the quality of performance within the parties' respective roles must be performed by the Court and then a comparison made in order to arrive at a conclusion as to where the balance lies in relation to their contributions under paras (a) to (c) and as to the distribution of their property.

    There has been surprisingly little discussion in subsequent cases of the implications of this view. There has been little more than a repetition of the statement that the homemaker contribution "should be recognised not in a token way but in a substantial way". One of the few detailed discussions of the implications of that passage is in the judgment of Nygh, J at first instance in the matter of Shewring (1987) 12 Fam LR 139 at 141, which is the report of the judgment of the Full Court (Evatt CJ, Ellis and Lambert, JJ). Page 141 contains the following passage from the judgment of Nygh, J at first instance where he discusses the implications of the formulation of Wilson, J in Mallett's case in the following terms:

    "What was an issue in this case was the question of quality of contribution. I am aware very much of the remarks made by Wilson, J in Mallett v Mallett (1984) 9 Fam LR 449 at 470, and, in fact, on the basis of that remark it has been suggested from time to time that the court must assess in some way or another the quality of contribution made by a party, for instance as breadwinner on the one hand and as homemaker on the other, on a scale which presumably ranks from the perfect to a total failure. I myself cannot accept that anything like that was ever in Sir Ronald's mind. It is not, I think, the function of this court. It has never done so and I trust will never do so in the future, to assess the quality of each party on a scoring board which, so far as breadwinners are concerned, would give top marks to the Holmes a Court's of this world and bottom mark to the unemployed roustabout and, I suppose, in the homemaker and parenting stakes would give top marks to those ladies who in the age of the great dictators would have received the glorious motherhood medal, and bottom marks to those ladies, who it is alleged spend most of their time in the tennis club and the coffee klatsch and waste their precious time in idle pleasure. I take the view based upon the traditional marriage vows that the parties take one another for better and for worse.

    The assessment of the quality of the contribution should be based on the principle that each party should make such contribution as can be reasonably expected having regard to the nature of the parties' capacity, the ability of each of the parties and expectations of the spouses.

    If one assesses the contribution of the parties in that light, that is to say, in other words one gets what one expects then what Mrs Shewring got upon her marriage was a person who certainly could not claim to be the world's perfect handyman, and no claim to be the potential prize winner of the Herald gardening competition. At the same time, Mrs Shewring herself admitted she was not a keen gardener either. In other words, the expectations of the parties were at a much lower level than that and having regard to the expectations of the parties it is my view that each of the parties contributed to the best of his and her ability and according to his and her expectation."

    The Full Court considered that the appeal in that case should succeed on other grounds and that it was "unnecessary to deal with that aspect".

    In that passage Nygh, J makes, in our view, a valid criticism of any suggestion that in each case there must be a detailed analysis of the quality of performance of the roles of the parties. …

1. See also Hoffman and Hoffman at [51].

2. Save for the issue of the C Group shares, which I consider below, in my view there would be little to differentiate the parties' respective contributions, viewed globally, within the prism of the partnership of their marriage, and the weight to be accorded to them. But for the issue of the C Group shares, I would have assessed the parties' contributions as being equal. They each gave their best in all aspects of their relationship.

3. As the Full Court in Roverati and Roverati [2021] FamCAFC 89 at [33] restated (citing Dickons & Dickons (2012) 50 FamLR 244 at [23]-[26]:

   the assessment of contributions is not a mathematical or accounting exercise, and even more importantly, it is an holistic undertaking with all of the contributions of the parties of whatsoever nature being taken into account.

4. However, in the circumstances of this case, clearly, the gravamen thereof is the contribution by the husband, by reason of his employment, of the shares, first in C8 Pty Ltd and subsequently in C Group. As I have already found, there is little else that distinguishes the parties' contributions. Do the C Group shares change anything? I am acutely conscious that the contribution by the husband of those shares is but one contribution, to be balanced and weighed holistically against all of the other section 79(4)(a), (b) and (c) contributions made by the parties over their marriage. To isolate that particular contribution, albeit that the husband unsurprisingly focuses upon it, would be contrary to authority and erroneous. Such an approach has consistently been cautioned against by the Full Court in recent decisions. See, for example, Hurst and Hurst (2018) FLC 93-851, Jabour & Jabour (2019) FLC 93-898 and Barnell and Barnell (2020) FLC 93-961. Nevertheless, given that I find it is the only possible distinction between the parties’ contributions, it must be carefully considered within my global assessment of the parties’ contributions.

5. The acquisition of those shares was an incident of the husband's employment with C Group and, accordingly, I find they are a financial contribution made directly by him, within the purview of section 79(4)(a) of the Act. However, that is only to state the obvious. Further, that is not to say that the wife has not also made some indirect contribution thereto; she has, for reasons canvassed below. The issue I must determine is the weight to be accorded to the parties' contributions globally, taking into account, inter alia, those particular contributions. Do the parties' contributions, including in respect of the C Group shares, warrant an adjustment of 75 per cent in the husband's favour, such that he receives three times that which he proposes the wife receive?

6. The husband obtained his employment at C Group, and the initial shareholding in C8 Pty Ltd and related vendor finance, in part through his father's acquaintance with and introduction to Mr G, as well as through their own football interests. The wife conceded in cross-examination that the husband was approached by Mr G to see if he wanted to join him in his commercial undertakings. Further, she conceded that the connection between the husband and Mr G was made because Mr G was known to the husband and his father. The husband deposes, and the wife does not deny, that she had never previously met or had discussions with Mr G about his possible employment with C Group. However, to my mind, nothing turns on this because the husband acknowledges that, "as my partner, I did speak to the wife about a new job opportunity at [C Group]". It is difficult to conceive what else she could have done in this regard, other than be available to speak with and be supportive of him about a new, and undoubtedly exciting, new job opportunity.

7. Vendor finance was required for the initial C8 Pty Ltd share acquisition, which formed part of his remuneration package with C Group. Subsequently, in 2016, the C Group shares which were acquired in place thereof were initially worth $1.3 million but a sum in that order was owing to C Group in respect of their acquisition; in other words, there was no equity in them. Further, remuneration that would otherwise have been available to the parties in 2016-2017, by way of dividends, was applied to reduce the debt associated with those shares from $1.3 million to about $913,000. This fact is blithely overlooked by the husband when he deposes:

   I did not need to pay any money towards getting a [sic] equity interest in [C8 Pty Ltd]. It was part of my remuneration package with C Group.

8. It is uncontroversial that J Pty Ltd was incorporated and appointed trustee of the Trust because Mr G required the C Group shares to be held or controlled by a person involved with that company, which the wife was not. It is not clear why this could not have been effected through Wallace Group but nothing seems to turn on this. In any event, this was facilitated by the wife, who resigned as trustee of the Trust.

9. The wife's evidence is that the parties were "jointly offered the opportunity" to buy the shares. That is supported by the husband's concession in the agreed joint chronology that it was the parties who bought the shares. However, it was an opportunity available to the parties, by reason or as an incident of his employment, from which the parties jointly benefited and will, hereafter, do so severally.

10. The value of those shares was initially $1,300,000. By late 2017, nearly three years prior to separation, the C Group was reduced from $1,300,000 to $913,000 by reason of dividends paid hitherto. Whilst the husband deposes that future dividends thereafter derived from the C Group shareholding would also be applied in reduction of the vendor-financed C Group Loan, that does not appear to have occurred, given the static nature of the balance of the loan since the company was listed in late 2017. It was then and is now in the sum of approximately $913,000.

11. In relation to the reduction of the C Group loan from $1,300,000 to its current balance of $913,000, which occurred during the marriage, the husband conceded, in cross-examination, that instead of receiving income for the household by way of dividends that could otherwise have been used by the wife and him, the dividends were used to reduce that debt.

12. The C Group Loan was subject to the husband's continued employment and the continued C Group shareholding. If the husband ceased employment with C Group or the shares were sold, the loan would become immediately due and owing. Whilst it has not been called up, presumably by reason of the husband's continued employment, it has been deducted in the calculation of the asset pool, so, in my view, little turns on that. Further, I accept the wife's case that that the loan was a substantial risk for the parties to undertake, in circumstances where their only other assets were very modest by comparison. Had the float not been a success, the loan would nevertheless have needed to be repaid and, at least initially, would have outstripped their assets. So much was conceded by the husband in cross-examination:

    [COUNSEL FOR THE WIFE]: And as far as that debt is concerned, if we just refer back to the loan agreement for a moment, you accept that the loan agreement was as between [C Group], the[ J Pty Ltd] …

    [THE HUSBAND]: Yes.

    [COUNSEL FOR THE WIFE]: … as trustee for the [Wallace] Family Trust?

    [THE HUSBAND]: Correct.

    [COUNSEL FOR THE WIFE]: But then you also were a guarantor for that loan?

    [COUNSEL FOR THE WIFE]: So if things went badly, you personally …would have been personally liable?

    [THE HUSBAND]: Correct.

    …

    [COUNSEL FOR THE WIFE]: And that would have impacted the family, of course, as well. If you look at the inverse, assume that the listing didn't go well…

    [THE HUSBAND]: Yes.

    [COUNSEL FOR THE WIFE]: … and the company had to call in its debts, that's something you and [Ms Wallace] would have to have paid?

    …

    [THE HUSBAND]: Yes.

    [COUNSEL FOR THE WIFE]: So the debt of 900-odd thousand? … that you guaranteed … or whatever it was at that point in time, would have to have been repaid if the float for the [C Group] didn't go well. You agree with that proposition?

    [THE HUSBAND]: Correct. Yes.

    …

    [COUNSEL FOR THE WIFE]: And that would have to have been paid by you and [Ms Wallace] as a household, wouldn't it, as a family?

    [THE HUSBAND]: It would have been being paid, yes, out - out of whatever money we had at the time.

13. Hence, the husband's denial that it was a loan to the wife and him and his assertion that, rather, it was a loan expressly to him is of little, if any, relevance. In circumstances where the husband rightly concedes that, had the C Group Loan been called up, resort would necessarily have been had to the parties' other assets, his claim now to 75 per cent of the net assets, the value of which is overwhelmingly comprised of the C Group shares, does not give due recognition (inter alia) to that concession and to the wife's corresponding contribution by reason thereof.

14. The initial shareholding in C Group has increased from 3,800,000 shares in October 2017, to 3,980,516 shares as at the date of trial. The increase is largely referrable to performance rights which have vested in that time, as well as to the recent equity raise, in which the husband acquired an additional 107,526 shares, funded by a loan from the National Australia Bank and secured over 1,450,000 shares. Insofar as the balance of the increase in the C Group shareholding is concerned, the husband's unchallenged evidence is that between early 2020 (the relevance of which date is not apparent) and mid-2020, the number of C Group shares held was 3,827,213.

15. The husband asserts that, since separation, he has worked long and hard to raise C Group's profile, leading the company's expansion nationally and internationally, as well into the government sector, undertaking bushfire, storm and flood recovery work. I accept that he has worked assiduously in his roles with C Group, culminating recently in that of Australian senior manager at present. However, he was employed and remunerated to do that. In cross-examination, Mr G agreed that part of the husband's job description is helping develop C Group, talking to investors, looking for opportunities and helping to improve parts of the business that are not as successful.

16. An affidavit of Mr G was filed on behalf of the husband. The husband's solicitor, in whose presence Mr G signed the affidavit, did not take care to indicate whether the truth of its contents was sworn or affirmed by him. She should have done so. However, for present purposes, nothing turns on this omission; the truth of its contents was adopted by him at the commencement of his evidence. The contents of that affidavit, which was not the subject of objection on behalf of the wife, are unremarkable, save for the final paragraph. In summary, Mr G deposes to the circumstances in which the husband was first employed by C Group, his hard work as an employee, the acquisition of the C8 Pty Ltd shares and subsequently the publicly listed C Group shares, the loans which enabled the acquisition of those shares and his progression through C Group. None of that is in contention. However, in the final paragraph of his affidavit, Mr G deposed:

    It is my firm belief that the increase in the share value of [C Group] is attributable to the respondent's instrumental role in growing the business. But for his dedication and hard work, the share price would not have increased as much and as fast as it did.

17. Senior Counsel for the husband urged me to place great weight on this evidence. She submitted that I could and should do so, in circumstances where it was not the subject of objection by the wife. I disagree.

18. Section 76(1) of the Evidence Act 1995 (Cth) provides that "evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed".

19. It was not suggested on behalf of the husband that section 78 of the Evidence Act has any application.

20. Section 79(1) of the Evidence Act provides:

    If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

21. That provision refers to "specialised knowledge". There is simply no evidence whatsoever to suggest that Mr G has any specialised knowledge whatsoever, whether based on training, study or experience. In his affidavit, he merely describes himself as, and deposes that he is, chief executive officer and major shareholder of C Group. Further, even if Mr G had such knowledge, there is no evidence whatsoever as to the basis thereof. Lastly, there is no evidence whatsoever to suggest that Mr G's opinion is "wholly or substantially" based on any specialised knowledge. In Harrington-Smith v Western Australia (No 7) (2003) 130 FCR 424, at [19], Lindgren J observed that -

    lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal test of admissibility are addressed.

    See also Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] per Heydon JA.

22. Notwithstanding the absence of objection by Senior Counsel for the wife, paragraph 11 of Mr G's affidavit, as drawn, is so vague as to be of no assistance at all to the Court. Even if Mr G were qualified, and demonstrably so, to proffer the opinion in paragraph 11 of his affidavit, he does not opine that the increase in the share value of C Group is, in part, attributable to the husband's role in growing the business; rather, he opines uncategorically (and accordingly, in view, untenably) that the increase in the share value "is attributable" to the husband's role (emphasis added). This is reinforced by his (similarly unqualified) opinion that, "[b]ut for his dedication and hard work, the share price would not have increased as much and as fast as it did" (emphasis added). That simply cannot be a binary issue, especially insofar as publicly listed shares are concerned. I raised this issue several times with Senior Counsel for the husband. Whilst her instructions were to the contrary, not surprisingly, she could not explain how this could not be so.

23. It is not even a matter of judicial notice. It is inherent in the nature of publicly listed shares that their value is determined by the public, on the stock exchange. However, if I be wrong, section 144 of the Evidence Act provides:

    (1)Proof is not required about knowledge that is not reasonably open to question and is:

    (a)common knowledge in the locality in which the proceeding is being held or generally; or

    (b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.

    (2)The judge may acquire knowledge of that kind in any way the judge thinks fit.

    (3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

    (4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

24. The "knowledge" to which section 144(1) applies must be knowledge that is not reasonably open to question and is common knowledge in the place in which the proceeding is being held or generally.

25. In National Trustees Executors & Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1, it was held that judicial notice could be (and was taken) of the occurrence of an acute financial crisis in Australia in 1931 (namely, the Great Depression), coupled with a fall in land values and an inability to borrow on the security of land. Starke J said (at 27):

    A financial crisis of extraordinary severity had developed and was so critical that the Governments of Australia had been compelled to intervene in order to restore solvency and avoid default. Land values had fallen, and, despite the statements of some valuers who gave evidence, the land was practically unsaleable. So, too, it was almost hopeless to borrow money on the security of lands. All these facts are matters of common and public knowledge and hardly require proof.

    See also McGregor v McGregor (2012) FLC 93-507 (Full Court).

26. So too, I am of the opinion that it is not reasonably open to question and that it is common knowledge generally that increases (and, indeed, decreases) in the price of publicly listed shares, determined by the public on the stock exchange, may be attributable to a range of factors. Indeed, as I explain below, this was conceded by, inter alia, Mr G and the husband in a different forum, namely the 2021 C Group. Accordingly, it is, with respect, nonsensical for Mr G to assert that the increase in the share value of C Group “is” solely attributable to the husband's role, instrumental or otherwise, in growing the business and that, “[b]ut for his dedication and hard work, the share price would not have increased as much and as fast as it did” (emphasis added). If necessary, I am satisfied that, by reason of the point being raised by me with Senior Counsel for the husband, she was given an opportunity to make submissions, and to refer to relevant information, relating to this issue to ensure that he was not unfairly prejudiced. There was, for example, the following exchange between Senior Counsel for the husband and me:

    HIS HONOUR: Ms Smallwood, there are market forces at play in this too, aren't there?

    …

    HIS HONOUR: Well, … you've taken the wife - and I've made note of how the equity increased, and that it reached a value of some $3.8 million, which was then converted into publicly listed shares. We now…

    [COUNSEL FOR THE HUSBAND]: Sure. And we've got the affidavit of [Mr G], who…

    HIS HONOUR: Yes. We now have … in excess of $34 million.

    [COUNSEL FOR THE HUSBAND]: Yes.

    HIS HONOUR: Is your client's case that he is solely responsible for that increase in - by about $30 million?

    [COUNSEL FOR THE HUSBAND]: He is not solely responsible for it, in that [Mr G] and the other members of the team are. But he says that the wife was not responsible for that …and did not contribute to that.

    HIS HONOUR: But if he's not responsible, and others are…

    [COUNSEL FOR THE HUSBAND]: No, he's with others.

    HIS HONOUR: No, I understand that. But if he's not solely responsible for the $30 million increase

    [COUNSEL FOR THE HUSBAND]: He's solely responsible within this couple.

    HIS HONOUR: Yes…

    [COUNSEL FOR THE HUSBAND]: [Mr G] is not a - not a party.

    HIS HONOUR: Is there not an element of windfall, Ms Smallwood?

    [COUNSEL FOR THE HUSBAND]: Well, I would say there wasn't, your Honour, and that would be - the element of windfall would be completely improperly, in my submission, to ignore my client's endeavours and work, because      

    HIS HONOUR: No. No, because it's not a binary exercise. I'm certainly not putting it that way. But is there not an element of windfall in this?

    [COUNSEL FOR THE HUSBAND]: I would say no. No, because this business has grown enormously. They've made purchases, they purchased - my client spent nine months - and you will hear all about this, if you haven't already - spent nine months, I think, in 2020 procuring the - a large, $230 million purchase in [City WW]…

    …

    That he was very, very involved in that. Very, very front line in that, if I can use that word. I can't think of the right word to use right now. That was his contribution. It's after, effectively after separation. And the shares, we know, went up - jumped considerably after that particular event. And I will be relying, your Honour, on the affidavit of [Mr G] and his comments with respect to - his evidence with respect to my client's - particularly paragraph 11 of his affidavit, in which he says that my client was - was:

    …the increase in share value is attributable to the respondent's -

    my client's -

    instrumental role in growing the business. But for his dedication and hard work, the share price would not have increased as much and as fast as it did. 

    So that's how I'm putting it.

1. At [84] - [85], the Full Court said:

   Finally, in relation to a sudden increase in the value of an asset unrelated to the efforts of the parties, such as a rezoning by the council or a lottery win, the authorities point to that increase being a contribution by both parties (or neither - it matters not which it is) (Zappacosta at 75,421; Wells at 76,529-76,530; Zyk at 82,515-82,516; and Hurst at [26]).

   It is difficult to see adequate recognition of this principle in the reasons. Indeed, the husband appears to have been given credit for the serendipitous revaluation of Property A by her Honour's recognition of the husband's contribution by having regard to its value at the time of the hearing, rather than it being merely the springboard for its later value.

2. At [137], the Full Court further said:

   The reason that there is significant property to be divided is that Property A was fortuitously rezoned which caused its value to skyrocket.  As we have explained, this increase in value does not favour one party over the other.  Thus although the property was introduced by the husband it was merely the springboard for the events which followed and relevantly the revaluation.

3. I am conscious of the error into which the trial judge in Jabour was found by the Full Court to have fallen, namely, quarantining the particular real property (referred to as "Property A") from the myriad of other contributions made by both parties throughout the course of that relationship. In that case, unlike in the present case, the parties had cohabited for nearly a quarter of a decade, in the course of which they had three children. In isolating those other contributions from, and weighing them against, the contribution of Property A, rather than it being but one of the myriad of contributions taken into account, the primary judge was held to have fallen into appealable error. The difference in this case is that, by reason of the substantially shorter period of cohabitation and the absence of any children, the parties' other contributions are narrower in scope and the husband's contribution of the C Group shares looms larger in my consideration of the assessment of the parties' contributions globally. However, that does not mean that the husband's contributions should, necessarily or at all, be given greater weight than those of the wife in this case, or than those of the husband in Jabour.

4. In Waters & Jurek, Fogarty J said (at 82,379) that, when a marriage ends:

   In some cases, an adjustment is called for because it would be unjust for the roles and activities of a party, which were recognized until separation, and which largely determined or influenced the personal development of that party and the arrangements between the parties, to suddenly count for little, while those of the other party, which were of equal significance during the marriage, to now have a far greater financial impact outside the home - in circumstances where it was the joint decision of the parties that that be the way in which they would conduct their affairs, and where that decision was made in the expectation of the relationship continuing.

5. In the present case, I have already acknowledged that the shares were contributed by the husband as an incident of his employment with C Group, which he obtained by reason of his and his father's association with Mr G. However, at the time of their acquisition, they had no equity. The increase in the value of these publicly listed shares has been a windfall, in respect of which I find that it would not be just and equitable for the husband to benefit over the wife. Although, the associated C Group Loan has not been required to be repaid to date, because the husband has continued to be employed by C Group, that loan has been deducted in the calculation of the net asset pool. Therefore, nothing turns, in that regard, on his continued employment. Further, that he has been successful in that employment is manifest from his rise through the ranks of the company; however, he has enjoyed a commensurate increase in remuneration.

6. The shares, upon acquisition, were registered in the name of the Trust of which the parties were and remain the named beneficiaries in the Trust deed. It is agreed that, effectively, it was the parties who bought them. The husband's evidence was that, if necessary, the C Group loan with which the shares were acquired would have been repaid from their joint assets. Without more, he should not be able, in retrospect, to approbate and reprobate, seeking that he now receive 75 per cent of the parties' net assets when he says that the debt referable to the acquisition of those shares would have been borne jointly by them during the marriage. 

7. In Dickons & Dickons, the plurality of the Full Court said at [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) 24 Fam LR 377;(1998) FLC 92-844; [1998] FamCA 74) 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.

8. The plurality further said at [20] - [21]:

   Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that "trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment". (In the Marriage of Aleksovski (1996) 20 Fam LR 894 at 903; (1996) FLC 92-705 at 83,437). In Aleksovski, Kay J outlined the well-known "gold bar" analogy and said "[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship" (at 83,443).

   Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-1 "where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property" or is it, for example, a union where parties lived very separate domestic and financial lives?

9. Lastly, in that case, the plurality said at [24] - [26]:

   There can be little doubt that the classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions", can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions.

   However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

   Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without "giving overzealous attention to the ascertainment of the parties' contributions" (Norbis v Norbis (1986) 161 CLR 513 at 524; 65 ALR 12 at 18; 10 Fam LR 819 at 825; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.

   The necessarily imprecise "wide discretion" inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.

10. In Figgins & Figgins (at [57] - [58]), Nicholson and Buckley CJ said, albeit in the context of the now discredited doctrine of ‘special contributions’, in relation to a substantial inheritance received very shortly after the commencement of a six year marriage:

    We are troubled that in the absence of specific legislative direction, courts consider they should make subjective assessments of whether the quality of a party's contributions was 'outstanding'. It is almost impossible to determine questions such as: Was he a good businessman/artist/surgeon or just lucky? Was she a good cook/housekeeper/entertainer or just an attractive personality? We think it invidious for a judge to in effect give 'marks' to a wife or husband during a marriage. … Indeed, in a strictly financial sense, the inheritance was something of a windfall, since it arose as the result of the premature and accidental death of the husband's father and stepmother.

    (Emphasis added)

11. In Hoffman and Hoffman at [61], the Full Court agreed with O'Ryan J in D and D [2005] FamCA 1462 at [271] that “the notion of special contribution has all been a terrible mistake”. I respectfully fully agree with (and, in any event, am bound by) that dictum.

12. Counsel for the wife did not seek to place any reliance upon the letter from M Consulting to the parties dated late 2020 or the draft Financial Agreement in early 2021, notwithstanding that they were put into evidence by her, nor was the husband cross-examined in relation thereto. Whilst that which the parties may have once thought to be a just and equitable division between them of their assets in no way binds me, it is not irrelevant either in my opinion and is consistent with the decision of the High Court in Stanford & Stanford. It can and, for the reasons which follow, in the circumstances, does inform my decision. It forms part of the evidence before me. Insofar as the husband deposes, in relation to the parties' attendance upon M Consulting, that he disagrees the wife and he “discussed that there be an equal division of the share portfolio, especially the [C Group] shares”, that is difficult to reconcile with the contents of the M Consulting letter and the draft Financial Agreement and with the fact that he provided the wife with a copy of the draft Financial Agreement, prepared by his solicitor, which directly contradict that denial. I do not accept the husband's denial that, when the wife and he attended upon M Consulting, they discussed an equal division of, inter alia, the M Consulting shares. Further, there is no suggestion that the draft agreement was inadvertently provided by him to her or on a ‘without prejudice’ basis.

13. In closing submissions, Senior Counsel for the husband submitted that his opening position, namely, that the wife receive 15 per cent, was calculated taking into account the fact (so it was submitted) that under the draft, unexecuted Financial Agreement, she was to receive approximately 50 per cent of the value of the C Group shares in about early 2021. The difficulty with that submission is that the husband did not give any evidence to that effect. Even if he had, it would have been of no assistance. It is well settled that I must take the asset pool as I find its composition and value to be as at the date of trial.

14. Whilst in no way binding upon me howsoever, I nevertheless find the fact that between late 2020 and mid-2021, the husband, including whilst legally represented, was prepared to divide the parties’ property, including the C Group shares, equally between the wife and him, to be relevant in my assessment of the parties’ contributions and making a just and equitable order. He gave no evidence of the reason for his volte face in reducing the wife's share from approximately 50 per cent to 15 per cent or then to 25 per cent. His Senior Counsel's attempted explanation therefor is unsupported by any evidence and is, at best, inferential. In particular, he was prepared between about late 2020 and mid-2021 to divide the C Group shares approximately equally between the wife and him, where they were valued (at the end of that period) at about $12,600,000. However, now that they are valued at about $35,000,000, he contends she should only receive 25 per cent thereof (and, until the luncheon adjournment on the first day of trial, as little as 15 per cent thereof). For the reasons previously expressed, on the evidence, I find the increase in the value of those shares to be overwhelmingly a windfall. I therefore take into account the husband's concession of equality between about late 2020 and mid-2021 as evidence of what he considered to be a just and equitable alteration of interests in property; see Woodcock v Woodcock (1997) FLC 92-739.

15. I also note that, whilst the husband proposes the wife receive only 25 per cent of the non-superannuation assets, he concedes that the parties’ superannuation entitlements should be equally divided between them. Senior Counsel for the wife submitted that the only explanation for that discrepancy is the quantum of the non-superannuation property, as opposed to the parties’ modest superannuation entitlements, and the dramatic increase in value that occurred with respect to the C Group shares. He submitted that there is no reason, consistent with principal or authority, for that to matter. I agree. No other reason was proffered by Senior Counsel for the husband. In circumstances where the husband concedes that the parties’ superannuation entitlements, which were accrued over the course of cohabitation and thereafter, should be divided equally, it must follow, in the absence of any other explanation, that he concedes the parties' contributions thereto were equal. For the same reason, to my mind, it must follow that the difference between his position in relation to the division of superannuation and non-superannuation property is referable to the differential between the values thereof. How it is that the husband concedes the wife has contributed equally to superannuation but only half as much to the other assets, derived overwhelmingly from a windfall, eludes me. However, as it is common ground between the parties that superannuation should be divided equally, I will not disturb that and will make an order to that effect, notwithstanding my assessment hereafter of the parties’ contributions to the non-superannuation assets.

16. How then to assess all of the parties' contributions, to which I have referred above, in quantitative terms? In an oft cited passage from Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], Coleman J said:

    Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures.  That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case …

17. Accordingly, I now leap from words to figures. Taking into account the parties’ contributions globally, as found by me above, I assess them to be 52.5 per cent on the part of the husband and 47.5 per cent on the part of the wife. Lest the parties wonder why I have resorted to halves of a percentage point in my assessment of their respective contributions, by assessing them as I have, the husband will thereby receive five per cent more than the wife. I am satisfied that gives proper weight to what I ultimately find to be his slightly greater contributions overall by reason of his employment with C Group, obtained initially through his father's and his connections which enabled the acquisition of the C8 Pty Ltd shares and then the C Group shares which have produced the windfall, together with (and subject to) the associated vendor’s finance. I also take into account that, since separation, the C Group shareholding has modestly increased by 153,303 shares, from 3,827,213 shares to 3,980, 516. Further, whilst the proverbial egg cannot be unscrambled, C Group has gone from strength to strength in the period since separation, under the stewardship of its management team, of which the husband has been and is a member. This does not detract from my finding that the increase in the value of the C Group shares, from a position of no equity therein at the time of their acquisition in 2016 to approximately $35,000,00 (less the C Group loan) at the date of trial, was overwhelmingly a windfall to both of them. I wholly reject the submission on behalf of the husband that his contributions should be assessed as being threefold those of the wife or anywhere near thereto. Whilst in no way conflating the provisions of sections 79(2) and 79(4)(a)-(c), the parties’ contributions must be assessed within the context of their marital partnership and as part of the means to an end, namely, an order under section 79(1) which is just and equitable in all the circumstances, as required by sub-section (2) I am satisfied that a contribution-based assessment of 47.5 per cent to the wife and 52.5 per cent to the husband, in respect of their non-superannuation assets achieves that. Indeed, albeit for the reasons above, that is 2.5 per cent less than the parties agreed should be the case, which was their position between late 2020 and mid-2021. Nevertheless, I am in no way bound by that informal agreement, although it has informed the exercise of my discretion, for the reasons above.

    Sections 79(4)(e) and 75(2)

18. Neither party vigorously agitated an adjustment pursuant to section 79(4)(e) of the Act, on account of section 75(2) factors.

19. In the case of the wife, in her Outline of Case document, whilst rightly conceding that both parties are young and gainfully employed, it is asserted, in summary that:

    ·the husband earns approximately five to six times more than the wife and, given the success of his employment, it is likely this earning disparity will continue to grow;

    ·the wife has a limited earning capacity as a health professional and will not have the same commercial opportunities available to her that are currently available to the husband;

    ·the husband will retain the K Pty Ltd share trading account, which provides him with both income and the ability to continue to grow his property base; and

    ·she does not seek any adjustment “assuming a 50% assessment on contributions”.

    Further, the husband has the financial resource of the performance rights.

20. Similarly, in closing submissions, her Senior Counsel submitted that if -

    after the contributions assessment, contrary to our primary contention, you arrive at a circumstance where there is a significant disparity in the property after the contributions assessment and financial resources of each of the parties, then you would consider whether a further adjustment is made in order to make an order which is in all the circumstances just and equitable.

1. Whilst I acknowledge, in isolation, the existence of the matters to which the wife points, all of which fall under section 75(2)(b), they must be looked at in the broader context of the case. Indeed, that paragraph requires me to take into account, inter alia, the property of the parties. By reason of my assessment of the parties' contributions pursuant to section 79(4)(a)-(c), the wife will receive or retain assets to the order of approximately $16.5 million (including superannuation) and the husband will receive or retain assets to the order of approximately $18.2 million (including superannuation). The wife is still young. She is a qualified professional with an annual income in the order of $115,000 (inclusive of superannuation). She will, by reason of the agreed equal division of superannuation, have entitlements in the order of $177,000. She does not have the care or control of any children. She does not have the duty or responsibility to support any other person. Simply to make a further adjustment under section 79(4)(e), on account of section 75(2) factors, because I have not assessed the wife's contribution-based entitlement at 50 per cent would not be an adjustment founded in principle. Rather, it would fall foul of the warning by Nygh J, in W and W (1980) FLC 90-872, not to effect ‘palm tree justice’. However, I find that is effectively what the wife invites me to do, but which I cannot and will not do.

2. Senior Counsel for the wife did not address the magnitude of the “significant disparity” which would, in his submission, warrant an adjustment under section 79(4)(e) on account of section 75(2) factors.

3. In the husband's Summary of Argument, filed together with his Outline of Case document, no adjustment is sought. However, during the course of the trial, it became apparent that, within his proposal that the wife should only receive an overall 25 per cent of the non-superannuation assets, he faintly relied upon section 75(2)(o) of the Act, namely, a fact or circumstance which, it is asserted, the justice of the case requires to be taken into account. One of the reasons why, inter alia, he contended the wife should only receive 25 per cent of, in particular, the publicly listed C Group shares was because of a possible adverse effect on the market of a substantial disposition by him of such shares. However, at no stage did counsel for the husband make any submission as to what percentage of that proposed quarter share should be referrable to this issue.

4. By consent, and with my leave, the parties jointly tendered a report by Mr EE, a jointly appointed single expert. The report was dated 28 March 2022, being the first day of trial. It was agreed that, if Mr EE were called to give evidence, he would adopt the report in the witness box. His curriculum vitae was annexed to his report. In circumstances where the report was jointly tendered by, and Mr EE's expertise was common ground between, the parties, I accept it. However, as it transpired, little reliance was ultimately placed upon the report by either party and Mr EE was not required for cross-examination.

5. Mr EE was instructed:

   to undertake a valuation of the shares in []C Group … held in a [K Pty Ltd Share Portfolio] account in the name of [J Pty Ltd] as Trustee for the [Wallace] Family Trust … to the extent that the face value of the shares may be impacted if up to 50% of the shareholding … was transferred to the Wife, noting that the Husband is the Australian [manager] of the company.

6. In respect of a single step scenario, comprising a transfer of the C Group share parcel from the Trust to the wife, which is what is envisaged by the orders proposed by each party (such that I do not need to consider the two step scenario), Mr EE opines that “the disclosure of the Transfer of the C Group is likely to cause an adverse share price reaction in the range of -3% to -5%”. Further, Mr EE opines, inter alia, that:

   a)The low end of the range might be observed if the disclosure of the Transfer to the market generally (via a Change in Director's Interest notice) and specifically with institutional shareholders one-on-one, is implemented with skill and transparency;

   b)The high end of the range might be observed if the disclosure to the market is poorly handled and the timing coincides with company specific or general market weakness i.e. the disclosure is used by investors as an excuse to sell; …

7. At paragraph [22] of his report, Mr EE states:

   It is assumed that the Company, on the half of the Husband (in his capacity as an Executive Director of the Company), will promptly lodged with the ASX the Appendix 3Y 'Change of Director's Interest Notice' setting out the relevant details of the change in the shares of the Company.

8. At paragraph [23] of his report, Mr EE opines that “market participants in receipt of the disclosure of the Transfer, will weigh a number of largely subjective factors in assessing whether the disclosure of the Transfer will have an adverse or neutral impact on the Company share price”.

9. At parts 4.2 and 4.3 of his report, Mr EE discusses the factors likely indicating an adverse or neutral impact on the C Group share price.  In relation to the latter, Mr EE states at paragraph [44] of his report:

   I am not aware of any mandatory requirement to provide additional detail in conjunction with disclosure of a Change in Director's Interest. However, in my opinion, additional detail regarding the circumstances of the assumed Transfer provides an opportunity to 'manage the message' and potentially mitigate any adverse share price movement. For example:

   a)   If true, confirming the Transfer relates to a private marital matter and was not voluntarily undertaken by the Husband for any other reason; and

   b)   If true, confirming that previously provided Company profit guidance remains valid.

10. Mr EE concludes in this regard, at paragraph [46], that in his opinion “professionally managed communication of the disclosure of the Transfer might cause a less sceptical third-party investor to react with moderation, if at all”. Further, whilst Mr EE considers a transfer of 50 per cent of the C Group shares to the wife to be “undoubtedly material” and to “significantly” weaken the alignment of the interests of the husband with those of third-party investors, he nevertheless opines that “a less sceptical third-party investor might focus on the remaining shareholding of the Husband in the future prospect of increasing alignment of interest as performance rights vest over time and react with moderation, if at all” (paragraphs [47]-[49]).

11. The husband was cross-examined about eight Appendix 3Y Change of Director's Interest Notices. Of those notices, six related to directors of C Group, namely the husband (1), Mr DD (1), Mr XX (1) and Mr G (3), all in the period between early 2019 and early 2022. The other two related to directors of the H Group (late 2020) and Y Ltd (early 2020). Both of the latter notices were expressed to be by reason of matrimonial property settlements. Further, the husband was also cross-examined about a Form 604 Notice of change of interests of substantial shareholder in C Group, namely Mr G in late 2021.

12. In respect of a Change of Director's Interest Notice by reason of a matrimonial property settlement, the husband conceded in cross-examination that he would have no difficulty with same if it would assist in managing the share price or the reception of him divesting himself of shareholdings. He acknowledged that “the only way this is going to become settled is if there is a transaction of shares, absolutely. So the management of that communication has to occur”. He also acknowledged that, as far as the management of the communications is concerned, he personally did not have an issue with C Group preparing or providing a press release and some commentary in relation to the transfer of shares by him to the wife “because it's how you have to manage the communication”, adding “I think it's the only way to communicate it”. He made it clear, however, and understandably so, that ultimately any such communications would require board approval.

13. In respect of the Appendix 3Y by Mr DD dated 8 April 2021, the husband conceded that, since then, the C Group share price had increased considerably. In respect of the Appendix 3Y by Mr G dated 23 June 2021, he conceded that, since then, the C Group share price had gone up significantly. In respect of the Appendix 3Y by Mr G dated 8 October 2021, he conceded that, since then, the C Group share price had increased significantly. In respect of the Form 604 by Mr G dated 24 December 2021, the husband agreed that since then the C Group share price had not gone down.

14. In cross-examination, Mr G, albeit reluctantly, ultimately conceded that he would have no objection to an Appendix 3Y and explanatory press release, similar to that in the case of Mr KK of Y Ltd., in the case of a share transfer by the husband to the wife, if it would help the company. It was difficult to accept Mr G's reluctance to make such an appropriate concession and his insistence that such an Appendix 3Y and explanatory press release would not help C Group. I was left with the impression that Mr G was very much a partisan witness, reluctant to make any concessions he perceived as possibly damaging the husband's case, especially in light of his evidence regarding the husband's contributions to C Group and its share price. However, Mr G did concede that that, whether the husband retained 75 per cent or 50 per cent of the shareholding in C Group, either way, he would have “substantial skin in the game” in relation to C Group's ongoing and future success.

15. It is difficult to see the relevance of this point. It cannot go to the issue of contributions, nor was it ultimately said to go to the value of the C Group shares by reason of any discount. Accordingly, it could only go to section 75(2) factors, imported into the adjustive exercise by section 79(4)(e), in particular paragraph (o) thereof, namely, a “fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.

16. Ultimately, in closing submissions, Senior Counsel for the husband conceded that “the bottom line is I think this will just end up a neutral situation”. Further, she conceded that whilst Mr EE's report was “of interest”, she could not suggest that the evidence was strong enough to justify a finding that a transfer of more than 25 per cent, and up to 50 per cent, of the C Group shares to the wife would reduce the value of those shares. I add that, even if it did, the wife would similarly bear any reduction in the proportionate share received by her.

17. In the circumstances, I am satisfied that, properly managed, a transfer of 47.5 per cent of the C Group shares is unlikely to have any impact of the value of the C Group shares, and all the more so, in the long term. Even if there is some impact, it will be borne by the parties in their respective percentage shares. Accordingly, I make no further adjustment in favour of the husband pursuant to s 79(4)(c) on account of s 75(2)(o).

    Conclusion

18. Each party provided a minute of orders sought. The wife's minute was marked Exhibit W-12. That of the husband was marked Exhibit H-1. At the end of the second day, I had the following exchange with Senior Counsel for the husband:

    HIS HONOUR: So are you saying to me you don't take issue with the form of orders sought by the wife other than (1) it seeks a 50/50 split as opposed to a 25/75 split…

    [SENIOR COUNSEL FOR THE HUSBAND]: Yes.

    HIS HONOUR:… and (b) it seeks to split what you say are unsplittable?

    [SENIOR COUNSEL FOR THE HUSBAND]:   Yes.

19. The orders the parties each seek do not differ substantially, other than in respect of the quantum of the percentage division of non-superannuation property they respectively seek.

20. One issue which does arise, and which was not sufficiently addressed at trial, is the adjustment to be made by reason of the wife retaining her motor vehicle and bank account and the husband retaining his motor vehicle and bank account and, through the Trust, the C Group loan of $913,000 and the NAB loan of $734,000.

21. The husband proposes that the wife make a payment to him on account of the disparity between them in respect of those other assets and liabilities. The wife proposes that disparity be accounted for by a reduction in one or more of the parcels of shares to be transferred to her.

22. A difficulty with the husband's proposal is that the wife does not have liquid funds with which to make such a payment. It appears inevitable that she would need to sell or borrow against some of the shares to be transferred to her. A sale of shares might give rise to issues of capital gains taxation and any liability of the husband to contribute his proportionate share thereof. See Rosati & Rosati (1998) FLC 92-804.

23. The difficulty with the wife's proposal is that it is predicated on an equal division, rather than the 47.5/52.5 division I have concluded, taking into account the disparity in the parties' bank accounts and their vehicles, as well as the liabilities for which the husband is to retain responsibility by way of adjustment in the number of shares to be transferred to her.

24. In the circumstances, I shall require the parties, within seven days, to submit to my chambers a minute of orders to give effect to these reasons for judgment.

25. In the event of disagreement as to the form of orders to be made, I shall require the parties, within a further seven days thereafter, each to submit a minute of orders proposed by them, together with an outline of submissions in support thereof (not to exceed five pages). The matter will then be listed before me for further hearing as soon as practicable thereafter, for the making of final orders to give effect to these reasons for judgment.

I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated:       26 July 2022