Wasen & Basara

FEDERAL CIRCUIT COURT OF AUSTRALIA
Wasen & Basara [2021] FCCA 1022

File number(s): SYC 2067 of 2018

Judgment of: JUDGE KEMP

Date of judgment: 14 May 2021

Catchwords: FAMILY LAW – Property – add backs – contributions – one pool including superannuation – wife removed money amounting to waste.

Legislation: Family Law Act 1975 (Cth) ss 75, 79 & 81

Cases cited:
Stanford & Stanford [2012] HCA 52

Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143

G & G (1984) FLC 91-582

Mallett & Mallett (1984) FLC 91-507

C & C (2005) FLC 93-220

D & D (2006) FLC 93-256

Aleksovski & Aleksovski (1996) FLC 92-705

Sippel & Sippel [2004] FamCA 201

Norbis & Norbis (1986) 161 CLR 513

T & T (2000) FLC 93-023

Walters & Walters (1986) FLC 91-733

Russell & Russell (1999) FLC 92-877

Dickson & Dickson (1999) FLC 92-843

Number of paragraphs: 128

Date of last submission/s: 4 February 2021

Date of hearing: 2 & 3 February 2021

Place: Sydney

Solicitor for the Applicant: Mr Stewart

Counsel for the Respondent: Mr Dura
ORDERS

SYC 2067 of 2018

BETWEEN:
MS WASEN

Applicant

AND:
MR BASARA

Respondent

ORDER MADE BY:

JUDGE KEMP

DATE OF ORDER:

14 MAY 2021

THE COURT ORDERS THAT:
1.Within 90 days of the date of these orders, the wife is to pay the husband the sum of $119,659.76 (“the settlement sum”).
2.Contemporaneous with compliance with order 1:
(a)The husband shall do all things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his rights title and interest in the property situated at and known as B Street, Suburb C NSW being the whole of the land more particularly described in the Certificate of Title Folio Identifier … (“the B Street, Suburb C property”).
(b)Contemporaneous with the transfer referred to in (a) above, the parties shall discharge (or refinance) the existing mortgage on title to the B Street, Suburb C property to the intent that the husband shall be freed and discharged from all further liability thereof.

3.Until compliance with order 2 above, the parties shall equally share all liability for all payments for the mortgage debt on the B Street, Suburb C property, together with the rates, taxes, and outgoings of whatsoever nature for the B Street, Suburb C property.
4.If there is non-compliance with order 1 above, the wife and the husband shall forthwith make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale of the B Street, Suburb C property by way of public auction. That for the purposes of implementing this order:
(a)The parties are to do all acts and things and give all consents to jointly instruct a real estate agent to act as the Agent on the sale with the husband to nominate the names of 3 real estate agents (one of those to be the E Real Estate) any of whom he wishes the parties to retain in respect of the said sale and within 7 days after nomination the wife shall select one of those 3 to act for the parties;
(b)The wife shall nominate the names of 3 solicitors/conveyancers, any of whom she wishes the parties to retain in respect of the said sale and within 7 days after nomination the husband shall select one of those 3 to act for the parties,
(c)The auctioneer shall be as nominated by the Agent as appointed in order 4(a);
(d)The auction shall take place at a time and place nominated by the auctioneer so as to enable the B Street, Suburb C property to be properly advertised for sale but no longer than 6 weeks from the date of listing the B Street, Suburb C property for sale;
(e)The reserve price shall be as agreed between the parties in writing and in the absence of agreement for a period in excess of 14 days the reserve price shall be set by a Valuer appointed by the President for the time being of the Australian Property Institute Inc. NSW Division, on the application of either of the parties;
(f)Neither party may confer on any Agent, without the consent of the other party, any right to any sole or exclusive agency in respect of the B Street, Suburb C property or to any commission; and
(g)Either party shall be at liberty to bid at the auction.

5.For the purposes of order 4, the parties shall each cooperate in every way with the Agent including (without limiting the generality of the foregoing):
(a)Making the keys available to the Agent;
(b)Allowing inspection at all reasonable times as requested by the Agent;
(c)Doing or saying nothing to hinder or prevent a sale being effected;
(d)Ensuring the B Street, Suburb C property, including the grounds, are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers; and
(e)Signing all documents requested by the Agent in relation to the listing for sale of the B Street, Suburb C property, except a contract or agreement for sale which has not been authorised by the parties’ solicitor/conveyancer.

6.Upon the completion of the sale of the B Street, Suburb C property the proceeds of the sale be applied as follows:
(a)In payment of Agent's commission and expenses on the sale;
(b)In payment of the legal costs and disbursements and other agreed costs associated with the sale;
(c)In discharge of the mortgage to the Commonwealth Bank secured over the B Street, Suburb C property;
(d)In adjustment of rates, levies and taxes on the B Street, Suburb C property;
(e)In payment of the balance remaining as follows:
(i)90.8% to the wife to be paid into Stewart & Associates Trust Account; and
(ii)9.2% to the husband to be paid into Thurlow Fisher Lawyers Trust Account.

7.At completion of the sale of the B Street, Suburb C property, the wife and husband are to vacate the B Street, Suburb C property leaving the home in a clean and vacant condition.
8.In the event the B Street, Suburb C property is not sold at the auction provided in accordance with order 4 herein, then the B Street, Suburb C property shall be resubmitted for further auction sales every 3 months until sold upon the same terms and conditions as applied to the first auction and provided for herein and by reducing the reserve price by 2% each time.
9.By consent, unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(c)Subject to the above, the parties shall each otherwise be and remain liable for any debts in their own name as at the date of these orders, and in this respect, shall indemnify and keep indemnified the other from any liability in relation thereto.

10.By consent, except as otherwise provided in these orders each party is declared to have no further interest in the items of property in the possession of the other.
11.By consent, in the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s106A, a Registrar or Deputy Registrar of the Federal Circuit Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments..
12.If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
13.The matter is, otherwise, removed from the active pending cases list.

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 under the pseudonym Wasen & Basara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Kemp

This is an application by the wife for property orders.
The applicant wife (“the wife”), initially, sought orders, as set out in her Minute of Order document dated 2 February 2021, being Exhibit “A”, to the following effect:
(1)Within 14 days from the date of these orders, the husband shall do all things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of [his] rights title and interest in the property situated at and known as B Street, Suburb C NSW being the whole of the land more particularly described in the Certificate of Title Folio Identifier … (“the B Street, Suburb C property”).
(2)Contemporaneous with the transfer, the wife shall discharge the existing mortgage on title to the B Street, Suburb C property to the intent that the husband shall be freed and discharged from all further liability thereof.
(3)Until completion of the transfer to the wife, the parties shall equally share all liability for all payments for the mortgage debt, rates, taxes, and outgoings of whatsoever nature.
(4)To the alternative of the above, that within 14 days of the date of these orders, the parties will do all acts and things necessary to list the B Street, Suburb C property for sale, in such manner and for such sum to be as agreed between the parties and failing agreement, as determined by the Real Estate Institute of NSW and to sell the B Street, Suburb C property for the best price reasonably obtainable.
(5)That upon the sale of the [B Street, Suburb C] property, the parties shall distribute the proceeds of sale in the following manner and priority:
(a)In payment of agent's commission and expenses on the sale;
(b)In payment of the legal costs and disbursements and other agreed costs associated with the sale;
(c)In discharge of the mortgage to Commonwealth Bank secured over the [B Street, Suburb C] property;
(d)In adjustment of rates, levies and taxes on the [B Street, Suburb C] property;
(e)In payment of the balance remaining as follows:
(i)70% to the wife; and
(ii)30% to the husband.
(6)That the Court allocates, as required by Section 90XT(1)(b) of the Family Law Act 1975 (Cth) (“the Act”), an equal split of fifty per centum (50%) to the wife out of the interest held by the husband (Member Number: …) in D Super Fund (“the Fund”).
(7)That whenever a splitable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf the husband from his interest in the Fund, the Trustee shall pay the wife the entitlements calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) ("the Superannuation Regulations") and make a corresponding reduction in the entitlement the husband would have had but for these orders.
(8)That after service of the payment slip notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the husband shall do all acts and things and sign all documents necessary, including but limited to exercising the wife’s requests in accordance with the SIS Regulations, for the payment of the entitlement referred to in order 6 (above) to the wife's nominated superannuation fund, by way of lump sum entitlement in accordance with the SIS Regulations.
(9)That order [6] (above) has effect from the operative time, being 4 business days after service of these orders on the Trustee of the Fund.
(10)That having been afforded procedural fairness in relation to the making of these orders, these orders are binding on the Trustee of [the Fund] to observe the trustee obligations set out under the Act and the Superannuation Regulations.
(11)That other than provided in these orders, the parties each be declared to be the sole and beneficial owners of all other property and all other financial entitlements in their names, possession or under their control, to which each party is presently, legally or beneficially entitled, including real property, motor vehicles, jewellery, furniture and furnishings, monies in banks, shares, superannuation entitlements and insurance policies.
(12)That each party be liable for all debts or liabilities held in their names, jointly with another person, or in the names of any business interests with which they are associated and shall indemnify the other party in respect of those debts or liabilities.
(13)That subject to the above provisions of these orders to the contrary:
(a)The wife indemnify, and keep indemnified, the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife and any other liabilities in relation to any property that vests with the wife pursuant to these orders; and
(b)The husband indemnify, and keep indemnified, the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband and any other liabilities in relation to any property that vests with the husband.
(14)That in the event that either party refuses or neglects to execute any deed, document or instrument to give effect to all or any of these orders, then the Registrar of the [Federal Circuit] Court shall be appointed pursuant to Section 106A of the Act to execute such deed, document or instrument in the name of the said party, and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit..
The respondent husband (“the husband”), on the other hand, initially, sought orders in accordance with his Response filed on 10 May 2018, which were to the following effect:
(1)That within 30 days from the date of these orders, the wife and the husband shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale of [the B Street, Suburb C property] by way of public auction. That for the purposes of implementing this order:
(a)Within 14 days, the parties are to do all acts and things and give all consents to jointly instruct E Real Estate to act as the Agents on the sale;
(b)Within 7 days, the wife shall nominate the names of 3 solicitor conveyancers, any of whom she wishes the parties to retain in respect of the said sale and within 14 days thereafter the husband shall nominate one of those 3 to act for the parties, and
(c)The auctioneer shall be as nominated by the Agent as appointed in order 1(a);
(d)The auction shall take place at a time and place nominated by the auctioneer so as to enable the property to be properly advertised for sale but no longer than 6 weeks from the date of listing the B Street, Suburb C property for sale;
(e)The reserve price shall be as agreed between the parties in writing and in the absence of agreement for a period in excess of 14 days the reserve price shall be set by a Valuer appointed by the President for the time being of the Australian Property Institute Inc. NSW Division, on the application of either of the parties.
(f)Neither party may confer on any Agent, without the consent of the other party, any right to any sole or exclusive agency in respect of the B Street, Suburb C property or to any commission; and
(g)Either party shall be at liberty to bid at the auction.
(2)That for the purposes of order 1, the parties shall each cooperate in every way with the Agent including (without limiting the generality of the foregoing):
(a)Making the keys available to the Agent;
(b)Allowing inspection at all reasonable times as requested by the Agent;
(c)Doing or saying nothing to hinder or prevent a sale being effected;
(d)Ensuring the B Street, Suburb C property, including the grounds, are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers; and
(e)Signing all documents requested by the Agent in relation to the listing for sale of the B Street, Suburb C property, except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
(3)That upon the completion of the sale of the B Street, Suburb C property proceeds of the sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the B Street, Suburb C property;
(b)In payment of the Commonwealth Bank mortgage registered on the title of the B Street, Suburb C property; and
(c)The balance divided as follows:
(i)70% to the husband to be paid into Thurlow Fisher Lawyers Trust Account, and
(ii)30% to the wife to be paid into Stewart & Associates Trust Account.
(4)That in the event the B Street, Suburb C property is not sold at the auction provided in accordance with order 1 herein, then the B Street, Suburb C property shall be resubmitted for further auction sales every 3 months until sold upon the same terms and conditions as applied to the first auction and provided for herein and by reducing the reserve price by 2% each time.
(5)At completion of the sale of the B Street, Suburb C property the wife and husband are to vacate the B Street, Suburb C property leaving the home in a clean and vacant condition.
(6)Pending completion of the sale of the B Street, Suburb C property, the wife and husband must pay in respect of the B Street, Suburb C property equally;
(a)all instalments payable under the parties’ [mortgage] of the B Street, Suburb C property;
(b)the council and water rates, and
(c)all the gas and electricity tax invoices.
(7)That the husband retain his interest in his [superannuation] to the exclusion of the wife.
(8)Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(c)Subject to the above, the parties shall each otherwise be and remain liable for any debts in their own name as at the date of these orders, and in this respect, shall indemnify and keep indemnified the other from any liability in relation thereto.
(9)Except as otherwise provided in these orders each party is declared to have no further interest in the items of property in the possession of the other.
(10)In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s106A, a Registrar or Deputy Registrar of the Federal Circuit Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments..

The Court notes that proposed orders 8, 9 and 10 as set out in paragraph 3 above are, substantially, similar in their terms and effect to the proposed orders 11, 12, 13 and 14, as set out in paragraph 2, above. The Court will, therefore, make orders 8, 9 and 10 by consent. The orders proposed by the parties for the sale of the property are, again, in similar terms. However, the Court is of the view that the form of orders proposed by the husband should be adopted as they are somewhat clearer and provide a mechanism for areas of potential dispute to be resolved including the appointment of any agent and solicitor/conveyancer. The Court will not provide for the payment out of gas and electricity tax invoices as proposed by the husband in his order 6 as the parties are obligated to meet those expenses equally and those expenses are not statutory charges as against the B Street, Suburb C property. The Court was unclear whether the wife agreed with the husband’s choice of real estate agent and, accordingly, adopts the same proposed mechanism for the wife to select one of 3 nominated agents noting that the husband can nominate E Real Estate, as one of those 3 nominated agents.
There are no disputes between the parties in relation to parenting given that their children have now all reached the age of majority.
The wife relies, subject to all proper claims as to admissibility and after formal objections were taken, on the following:
(a)Her Affidavit sworn on 3 December 2020 and filed on 22 December 2020;
(b)Her Financial Statement sworn and filed on 31 March 2020;
(c)Affidavit of Ms F (“Ms F”) affirmed on 24 March 2020 and filed on 31 March 2020;
(d)Affidavit of Mr G (“Mr G”) affirmed on 24 March 2020 and filed on 31 March 2020; and
(e)Affidavit of Mr H, employed solicitor, sworn and filed on 1 February 2021. This affidavit deposed to service of the wife’s proposed superannuation splitting orders on the trustee of the Fund. The husband did not dispute that position.
The wife sought to rely on paragraphs 18 and 27 of her earlier Affidavit sworn and filed on 21 March 2020. The wife was not permitted to do so but was permitted to rely on the banking documents referred to as Annexures “A” and “C” to that affidavit. Those documents were, separately, reproduced and were included in Exhibit “Court 2”. The wife was not permitted to rely on her Affidavit sworn on 19 January 2021 and filed on 21 January 2021 in terms of the medical reports attached to that Affidavit.
The wife had not filed an updated Financial Statement, apart from that referred to in paragraph 6(b) above but gave oral evidence that following the impact of Covid 19, she had become fully employed and was earning, approximately, $800.00 per week after tax.
Neither Ms F nor Mr G were required for cross-examination.
The husband relies, subject to all proper claims as to admissibility and after formal objections were taken, on the following:
(a)His Affidavit affirmed and filed on 15 October 2020;
(b)His Financial Statement affirmed and filed on 15 October 2020;
(c)Affidavit of Mr J (“Mr J”) sworn on 28 January 2021 and filed on 29 January 2021; and
(d)The husband’s financial questionnaire document dated 24 May 2019.
The parties and Mr J were cross-examined.
Mr Stewart, solicitor, represented the wife and Mr Dura of Counsel represented the husband.
The following documents were tendered as exhibits in the proceedings:

Exhibit No Document Tendered by

Court 1 Joint balance sheet Court

Court 1A Updated joint balance sheet Court

Court 2 Combined tender bundle Court

Court 3 K Property Valuations Pty Ltd for the B Street, Suburb C property dated 3 February 2021 Court

A Minute of order sought by the wife Wife

1 Bundle of Bank statements from Commonwealth Bank Account ending #...05(12 pages) Husband

2 Letter from wife’s solicitor to the husband’s solicitor dated 5 September 2018 Husband

3 Three (3) stapled bundles of Commonwealth Bank account statements for account ending #...16, …11 and …61 Husband

4 Commonwealth Bank Statement Netbank for the home loan account ending #...05 transaction for 27 January 2021 Husband

5
L Bank Statement evidencing closure of $40,000.00 term deposit (Item 10 on the Balance Sheet);
Opening statement for M Credit Union with proceeds of the said term deposit and interest (Item 11 on the Balance Sheet)
Husband

Exhibit “Court 2” contained the husband’s tender bundle, the wife’s tender bundle together with the financial documents referred to in paragraph 7, above.
BACKGROUND FACTS
The following are the, substantially, agreed background facts:
(a)The husband was born in 1954 and is, currently, 66 years of age.
(a)The wife was born in 1960 and is, currently, 61 years of age.
(b)In 1978, the husband graduated with a bachelor degree in engineering from a University in Country N.
(c)In 1979, the parties were married and commenced cohabitation in Country N.
(d)In 1980, the husband travelled to Country O and commenced his studies for a Master’s degree in engineering which took 2 years to complete.
(e)In 1981, the parties’ first child, Mr P, was born and he is, currently, 40 years of age.
(f)During the period that the husband studied in Country O, the wife and the parties’ child lived with either the husband’s parents or the wife’s parents. The wife and the parties’ child did not travel to Country O.
(g)Upon the husband’s return from Country O (in about 1982), he commenced employment with an engineering company in Country N.
(h)In 1985, the parties’ second child, Mr Q, was born and he is, currently, 35 years of age.
(i)In 1986, the husband entered into a partnership with a friend and began his own engineering business.
(j)In 1989, the husband arrived in Australia to pursue a PhD enrolment with the Region R University which, he subsequently, abandoned when he took up full-time employment as referred to in (l), below.
(k)In 1989, the wife and the parties’ 2 children, referred to in (e) and (h) above, arrived in Australia.
(l)In 1990, the husband obtained employment as an engineer with Employer S.
(m)In 1990, the wife completed a course/training in education and childcare.
(n)In 1992, the parties obtained a home loan and purchased a 2 bedroom unit in Suburb T (“the Suburb T unit”).
(o)In 1993, the wife started a private family day care from the Suburb T unit whilst looking after the parties’ 2 children.
(p)In 1994, the parties’ third child, Ms F, was born and she is, currently, 27 years of age
(q)In 1996, the parties sold the Suburb T unit.
(r)In 1996, the parties purchased the B Street, Suburb C property as joint tenants for the sum of $200,000.00. The wife continued her home day care business from the B Street, Suburb C property.
(s)In 2005, the parties applied to demolish and rebuild the home on the B Street, Suburb C property costing, approximately, $210,000.00.
(t)In 2008, the husband acquired a 3 bedroom apartment in City U in Country N (“the Country N property”). The husband said that he took out a loan of $50,000.00 from the Commonwealth Bank of Australia to assist in this acquisition. The husband said that his mother, currently, lives in that property.
(u)In about 2008, the wife enrolled in a Tafe course and completed a Diploma in Childcare over about a 2 year period as she did that course part-time.
(v)In 2011, the parties were involved in a motor vehicle accident with each receiving compensation for injuries suffered. The husband received $30,000.00 in compensation. The wife said that this sum was used by the husband. The husband did not recall what had happened to those monies but said that he had used them for the benefit of the family. The wife received $120,000.00 in compensation and paid this sum into the parties’ home loan account. The husband agreed that she had done so.
(w)On 12 February 2017, the parties separated but continued to live under the same roof at the B Street, Suburb C property. The parties were, therefore, in a relevant relationship for some 38 years.
(x)On 11 January 2018, the wife withdrew from the parties’ home loan account, which was then showing either a $0.00 balance or a small credit, the sum of $30,000.00.
(y)On 30 April 2018, the wife withdrew from the parties’ home loan account the sum of $234,200.00 which saw the home loan account then go into debit to the extent of $267,140.29.
(z)On 2 July 2018, the parties divorced.
(aa)On 11 July 2018, the wife commenced proceedings in this Court.
(bb)On or about 1 November 2018, the husband purchased a long term leasehold interest (for 30 years) in a condominium project development known as “V Apartments” in City W, Country O (“the City W, Country O property”). The husband’s interest provided for an option to purchase the leased property. The husband acquired his interest for the sum of 855,000 and paid 100,000.00 by way of deposit. See pages 18 and following included in the wife’s tender bundle, being part of Exhibit “Court 2”.
(cc)On 19 December 2019, the husband exited from his superannuation with X Super Fund and received a payout of $872,397.15. Of this sum, $600,000.00 was rolled over to Y Super Fund and $272,397.15 was transferred to an account in the husband’s name with the ANZ bank. The husband, subsequently, withdrew further funds from Y Super Fund and opened term deposits with ANZ bank and rolled over a superannuation sum which now stands in his D Super Fund account (the Fund) in the agreed sum of $106,326.00. The husband said that he had also used his superannuation funds to pay off loans totalling about $80,000.00 to the Commonwealth Bank as referred to in Exhibit “3” (although the Court notes that that exhibit discloses that some $45,000.00 was paid in December 2019 to account number ending …16, some $33,000.00 was paid in January 2020 to account number ending …11 and some $47,000.00 was paid in December 2019 to account number ending …61, totalling $125,000.00), his Mastercard of some $10,689.54 and outstanding sums said to be due and owing in respect of the City W, Country O property . The husband maintained that the balance of his superannuation monies now stand in the bank accounts disclosed in the parties’ agreed balance sheet, as referred in paragraph 48 below.
THE LAW
The decision of the High Court of Australia in Stanford & Stanford [2012] HCA 52 (“Stanford”) makes it clear that the starting point for the exercise of the Court’s jurisdiction under s.79 of the Act to alter the property interests of parties to the marriage is the identification of the existing legal and equitable interests of each of the parties in their property.
The plurality in Stanford warned against conflating requirements of section 79(2) and section 79(4) of the Act and highlighted that the Court must first consider whether it is just and equitable to make an order rather than consider whether the orders are just and equitable in the 4 steps, as referred to below.
Both parties assert and the Court accepts that, in all the circumstances, it is just and equitable that there should be a property adjustment order in terms of the principles set out in Stanford.
The preferred approach to the determination of an application under s.79 of the Act is as set out by the Full Court of the Family Court of Australia in the case of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at p 39, which sets out the following 4 inter-related steps:
1.Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
2.Identify and assess the contributions under s.79(4)(a),(b) & (c) (“the first limb – the contribution factors”) of the parties and express them as a percentage of the net value of the property (examined on either a global approach or an asset by asset approach, depending on the circumstances of the case);
3.Identify and assess the other factors relevant under s.79(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.79(4)(e), the matters referred to in s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
4. Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
In undertaking the first step outlined above, the Court must act with reasonable precision in both identifying and valuing the property pool. However, in the subsequent steps, the Court is not required to assess contributions with mathematical precision: G & G (1984) FLC 91-582 (Nygh J).
In Mallett & Mallett (1984) FLC 91-507, the High Court of Australia held that there was no rule or principle that the property built up by the parties’ joint efforts should be assumed as being equally contributed to.
Section 79(4) of the Act [Matters to be taken into account]
In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
e)the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 75(2) of the Act [Matters]
The matters to be so taken into account are:
a)   the age and state of health of each of the parties;
b)   the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)   whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
d)   commitments of each of the parties that are necessary to enable the party to support:
i.himself or herself; and
ii.a child or another person that the party has a duty to maintain;
e)   the responsibilities of either party to support any other person;
f)   subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
i.any law of the Commonwealth, of a State or Territory or of another country; or
ii.any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
g)   where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
h)   the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)    the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)   the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)    the need to protect a party who wishes to continue that party's role as a parent;
m) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
n) the terms of any order made or proposed to be made under section 79 in relation to:
i.the property of the parties; or
ii.vested bankruptcy property in relation to a bankrupt party;
naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i.a party to the marriage; or
ii.a person who is a party to a de facto relationship with a party to the marriage; or
iii.the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv.vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p) the terms of any financial agreement that is binding on the parties.
q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
SUPERANNUATION
The Full Court of the Family Court of Australia’s decision in C & C (2005) FLC 93-220 also requires the Court to consider the parties’ superannuation interests as a separate species of property.
Where the parties have superannuation, the preferred approach for the Court to adopt, as discussed in C & C (2005) FLC 93-220, is to prepare, as a separate pool, a list of the superannuation interest/s and where a splitting order is sought under Part VIIIB of the Act (or if no such order is sought, it being prudent to do so), carry out the following exercise:
a)Value the superannuation interest/s (according to the Regulations, if a splitting order is sought, or if no such order is sought, then according to the Regulations or otherwise).
b)Identify and assess the contributions under s.79(4)(a),(b) & (c), (“the first limb – the contribution factors”) of the parties and express them as a percentage of the superannuation interest/s (examined on either a global approach or an interest by interest approach, depending on the circumstances of the case);
c)Identify and assess the other factors relevant under s.79(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.79(4)(e), the matters referred to in s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable (in relation to the parties’ property and superannuation interests) in all the circumstances of the case.

C & C (2005) FLC 93-220 also set out in the context of a Court’s consideration of the matters set out in paragraph 25(b) and (c) above, the following relevant matters:
The relationship between years of fund membership and cohabitation, actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present or future entitlements under the fund.
As the Full Court of the Family Court of Australia said in D & D (2006) FLC 93-256, in carrying out the exercise referred to in paragraph 25(d) above, the Court must also have specific regard to a consideration of the mix of superannuation interests and other property with which each party will be left as a result of the Court’s proposed orders. It may be that even though no party seeks a splitting order, it will become clear to the Court that the only just and equitable order which can be made in a particular case, will be for such a splitting order to be made. The Court must then afford the parties an opportunity to be heard in relation to that, and provide to any trustee of the superannuation fund, appropriate notice and a formal valuation of any superannuation interest under the Regulations may be required.
Notwithstanding the preferred approach, the Full Court of the Family Court of Australia in C & C (2005) FLC 93-220 also stated that the Court had discretion to include a superannuation interest as an item of property (whether or not a splitting order is sought) and not consider it as part of a separate pool. The Court indicated that such an approach could be adopted, where:
a) The parties agreed; or
b)The superannuation interest itself fell within the definition of property contained in s.4(1) of the Act; or
c)If the interest did not fall within the definition of property, it was of small value when compared to the value of the items of property; or
d)There are features about the superannuation interest which make this appropriate.
While the wife seeks a superannuation splitting order referrable to the husband’s superannuation, the Court notes that as the husband had, substantially, altered the structure of his superannuation by reducing it from the sum of about $872,397.15 in December 2019 down to $106,326.68 with the difference, after payments having been made, now being held, substantially, in the form of monies at bank or credit union, the Court is of the view that a one pool approach including property and superannuation should be adopted here. The husband seeks to retain his superannuation without any split.
ISSUES
While the parties were in dispute over a number of factual matters, including the level of each of their financial contributions, many of the facts relevant to their competing proposals were agreed upon.
The parties appeared, however, to be in dispute about some of the dates when events had occurred for example when the wife commenced her Tafe course and the frequency of the husband’s trips to City Z, Country O. Little, if anything, turns on that disputation. Similarly, the dispute over which of the parties’ parents the wife lived with, while the husband studied in Country O, identified in paragraph 15(f), above, appeared to be limited to a period of 2 years. The husband’s evidence that his mother and sisters assisted the wife and primarily took on the roles of caring for the children in his absence was inconsistent with his acknowledgement that the wife was, primarily, concerned with the care of the children, in any event. Further, the husband’s evidence that he took 2 rostered days off a month during his employment with Employer S to look after the children when they were younger was not inconsistent with his acknowledgement of the wife’s primary contribution to the care of the children. This is, particularly, so given the length of the parties’ relationship of some 38 years.
The husband, substantially, disputed the wife’s assertion that she had medical problems associated with stress and urge incontinence and osteoarthritis.
The wife, substantially, disputed the husband’s non-financial contributions towards the family which she set at nought. The wife was critical of the husband in terms of monies which she said had been transferred by him overseas totalling, as she calculated, some $237,454.23, expended towards his family, women who she believed he had had relationships with and the purchase of the Country N property and the City W, Country O property which she said was done without her knowledge. The Court notes that the City W, Country O property was acquired by the husband post separation in November 2018 and the wife was notified of this acquisition shortly thereafter. The figure of $237,454.23 is the addition of a number of payments from June 2005 through to April 2018 (being over a period of 13 years) with most of those payments being under $5,000.00. There was a payment of $10,000.00 on 17 March 2014, $11,500.00 on 14 February 2017 and $30,590.00 on 14 November 2017. The husband gave an explanation as to the recipients of those payments who he said included his sister, Ms AA, who he said the wife was well aware of.
The husband asserted that the wife’s withdrawal of funds as referred to in paragraphs 15(x) and (y) above which was acknowledged by the wife had put him to the additional expense of meeting mortgage repayments and interest in the order of some $57,800.00 which, he said, was a waste as the wife had no reason to withdraw those funds as the account was then in credit and to simply place them in an account in her name, which did not earn any significant interest. The wife agreed that she had done so simply to give her some security. The wife countered with the suggestion that the husband could have used some of his withdrawn superannuation to repay the home loan and, thereby, reduce any obligation to pay instalments and interest. The husband countered by asserting that if he had done so, the wife could have withdrawn those funds. Each party acknowledged that they could have sought undertakings or orders from the Court to protect their respective positions but did not do so. Those contentions supported the lack of trust existing between the parties.
EVIDENCE:
The wife sought in her evidence to advocate her case. Nearly every answer to a question posed by Mr Dura was responded with the word “because” and then a statement made to support her position. She conceded that much of her evidence as to financial matters had not been included in her affidavit, including the repayment of monies from her brother-in-law and the payment of monies from and to the parties’ eldest child.
Notwithstanding the wife’s assertion that the husband had not paid for anything, she conceded that between 1979 and 1989 when the parties were living in Country N she was not working in paid employment and the husband had paid for everything. She then gave evidence that when the husband moved from Country N to City Z, Country O to do his Masters she was living with her parents who, otherwise, supported her and the child of the parties’ relationship. The husband’s evidence was that the wife and their eldest child lived with his parents during that time period. No affidavit evidence was provided by either of the parties’ parents or extended family to support their differing versions but, as said, little turns on that.
The wife’s evidence was that she had received monies from her relatives in Country N over about a 3 year period between 2008 and 2011 which, she said, had come to her in instalments, in the order of $5,000.00. She also made mention of 2 sums of $7,000.00 and $8,000.00, totalling $15,000.00. The wife said that this $15,000.00 related to a repayment of monies borrowed by her brother-in-law.
The wife’s evidence was that the $15,000.00 received from her brother-in-law in Country N, arose out of the sale of a property in Country N, to which it would appear the parties’ had provided funds to her brother-in-law, which were then provided by her to the husband in Australia, who had then provided them to his brother who had then given them back to the wife to be sent to Country N. This made no sense at all. Mr Dura submitted that no documents had been put to the husband about those monies being withdrawn and sent to his brother.
The wife said that because of limits at to what monies can be brought into the country, it was likely the instalments which made up the sum of $15,000.00 were included within the $70,000.00 credited to the mortgage account on 3 May 2011. This sum also included, it would appear, an amount of $30,000.00 received from the parties’ elder son after the sale of a property when their son’s marriage had broken down. It appears that the husband and the wife were holding these funds as some form of security for their son. The sum of $30,000.00 was, subsequently, repaid to him in 2018 when the wife withdrew monies from the parties’ home loan account. The wife maintained that the balance sum had been saved over the period of 6 years from 1990 and 1996. She also maintained that she had brought monies with her from Country N. The wife, somewhat, inconsistently also asserted that she had saved some of the $70,000.00 paid in a 3-4 year period, although she was not sure of that timing. She also maintained that this sum had been saved over the entire period of 1990 to 2011; that is, some 21 years.
The wife also said she had deposited $5,000.00 on 6 February 2012 to the parties’ home loan account but it would also appear that, on 10 April 2012, $5,000.00 was drawn out.
The wife said that she deposited $74,000.00 on 9 March 2015 together with $30,000.00 on 21 April 2015.
The wife agreed that she had withdrawn the monies from the parties’ home loan account as set out in paragraphs 15(x) and (y), above.
The wife agreed that because she had withdrawn the funds referred to in paragraph 42 above and it was the husband who had then met all of the costs of that borrowing which had been, substantially, wasted as the wife had kept those funds in a term deposit which had not earned interest to the extent of the interest incurred on the borrowing and had not been established by way of any mortgage offset account, through the bank. Mr Dura put to the wife that the husband had expended funds in the order of some $57,800.00 in the period following the wife’s withdrawal of monies and the wife, substantially, agreed that those funds had been wasted. Her evidence was that she knew that it was the husband who would be obligated to meet the repayments associated with that redraw and that she, substantially, did not care about that as she regarded that as the husband’s problem. The wife’s position in that regard, weighs against her as the Court is satisfied that her conduct, in this regard, amounted to waste. The sum of $57,800.00 represents, however, some 2.7% of the parties’ property and superannuation.
The Court accepts that the wife was aware during the course of the parties’ relationship that the husband was transferring monies to Country N to support family members. The Court accepts the wife’s evidence that she took monies over to Country N. While she said that those monies covered travel expenses there, the Court also accepts that she provided some of those funds to her relatives in Country N. The Court accepts that both parties expended funds by agreement to support their extended families in Country N.
The Court does not accept the wife’s evidence that the husband “hardly lifted a finger” to support the family. The wife conceded that the husband had financially met the costs of rental, mortgage payment and other bills. The wife also met some of the bills. The parties did not operate a joint savings account. The wife’s taxation returns, which the wife maintained were accurate, did not provide significant funds for her to maintain the totality of the family to the extent that she maintained. The Court accepts that the husband’s income also went to maintain the family’s living expenses. To the extent that the wife was able to save monies from her income that was inconsistent with her assertion that she had no money and that the husband refused any of her requests for money. It is likely that, if the wife did save some monies, that the husband’s contribution of his income enabled her to do so. The husband also conceded that the wife had used monies from her income to purchase groceries and to cover the children’s expenses and what was not spent had been saved. The Court accepts that both parties had saved monies to put towards the purchase of the B Street, Suburb C property and its renovations.
In 1993, the wife started a family day care business. It was put to the wife that her income of $500.00 gross per week (before tax) between 1990 and 1993 and $1,000.00 gross per week (before tax) between 1993 and 1996, totalled some $174,000.00. The husband maintained that the wife’s income as disclosed in her tax returns did not reveal income levels to the extent maintained by the wife. For example, her 2010 tax return disclosed a net annual income of $6,146.00 which equated to approximately $118.00 per week and that the weekly expenses of the family would have been more than $118.00 per week and, accordingly, the husband must have, therefore, contributed to those expenses. The wife’s evidence that she also took employment as a casual carer to supplement her income was also inconsistent with her evidence that she was, substantially, saving monies from her business income. The wife was provided with a s.128 Evidence Act Certificate in terms of her evidence that if she was earning the income as disclosed to the Australian Taxation Office (“ATO”), then that income was inconsistent with her assertion that she alone met all of the costs of raising the children and feeding the family and still had sufficient funds to save monies and, accordingly, her evidence to the Court as to those matters was either false or her disclosures to the ATO were false. The Court accepts that the husband and the wife, up until separation, used the same tax agent and each provided their own instructions to that agent and provided their own financial documents, signed their own tax returns and had the same submitted. The Court does not accept the wife’s assertion that the husband had provided information on her behalf or completed documents on her behalf in relation to her tax affairs.
The parties were involved in a motor vehicle accident. Compensation paid in respect of the write off of the motor vehicle is likely to be the source of the contribution of $14,261.00 on 20 October 2008. Shortly after this deposit was made, $28,500.00 was withdrawn on 7 November 2008 and used by the husband, he said, towards the purchase of the Country N property. While the wife maintained that she knew nothing of this purchase, the Court does not accept her evidence in that regard. The balance of the parties’ personal injury compensations were contributed to the parties’ home loan mortgage and family expenses. The husband received $30,000.00 and the wife $120,000.00 in respect of those payments, as set out in paragraph 15(v), above and, accordingly, she made a larger financial contribution from that source of funds.
WHAT WERE THE PARTIES’ PROPERTY, LIABILITIES, SUPERANNUATION AND FINANCIAL RESOURCES AT THE TIME OF HEARING?
The following schedule contains all items which the parties have each identified as their property, liabilities, superannuation and financial resources, as set out in Exhibit “Court 1” and as updated in Exhibit “Court 1A”. The parties were able to reach substantial agreement in terms of the valuations for those items. Exhibit “Court 1”, initially, disclosed an agreed value for the B Street, Suburb C property of $1,120,000.00. The parties agreed that this value was its value in 2018. During the course of the hearing, the parties obtained an updated valuation from K Property Valuations Pty Limited (Exhibit “Court 3”), which provided an updated value of $1,300,000.00 as at 3 February 2021. That updated valuation has now been included in the schedule below.

PROPERTY H/J/W VALUE $

Non-superannuation

1 B Street, Suburb C property J 1,300,000.00

2 Commonwealth Bank Term Deposit Account
Number …14 W 238,900.00

3 Commonwealth Bank Complete Access Account Number …98 W 29,094.32

4 Country N property H 95,000.00

5 City W, Country O property H 165,500.00

6 Home contents J 2,000.00

7 ANZ Access Advantage Bank Account H 4,333.47

8 ANZ Progress Saver Account H 62,634.32

9 ANZ Term Deposit Account H 302,707.39

10 L Bank Term Deposit account – omitted as now included in item 11 below 0

11 M Credit Union 1 Account H 40,532.85

12 M Credit Union 2 Account H 60,000.00

13 Commonwealth Bank Smart Access Account Number …12 H 30.19

14 BB Shares 435 at 4.96 W 2,157.60

15 BB Shares 2,885 at 4.96 H 14,309.60

ADD BACK

16 Proposed add back for monies drawn down from the parties’ home loan since separation plus interest (the husband asserted $57,800.00 and the wife asserted $0) W 0

TOTAL 2,317,199.74

LIABILITIES

17 Commonwealth Bank Home Loan Account Number …05 J 265,672.51

18 Commonwealth Low Fee Gold Master Credit Card Account …21 W 0

TOTAL LIABILITIES 265,672.51

TOTAL NET PROPERTY 2,051,527.23

Superannuation

19 CC Super Fund W 0

20 D Super Fund (the Fund) H 106,326.68

TOTAL SUPERANNUATION 106,326.68

NET PROPERTY PLUS SUPERANNUATION 2,157,853.91

FINANCIAL RESOURCES

Nil

During the course of submissions, Mr Dura indicated that item 10 of the balance sheet in Exhibit “Court 1” may have been duplicated in item 11. This was to be investigated by the parties and the Court was notified in accordance with directions made that that was, in fact, the case and item 10 was, therefore, deleted from the above mentioned schedule. Further, Exhibit “Court 1” disclosed a small differential in the balance of the parties’ joint home loan account in item 17 and as part of the parties’ further investigation this was resolved in the figure now referred to in the above schedule, being the same as set out in Exhibit “4”. This position was confirmed by Mr Dura in his email of 4 February 2021, with the receipt of documents from L Bank detailing the closure of the husband’s term deposit on 29 December 2020 in the sum of $40,534.85 (see Exhibit “5”) and the opening of the certificate of investment with M Credit Union in the sum of $40,532.85. These updated figures together with Mr Dura’s email were included in a new balance sheet being made Exhibit “Court 1A”.
The only item in the above schedule, which was originally contentious, was the initially asserted “add back” as against the wife of $57,800.00 referred to in item 16 which related to the monies redrawn by the wife from the parties’ home loan account and the payments and interest costs met by the husband in respect of that. The parties’ agreed position, however, was that this item would not be considered as an add back. The husband’s position was that the Court could have regard to this item in terms of its assessment of a negative contribution by the wife or under s.75(2)(o) of the Act with care not to “double dip”.
In this regard, Mr Dura submitted that the Court should either consider the husband’s post-separation contribution in meeting the mortgage payments (just under $30,000.00) and the interest payments (just under $30,000.00) noting that both parties continued to reside, post separation, in the B Street, Suburb C property and the husband met all of those payments, save for the wife making monthly payments of about $400.00 from October 2020. Mr Dura submitted that the husband’s expenditure in meeting the sums due to the Commonwealth Bank would not have been needed if the wife had not created the debt which she did, without any agreement with the husband, in circumstances where she then refused to return the funds thereby requiring him to meet the instalments and interest charged by the bank. The husband relied on a letter from his solicitors to the wife’s solicitors dated 5 September 2018 (Exhibit “2”) seeking a return of the monies withdrawn from the home loan account as a matter of urgency in the sum of $287,800.00. This sum was calculated from 18 payments made between March 2017 and August 2018 of which one (1) payment on 30 April 2018 totalled $234,200.00. The wife did not return any of those funds. The wife maintained that $30,000.00 of the funds withdrawn belonged to the parties’ eldest adult child and had been returned to him, in the circumstances referred to in paragraph 39, above. The husband, in his evidence, acknowledged that position.
WHAT WERE THE PARTIES’ FINANCIAL (DIRECT AND INDIRECT) AND NON-FINANCIAL (DIRECT AND INDIRECT) CONTRIBUTIONS?

The Court must then consider all the contributions (direct and indirect), both financial and non-financial to the acquisition, conservation and improvement of the parties’ property, superannuation and financial resources as well as to the welfare of the family before and after separation. The Full Court of the Family Court of Australia said in Aleksovski & Aleksovski (1996) FLC 92-705 (at 83,437):
It is therefore necessary…[to] 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 assessment into a percentage of the overall property of the parties.
The Court must consider the contributions in an overall sense both before and after separation: Sippel & Sippel [2004] FamCA 201.
One matter the Court must consider is whether to adopt a global or asset-by-asset approach to contribution. In the case of Norbis & Norbis (1986) 161 CLR 513 at 534-5, the High Court of Australia held that either approach is available to the Court in part or in whole. The discretion as to which approach is to be adopted should be exercised having regard to the facts of the particular case. The Court is of the view given the length of the parties’ relationship and the nature of the property acquired during that relationship that a global approach should be adopted, here.
DIRECT AND INDIRECT FINANCIAL CONTRIBUTIONS
Initial
Both parties acknowledged that they had little property prior to the commencement of their relationship.
The husband acknowledged that if he had had savings they were minimal. The husband commenced employment as a public servant in Country N shortly after his graduation and until he commenced study in about 1980 in Country O for his Master’s degree.
During the course of the parties’ relationship
The Court is satisfied that the parties’ current property and superannuation interests have been accumulated as a result of their joint efforts during the course of their 38 year relationship.
The Court accepts that it was the husband in the period from 1979 to 1990 who earnt an income as the wife was not working while the parties lived in Country N but she was, substantially, caring for the parties’ 2 children who were born there prior to the parties move to Australia. There is no evidence that the parties’ contributions during that period would not, otherwise, be seen as equal.
After the parties arrived in Australia, the wife had no driver’s license and sought to gain educative qualifications. The wife worked casually to bring in an income and then commenced receiving an income by way of operating a family day care business together with caring for the parties’ children.
The Court accepts that both parties studied, completed courses and worked hard to generate an income for the support of themselves and their children.
The Court accepts that the husband, given his greater earning capacity, contributed more financially towards the parties’ relationship. The wife, however, also contributed financially when she conducted her family day care business from the parties’ home and utilised her income towards meeting the family’s expenses. The wife also contributed indirectly in terms of allowing the husband the opportunity to advance his qualifications while caring for the children.
The Court notes that the wife agreed, in her submissions, that the husband had made a larger initial contribution towards the purchase of the parties’ first home although the Court notes that the parties were in a lengthy relationship of some 38 years.
The Court accepts that the husband used his knowledge and expertise as an engineer to design the home at the B Street, Suburb C property and invested time and labour in assisting in the building and landscaping works conducted on that property. The husband was not cross-examined to the contrary.
The wife asserted that the husband had expended monies on his family and other persons overseas and that she was constantly asking him for money which he refused to give her. The husband asserted that the wife also expended monies on her family and relatives overseas. Both parties travelled overseas and funded trips for the children to visit extended family members. There is little evidence before the Court to quantify any such asserted expenditures. Banking documents which show the transfer of funds refer to gifts of monies. See Exhibit “Court 2”. The husband’s evidence was that some of those transfers were not, necessarily, gifts as the “pull down” menu on the banking transfer documents only provided limited categories and that some monies that were transferred under the heading of gifts were, in fact, transferred to his relatives in terms of repayments to them for the management and maintenance the overseas properties. The husband’s evidence was also that some of these funds were used in the acquisition and maintenance of the Country N property.
Notwithstanding the wife’s assertions that the parties were constantly in need of money to sustain the family, she also asserted that she had saved monies in the order of $70,000.00 (as referred to in paragraph 39, above) to put towards the funding of the B Street, Suburb C property. The husband disputed that assertion indicating that she was unable to save that money from her earnings. The wife had produced her tax returns for the years 2010 to 2019 (part of Exhibit “Court 2”) and provided a section 50 (Evidence Act) table showing the net income produced over those years of $4,396.00, $20,991.00, $17,306.00, $19,077.00, $19,330.00, $11,269.00, $15,378.00, $6,473.00, $1,669.00 and $10,490.00). All of those sums would have been subject to tax. There were no tax documents produced at or around the time of the parties’ acquisition of the B Street, Suburb C property. There were no objective documents in support of the wife’s assertion that she was earning $500.00 per week between 1991 and 1993 and $1,000.00 per week between 1993 and 1996. The wife’s own evidence is unclear as she asserted that she commenced a family day care business in 1990/1991 and in 1993. While the Court does not accept the wife’s assertions as to the magnitude of her savings it does accept that she put all of her earnings towards the expenses of the family. Further, her evidence as to savings was somewhat inconsistent with her evidence that she was constantly seeking monies from the husband to meet the family’s expenditures.
The wife provided bank statements which indicated that various lump sum payments had been made by her into the parties’ home loan account ending in #...05. For example, she refers to a repayment credit of $14,261.00 made on 20 October 2008. However, she does not refer to a withdrawal made on 7 November of $28,500.00. She referred to payments of $15,000.00 made on 16 December 2011, $70,000.00 made on 3 May 2011, $5,000.00 made on 6 February 2012, $74,000.00 made on 9 March 2015 and $30,000.00 made on 21 April 2015.
The wife asserted that the husband had done nothing to care for the children. The husband’s evidence was that he had done some activities towards their care but acknowledged that the lions share was done by the wife. The Court accepts that, for the period that the wife was not able to drive, the husband did drive the wife to her education courses and drove the parties’ children to their school and extra-curricular activities. This was confirmed by Mr J who lived in the same street as the parties when they lived in Suburb T. Mr J confirmed that the husband had prepared meals for the family while the wife attended Tafe as, he said, he would visit the husband at his house and observe those activities. The husband asserted that while the wife was studying at Tafe he looked after the children. The wife argued that, at that time, the children were adults. However, it would appear that 2 of the children were adults with Ms F being about 14 years of age. The Court accepts that Mr J is a relative of the husband and acknowledged that he was not friendly with the wife. The wife’s evidence, to an extent, supported Mr J’s evidence as she acknowledged that the husband had cooked but then argued that the children and she did not like his cooking. She also acknowledged that the husband and Mr J assisted when the parties held functions, birthdays and other events at their home. The wife disputed that the husband had done any home maintenance but then acknowledged, as Mr J asserted, that he had mowed the lawns but then she said that she, herself, had purchased a lawn mower to carry out that activity.
Ms F confirmed that the wife looked after the children, did the housework and cooked. She confirmed that the wife would sew school uniforms and taught her how to drive. She had not spoken to the husband in 6 years.
Mr G also confirmed that the wife looked after the children including doing housework, cooking, buying groceries and clothes and also taught him how to drive. He confirmed that the husband was always working and while, he said, on the weekend he would not spend time with the children, it is unclear whether that was because he was working.
The Court accepts that the wife was much more critical of the husband’s contributions, which she sought to minimise to nought, than he was of her contributions. The Court accepts that it is likely that the husband did contribute. The Court preferred the evidence of the husband, in this regard.
The Court concludes that the parties’ contributions during cohabitation should be regarded as equal. The husband’s financial contributions exceeding those of the wife. The wife’s non-financial contributions exceeding those of the husband.
Post Separation
Following separation, the husband paid down the mortgage on the B Street, Suburb C property until it went into credit.
Both parties continue to live in the B Street, Suburb C property. To that extent both are likely to have contributed to its maintenance.
The wife acknowledged that the husband had met the mortgage repayments from separation (February 2017) until September 2020 noting that there had been some deferrals agreed between the husband and the bank and the wife and the bank, as a result of the impact of COVID-19. Further, the wife acknowledged that the husband had met, since separation, the water rates, council rates and electricity bills. He had also met the insurances on the B Street, Suburb C property. Since October 2020, the wife has met some of the mortgage payments and some of the rates and electricity bills. Further, the husband’s acquisition of the City W, Country O property was a post separation contribution by him.
WHAT WERE THE PARTIES’ CONTRIBUTIONS TO THE WELFARE OF THE FAMILY, INCLUDING THOSE IN THE CAPACITY OF HOMEMAKER OR PARENT?
The Court notes that the parties were in a 38 year relationship. The husband was the primary breadwinner and the wife was the primary carer for the children and homemaker. She also worked casually and part-time and her income was used to assist in the payment of the family’s expenses.
The husband maintained that the wife sought to draw a distinct line between her and the husband’s money and as to what each had paid for during the parties’ lengthy relationship. The Court accepts Mr Dura’s submission that it should not go down that path as that would involve an audit of the parties’ expenditures.
The wife maintained that the husband had paid no part at all in caring for the children, in doing housework or in maintaining the parties’ property in that she asserted he would go to work early, come home late, cook a meal for himself and ignored the family. Relevantly, this was not put to the husband and he denied that position in his evidence in any event. The Court accepts that it is likely that while the wife was the main contributor to the welfare of the family in the capacity of homemaker and parent, the husband did, in fact, contribute to the extent he could, given the Court notes that it is likely that the husband’s full-time employment and his working hours also impacted on his ability to contribute, in any event.
The wife maintained that there should be an adjustment based on contributions as to 60% in her favour.
The husband maintained that there should be an adjustment based on contributions as to 60% in his favour.
Weighing all of the factors relating to contributions, both financial and non-financial, the Court assesses the parties’ contribution entitlement as being, in the overall circumstances, equal. Accordingly, the wife would be entitled to receive $1,078,926.96 and the husband would be entitled to receive $1,078,926.95 in the property and superannuation pool.
WHAT IS THE EFFECT, IF ANY, OF ANY PROPOSED ORDER UPON THE PARTIES’ EARNING CAPACITY?
The proposed orders do not impact on the earning capacity of either the husband or the wife.
ANY ADJUSTMENT UNDER S.75(2) OF THE ACT?
The husband and wife submit that adjustment should be made referable to the following factors in the percentages submitted.
a) the age and state of health of each of the parties;
The husband is 66 years of age and while he maintained that he had elevated sugar levels, high cholesterol and blood pressure and uric acid for which he took medication, there was no objective evidence that any of those asserted health issues impacted on his ability to continue to work.
The wife is 61 years of age and while she maintained that she had medical problems including knee pain, osteoarthritis and bladder urgency and referred to suffering from depression and stress, there was no objective evidence that any of those asserted health issues impacted on her ability to continue to work. Indeed, the wife acknowledged that she was now earning $800.00 per week net of tax as she had been able to obtain employment. The wife asserted, however, that there was no certainty that her employment would continue.
The Court is of the view that this factor is neutral in terms of any adjustment.
b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband works full time as an engineer with Employer S and has done so since 1990, being in excess of 30 years. While he asserted that he planned on retiring in early 2021, he continues in such remunerative employment. The husband in his Financial Statement deposed to receiving a weekly income (before tax) of $2,384.00. He confirmed that his bank statements showed a fortnightly payment net of tax of some $3,276.24. His weekly expenditure was in the order of $1,425.00 made up of $450.00 in other living expenses. The wife maintained that the husband’s greater income earning capacity and greater security of employment would sound in an adjustment in her favour. While that may be correct, it has to be assessed in terms of his age at 66 years of age.
The wife has worked casually but said that she, currently, earns $800.00 per week net of tax. The wife did not update her Financial Statement which disclosed an income of $244.00 per week with expenses of $680.00 per week, including $410.00 of other living expenses. While she deposed to seeking $200.00 per week by way of ongoing spousal maintenance that relief was not pursued at hearing. The wife submitted that while she was busy at the moment that situation was not secure and given her age at 61 years she may experience difficulties finding employment in future years. She, further, submitted, however, that that position would potentially not prevent her from refinancing the parties’ mortgage to pay out the husband.
The Court is of the view that this factor is neutral in terms of any adjustment.
c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The Court refers to paragraph 15 which notes the parties’ 3 children have reached the age of majority and, therefore, this factor is not applicable.
d) commitments of each of the parties that are necessary to enable the party to support: i) himself or herself; and ii) a child or another person that the party has a duty to maintain;
No relevant matter was put to the Court concerning this factor.
e) the responsibilities of either party to support any other person;
No relevant matter was put to the Court concerning this factor.
f) subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under: i) any law of the Commonwealth, of a State or Territory or of another country; or ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
The wife submitted that given that the husband had withdrawn a substantial amount of his superannuation of, approximately, $766,000.00 and utilised those monies for his own benefit, there should be some adjustment in her favour. The Court accepts that while the husband has explained a substantial part of the utilisation of these funds, including towards the acquisition of the City W, Country O property and payment of loans nevertheless they are not, currently, available by way of a superannuation split to the wife and that sounds in an adjustment in her favour.
The Court accepts that the husband is, subject to any means test, eligible for the aged pension as he has turned 66 years of age. The wife would not be entitled to the aged pension for another 6 years. She would, however, be entitled to the receipt of Newstart allowance if she was not earning an income.
The wife has no superannuation. This weighs in favour of an adjustment to the wife in terms of the one pool consisting of property and superannuation.
g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
No relevant matter was put to the Court concerning this factor.
h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
No relevant matter was put to the Court concerning this factor.
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;
No relevant matter was put to the Court concerning this factor.
j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
No relevant matter was put to the Court concerning this factor.
k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
No relevant matter was put to the Court concerning this factor.
l) the need to protect a party who wishes to continue that party's role as a parent;
No relevant matter was put to the Court concerning this factor.
m) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
No relevant matter was put to the Court concerning this factor.
n) the terms of any order made or proposed to be made under section 79 in relation to: the property of the parties; or vested bankruptcy property in relation to a bankrupt party;
No relevant matter was put to the Court concerning this factor.
naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);

No relevant matter was put to the Court concerning this factor.
na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
No relevant matter was put to the Court concerning this factor.
o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The husband submitted that the wife had not provided a clear picture as to her financial circumstances given that her Financial Statement was nearly 12 months old at the time of the hearing. Notwithstanding the provision to the wife of a s.128 Evidence Act Certificate, the Court notes that any asserted failure to disclose income to the ATO, substantially, occurred during the parties’ relationship and the husband more than likely benefited from that position, in any event.
The wife maintained that it was not until the commencement of these proceedings that she found out about the husband’s interest in the City W, Country O property. The Court notes, however, that the City W, Country O property was acquired some 4 months after the proceedings had been commenced by the wife. While the wife claimed that the husband had sent monies overseas in the order of $237,000.00 which, she said, had been paid to support various women, family members and to purchase property, the Court notes that both the Country N property and the City W, Country O property purchased by the husband in his sole name are included in the balance sheet at a combined value of $260,500.00. The Court also notes that the husband’s funds (together with those of the wife) were utilised to reduce mortgage liabilities on the B Street, Suburb C property. The Court does not accept that the evidence supports the husband’s transfer of monies overseas as waste.
While the husband withdrew money from his superannuation and placed funds into various accounts under his control which are also on the balance sheet, there appears to the Court to be a disparity between what the husband withdrew from his superannuation and the funds now standing to his credit on the balance sheet and this disparity, particularly in terms of the nature of the funds available, weighs in favour of an adjustment to the wife.
The husband also submitted that the wife’s “negative” behaviour as set out in paragraphs 43 and 50, above had cost the parties in the order of $57,800.00. The Court notes that the wife holds $238,900.00 in her term deposit which was created after she withdrew funds under the parties’ joint mortgage. The mortgage stands at $266,072.51. The wife used some $30,000.00 to repay a debt to the parties’ elder son, as acknowledged by the husband. In those circumstances, leaving aside the costs of meeting the debt created by the wife’s withdrawal of funds most of the funds withdrawn by her are clearly identified on the balance sheet. Given the Court’s view as set out in paragraph 43 above, this would sound in a small adjustment to the husband.
p) the terms of any financial agreement that is binding on the parties;
No relevant matter was put to the Court concerning this factor.
q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
No relevant matter was put to the Court concerning this factor.
The husband submits that any adjustment should be minimal.
The wife submitted that an adjustment of a further 10% should be made in her favour, so that the final adjustment to the matrimonial pot should be assessed at 70% to her and 30% to the husband.
Considering then all of the above s.75(2) factors, the Court is of the view that there should be an adjustment of 5% (otherwise reduced in light of the matters set out in paragraph 108, above) made in favour of the wife in the one property and superannuation pool which equates to approximately $107,892.69. This, the Court regards, as a proper adjustment given the parties’ ages, health and current earning positions and reflects the cumulative outcome of the findings made pursuant to s.75(2): see T & T (2000) FLC 93-023, as set out above.
Accordingly, the wife would be entitled to receive 55% of the net property and superannuation pool, being the sum of $1,186,819.65.
Accordingly, the husband would be entitled to receive 45% of the net property and superannuation pool, being the sum of $971,034.26.
His Honour Lindenmeyer J in Walters & Walters (1986) FLC 91-733, when commenting about limitations upon the power of the Court and, in particular, limitations with regard to distribution of property, said:
The wording of section 79(1), itself, in my opinion clearly limits the application of the Court’s power to property existing at the time of the hearing.
In my opinion, section 79(1) does not give the Court a power to order a settlement out of property which does not exist and could only be brought into existence by the exercise of an alleged borrowing capacity.
ARE THE PROPOSED ORDERS JUST AND EQUITABLE?
Section 79(2) of the Act provides that:
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
It is the justice and equity of the actual orders that the Court must consider: Russell & Russell (1999) FLC 92-877.
As the Full Court of the Family Court of Australia said in Dickson & Dickson (1999) FLC 92-843:
Whilst it may, as a matter of individual circumstance, be correct to say that the mere existence of disparity of wealth ought not of itself justify a settlement of property to one party at the expense of the other, it may often, in the overall circumstances of a case, call for further adjustment beyond that assessed on contributions alone, so that the final order is just and equitable…
Section 81 of the Act requires the Court, as far as practicable, to finalise the financial relationship between parties when making orders for property settlement.
Section 79(5) of the Act needs to be exercised very sparingly and only in appropriate circumstances. This is not one of those circumstances.
The wife and husband will, therefore, receive the property and be liable for the debts, as set out in the following tables:

Property to be retained by wife $

The B Street, Suburb C Property 1,300,000.00

Commonwealth term deposit 238,900.00

Commonwealth bank complete access account 29,094.32

Home contents 2,000.00

BB shares 2,157.60

TOTAL 1,572,151.92

Liabilities to be met by the wife

Commonwealth bank home loan 265,672.51

Commonwealth Mastercard 0

TOTAL PROPERTY LESS LIABILITIES 1,306,479.41

Less payment to the husband 119,659.76

TOTAL NET PROPERTY 1,186,819.65

Property to be retained by husband $

Country N property 95,000.00

City W, Country O property 165,500.00

ANZ Access advantage bank account 4,333.47

ANZ progress saver count 62,634.32

ANZ term deposit 302,707.39

M Credit Union 1 40,532.85

M Credit Union 2 60,000.00

Commonwealth bank smart access 30.19

BB shares 14,309.60

TOTAL 745,047.82

Plus payment from wife 119,659.76

TOTAL 864,707.58

Liabilities to be met by husband

0

PLUS SUPERANNUATION 106,326.68

TOTAL NET PROPERTY PLUS SUPERANNUATION 971,034.26

The wife wishes the opportunity to purchase the B Street, Suburb C property. The husband wanted to sell the B Street, Suburb C property. While the husband did not, substantially, oppose the wife’s proposal, he sought that it must occur within a stipulated period of time, failing which the said property should be sold. The Court proposes that that period be 90 days. The Court notes Mr Dura’s submission that the wife’s financial circumstances given there was no independent evidence as to her borrowing capacity were such that if she was not able to pay out the husband then the B Street, Suburb C property should be sold sooner rather than later as the parties were living in difficult circumstances together in that property and that that position should be brought to an end. Mr Stewart submitted that the parties had lived together for a significant time post their separation in 2017 and while not ideal another few months was “not going to kill them”. The Court notes that the wife has funds in her Commonwealth Bank term deposit sufficient to meet the payment of the settlement sum to the husband. If the B Street, Suburb C property needs to be sold then the appropriate percentage of the sale proceeds to be divided between the parties should be as to 9.2% to the husband and 90.8% to the wife noting that the settlement sum of $119,659.76 represents 9.2% of the agreed value of the B Street, Suburb C property and there will be necessarily further costs of sale, legal costs and adjustments to effect that sale.
In assessing whether or not this is a just and equitable outcome, it would result in a situation where the husband will have superannuation which he will be able to access. The wife will have access to the husband’s superannuation monies which currently exist on the balance sheet as monies in various bank accounts in terms of the adjustment orders made in the one property and superannuation pool. The parties have disclosed joint home contents of $2,000.00. The Court is of the view that this value should be applied to the wife as it is her intent to obtain the home being the B Street, Suburb C property. The parties could, nevertheless, of course reach some other agreement about the distribution of any joint home contents between them. The Court is, also, of the view that the proposed order, as set out in 2(b) at the commencement of these reasons should provide for not only a discharge of mortgage but, in the alternative, for a re-finance.
The Court is satisfied that, in all the circumstances of this case, the orders it proposed are just and equitable.
COSTS
Section 117 of the Act sets out that each party shall bear his or her own costs subject to the considerations in sub-section two.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is, naturally, something that can only be addressed after judgment is delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made, as set forth above.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kemp.
Associate:
Dated: 14 May 2021

[2021] FCCA 1022

14 May 2021

Key Legal Topics

Areas of Law

Family Law

Property Law

Civil Procedure

Legal Concepts

Costs

Consent

Remedies

Jurisdiction

Procedural Fairness

Res Judicata

File number(s):	SYC 2067 of 2018
Judgment of:	JUDGE KEMP
Date of judgment:	14 May 2021
Catchwords:	FAMILY LAW – Property – add backs – contributions – one pool including superannuation – wife removed money amounting to waste.
Legislation:	Family Law Act 1975 (Cth) ss 75, 79 & 81
Cases cited:	Stanford & Stanford [2012] HCA 52 Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 G & G (1984) FLC 91-582 Mallett & Mallett (1984) FLC 91-507 C & C (2005) FLC 93-220 D & D (2006) FLC 93-256 Aleksovski & Aleksovski (1996) FLC 92-705 Sippel & Sippel [2004] FamCA 201 Norbis & Norbis (1986) 161 CLR 513 T & T (2000) FLC 93-023 Walters & Walters (1986) FLC 91-733 Russell & Russell (1999) FLC 92-877 Dickson & Dickson (1999) FLC 92-843
Number of paragraphs:	128
Date of last submission/s:	4 February 2021
Date of hearing:	2 & 3 February 2021
Place:	Sydney
Solicitor for the Applicant:	Mr Stewart
Counsel for the Respondent:	Mr Dura

ORDER MADE BY:	JUDGE KEMP
DATE OF ORDER:	14 MAY 2021

Exhibit No	Document	Tendered by
Court 1	Joint balance sheet	Court
Court 1A	Updated joint balance sheet	Court
Court 2	Combined tender bundle	Court
Court 3	K Property Valuations Pty Ltd for the B Street, Suburb C property dated 3 February 2021	Court
A	Minute of order sought by the wife	Wife
1	Bundle of Bank statements from Commonwealth Bank Account ending #...05(12 pages)	Husband
2	Letter from wife’s solicitor to the husband’s solicitor dated 5 September 2018	Husband
3	Three (3) stapled bundles of Commonwealth Bank account statements for account ending #...16, …11 and …61	Husband
4	Commonwealth Bank Statement Netbank for the home loan account ending #...05 transaction for 27 January 2021	Husband
5	L Bank Statement evidencing closure of $40,000.00 term deposit (Item 10 on the Balance Sheet); Opening statement for M Credit Union with proceeds of the said term deposit and interest (Item 11 on the Balance Sheet)	Husband

PROPERTY	H/J/W	VALUE $
*Non-superannuation*	H/J/W	VALUE $
1	B Street, Suburb C property	J	1,300,000.00
2	Commonwealth Bank Term Deposit Account Number …14	W	238,900.00
3	Commonwealth Bank Complete Access Account Number …98	W	29,094.32
4	Country N property	H	95,000.00
5	City W, Country O property	H	165,500.00
6	Home contents	J	2,000.00
7	ANZ Access Advantage Bank Account	H	4,333.47
8	ANZ Progress Saver Account	H	62,634.32
9	ANZ Term Deposit Account	H	302,707.39
10	L Bank Term Deposit account – omitted as now included in item 11 below	0
11	M Credit Union 1 Account	H	40,532.85
12	M Credit Union 2 Account	H	60,000.00
13	Commonwealth Bank Smart Access Account Number …12	H	30.19
14	BB Shares 435 at 4.96	W	2,157.60
15	BB Shares 2,885 at 4.96	H	14,309.60
ADD BACK
16	Proposed add back for monies drawn down from the parties’ home loan since separation plus interest (the husband asserted $57,800.00 and the wife asserted $0)	W	0
TOTAL	2,317,199.74
LIABILITIES
17	Commonwealth Bank Home Loan Account Number …05	J	265,672.51
18	Commonwealth Low Fee Gold Master Credit Card Account …21	W	0
TOTAL LIABILITIES	265,672.51
TOTAL NET PROPERTY	2,051,527.23
*Superannuation*
19	CC Super Fund	W	0
20	D Super Fund (the Fund)	H	106,326.68
TOTAL SUPERANNUATION	106,326.68
NET PROPERTY PLUS SUPERANNUATION	2,157,853.91
FINANCIAL RESOURCES
Nil

Property to be retained by wife	$
The B Street, Suburb C Property	1,300,000.00
Commonwealth term deposit	238,900.00
Commonwealth bank complete access account	29,094.32
Home contents	2,000.00
BB shares	2,157.60
TOTAL	1,572,151.92
Liabilities to be met by the wife
Commonwealth bank home loan	265,672.51
Commonwealth Mastercard	0
TOTAL PROPERTY LESS LIABILITIES	1,306,479.41
Less payment to the husband	119,659.76
TOTAL NET PROPERTY	1,186,819.65
Property to be retained by husband	$
Country N property	95,000.00
City W, Country O property	165,500.00
ANZ Access advantage bank account	4,333.47
ANZ progress saver count	62,634.32
ANZ term deposit	302,707.39
M Credit Union 1	40,532.85
M Credit Union 2	60,000.00
Commonwealth bank smart access	30.19
BB shares	14,309.60
TOTAL	745,047.82
Plus payment from wife	119,659.76
TOTAL	864,707.58
Liabilities to be met by husband
0
PLUS SUPERANNUATION	106,326.68
TOTAL NET PROPERTY PLUS SUPERANNUATION	971,034.26