Westbrook & Westbrook (No 2)

[2024] FedCFamC1F 684

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Westbrook & Westbrook (No 2) [2024] FedCFamC1F 684

File number:

SYC 5635 of 2022

Judgment of:

CARTER J

Date of judgment:

15 October 2024

Catchwords:

FAMILY LAW – PROPERTY – application for property adjustment between the husband and wife – whether interim distributions should be added back into the pool – where the husband contends the single expert valuation of a real property is flawed – where it is just and equitable to make an order – consideration of the parties’ contributions – where the parties’ contributions are assessed as equal – where a modest adjustment pursuant to s75(2) in favour of the wife is appropriate – where the overall pool will be adjusted and divided 52.5% to the wife and 47.5% to the husband.

Legislation:

 Family Law Act 1975 (Cth) ss 75, 79, 81, 90XT

Cases cited:

Aleksovski v Aleksovski (1996) 135 FLR 131

Bevan v Bevan (2013) 279 FLR 1

C & C [1998] FamCA 143

Dickons v Dickons (2012) 50 Fam LR 244

Dovgan & Dovgan [2021] FamCA 306

Mallet v Mallet (1984) 156 CLR 605

Omacini and Omacini (2005) FLC 93-218

Van der Linden & Kordell [2010] FamCAFC 157

Division:

Division 1 First Instance

Number of paragraphs:

162

Date of last submission/s:

11 October 2024

Date of hearing:

15 – 17 July 2024

Place:

Melbourne

Counsel for the Applicant:

Mr Havenstein

Solicitor for the Applicant:

Newnhams Solicitors

Counsel for the Respondent:

Mr Roberts

Solicitor for the Respondent:

Pearson Emerson Family Lawyers

ORDERS

SYC 5635 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WESTBROOK

Applicant

AND:

MR WESTBROOK

Respondent

ORDER MADE BY:	CARTER J
DATE OF ORDER:	15 OCTOBER 2024

THE COURT NOTES THAT:

A.The following definitions for the purposes of these Orders:

(a)“Act” means the Family Law Act 1975 (Cth);

(b)“Suburb K Property” means the property situated at and known as J Street, Suburb K in the State of New South Wales, being the whole of the land contained in Folio Identifier …/…. of which the wife is the owner;

(c)“L Street Property” means the property situated at and known as L Street, Suburb M in the State of New South Wales, being the whole of land contained in Folio Identifier .…/…… which sold in 2023 for $1,810,000;

(d)“O Street Property” means the property situated at and known as O Street, Suburb N in the State of New South Wales, being the whole of the land contained in Folio Identifier ../…. which sold and settled in 2024 for $1,760,000;

(e)“1 C Street Property” means the property situated at and known as 1 C Street, Suburb E in the State of New South Wales being the whole of the land contained in Folio Identifier ./…… of which the husband and wife are joint tenants subject to the 1 C Street Mortgage;

(f)“1 C Street Mortgage” means the mortgage to Westpac Banking Corporation registered on the title to the 1 C Street Property;

(g)“R Street Property” means the property situated at R Street, Suburb M in the State of New South Wales, which sold for $1,460,000 in 2023;

(h)“Husband” means Mr Westbrook born in 1970;

(i)“Lawyer” means Mr S of U Lawyers;

(j)“P Street Property” means the property situated at and known as P Street, Suburb Q in the state of New South Wales being the whole of land contained in Folio Identifier ./…… which sold in 2023 for $1,700,000;

(k)“T Limited Rights” means the interest of Westbrook Family Trust in the unvested T Limited shares;

(l)“party” means the husband or the wife;

(m)“parties” means the husband and the wife;

(n)“2 H Street Property” means the property situated at and known as 2 H Street, Suburb E in the state of New South Wales being the land contained in Lot .. of Strata Plan .. at Suburb E of which the husband and the wife are joint tenants subject to the 2 H Street Mortgage;

(o)“2 H Street Mortgage” means the mortgage to Westpac Banking Corporation registered on the title to the 2 H Street Property;

(p)“Seller’s Advocate” means Mr V from W Agency;

(q)“Westbrook Family Trust” means the Westbrook Family Trust created by Deed of Settlement dated 2021 between Ms BB as settlor and the Husband as trustee, of which the Husband is the Appointor and the Primary Beneficiaries are the Husband and the parties’ children X, Y and Z;

(r)“U Lawyers Account” means the trust account of U Lawyers and/or any controlled monies account established by U Lawyers (including but not limited to account numbered 13) wherein funds are held in the names of the parties; and

(s)“Wife” means Ms Westbrook born in 1971.

B.Pursuant to section 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

THE COURT ORDERS BY CONSENT THAT:

2 H Street Property

1.Within 28 days of the date of these orders or as otherwise agreed between the parties in writing, the parties take all necessary steps and execute all necessary documents to cause the 2 H Street Property to be sold as agreed between the parties in writing and failing agreement, in accordance with the conditions set out at Order 2. 

2.For the purpose of Order 1 above, unless otherwise agreed between the parties in writing: 

(a)the parties engage the Lawyer to act on the sale of the 2 H Street Property;

(b)the parties appoint the Seller’s Advocate;

(c)the parties confer with the Seller’s Advocate for the purpose of appointing a real estate agent and in the event the parties cannot reach an agreement on the appointment of an agent within two business days of appointing the Seller’s Advocate then the Seller’s Advocate appoint the agent and the parties sign an Agency Agreement within a further 24 hours (“the Agent”);

(d)the parties take into account the recommendations of the Agent and the Seller’s Advocate as to any repairs and improvements to the 2 H Street Property and undertake such repairs as are agreed to between the parties in writing, with the costs to be borne equally by the parties and paid from the U Lawyers Account as and when they fall due;

(e)the parties appoint Mr CC to style the property for sale, and in this regard the parties do all acts and things and sign all documents necessary to cause Mr CC to style the property as he recommends, with the cost to be borne equally by the parties and paid from the U Lawyers Account as and when they fall due;

(f)the 2 H Street Property be listed for sale by public auction forthwith, noting that the tenant has been given notice to vacate by a date in 2024, and the auction date is to be agreed by the parties in writing and failing agreement is to be determined by the agent provided that the first auction is to take place within eight weeks of the 2 H Street Property being listed for sale;

(g)the auctioneer, if not a member of the Agent’s firm, shall be appointed by the parties no later than seven days prior to the Auction, and failing agreement, is to be appointed by the Agent, with the costs of that appointment to be borne equally by the parties as and when they fall due;

(h)the costs of marketing the property for sale be borne equally by the parties and paid from the U Lawyers Account as and when they fall due;

(i)in the event a prospective purchaser makes an offer on the 2 H Street Property prior to the proposed date for auction, the parties may agree on a price in writing and sell to such purchaser. In the event the parties are unable to agree on a sale price, then the 2 H Street Property is to proceed to auction;

(j)the reserve price for the purpose of the first auction shall be such price as the parties agree upon in writing or, in the absence of agreement reached within 3 business days prior to the first auction, as nominated by the Seller’s Advocate;

(k)in the event the bidding at the first auction does not reach the reserve price, the Seller’s Advocate may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not more than five per cent below the reserve price, or at such other price as the parties agree upon in writing;

(l)in the event the 2 H Street Property is not sold at the first auction or contracts for sale are not exchanged within seven days of the said auction and/or settlement for the sale of the 2 H Street Property does not occur as set out in the sale contract, the parties do all acts and things and sign all documents necessary to continue to relist the property for sale by public auction again in three monthly intervals thereafter, and the provisions of Orders 2(a) to 2(k) (inclusive) shall apply successively until the property has been sold so that at each successive auction the reserve price shall be five per cent less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing;

3.On settlement of the sale of the 2 H Street Property, the parties do all acts and things and sign all documents necessary to cause the proceeds of sale to be paid in the following manner and priority:

(a)in payment of the agent’s commission, advertising, marketing and auction expenses, the legal costs of the sale, and/or other expenses associated with the sale;

(b)in payment of any outstanding council and water rates and usual adjustments;

(c)in payment of amounts required to discharge the 2 H Street Mortgage;

(d)in payment of the amounts required to pay all outstanding land tax levied against the property;

(e)the sum on account of estimated capital gains tax with respect to the sale to the U Lawyers Account, to be held pending such liability becoming due and payable and then paid pursuant to these orders, with such sum to be $182,845 up to a sale price of $1,100,000 or otherwise if the property sells for more than $1,100,000 and the parties are unable to agree to the capital gains tax then the parties appoint an accountant in the same manner as set forth in Order 11 to estimate the capital gains tax and pay that amount to the U Lawyers Account; and

THE COURT ORDERS THAT:

(f)The balance thereafter to be split between the parties 52.5 per cent to the wife and 47.5 per cent to the husband.

THE COURT FURTHER ORDERS BY CONSENT THAT:

4.The parties each cooperate in every way with the agent and auctioneer with respect to the sale of the 2 H Street Property, including (without limiting the generality of the foregoing):

(a)making the key available to the agent;

(b)allowing inspection of the 2 H Street Property at all reasonable times requested by the agent and/or the auctioneer;

(c)ensuring the 2 H Street Property is in a neat and clean condition at the time of inspection by the agent, auctioneer and/or prospective purchasers; 

(d)refraining from doing or saying anything to hinder or prevent a sale being effected; and

(e)signing all documents requested by the Seller’s Advocate and/or the Agent in relation to the listing for sale of the 2 H Street Property within 48 hours of receipt except a contract or agreement for sale which has not been authorised by the Lawyer.

5.Pending the sale of the 2 H Street Property, all mortgage repayments with respect to that property shall continue to be met from the U Lawyers Account and the parties do all acts and things and sign all documents necessary to authorise the payment of the mortgage from the U Lawyers Account as and when it falls due.

6.Pending the sale of the 2 H Street Property the parties do all acts and things and sign all documents necessary to authorise the rental payments for the 2 H Street Property to be deposited into the U Lawyers Account.

Capital Gains Tax

7.The parties do all acts and things and sign all documents necessary to authorise that the following shall remain in the U Lawyers Account on account of Capital Gains Tax liabilities arising from the sale of the P Street, L Street, R Street and O Street properties pending compliance with Orders 8 and 9:

(a)$318,888 for L Street;

(b)$255,668 for P Street;

(c)$183,393 for R Street; and

(d)$140,044 for O Street.

8.Within three days of the Capital Gains Tax liability arising from the sale of each of the P Street Property, L Street Property, R Street Property, O Street Property and the 2 H Street Property (and if applicable, the 1 C Street Property if the property is to be sold pursuant to the husband’s election), becoming due and payable, the parties do all things and sign all documents necessary to cause the following to be paid, as and when they fall due, from the funds in the U Lawyers Account: 

(a)the Capital Gains Tax liability to be paid in full to the Australian Taxation Office; and

(b)Tax Agent’s expenses associated with preparing the said taxation returns. 

9.For the financial year in which a Capital Gains Tax liability arises from the sale of the P Street Property, L Street Property, R Street Property, O Street Property and the 2 H Street Property (and if applicable, the 1 C Street Property), the following shall apply:

(a)the parties do all acts and things and sign all documents reasonably necessary to have lodged their personal income tax returns for the relevant financial year by no later than 1 October of the year following 30 June in which the CGT event occurs, save that with respect to the tax returns for the financial years ended 30 June 2023 and 30 June 2024 the income tax returns shall be lodged by no later than 31 October 2024;

(b)within 14 days of receiving a Notice of Assessment from the Australian Taxation Office, the parties shall provide the other party with a copy of their income tax return lodged with the Australian Taxation Office for that financial year and a copy of the Notice of Assessment received;

(c)with respect to the P Street Property, L Street Property, R Street Property, O Street Property, 2 H Street Property and if applicable the 1 C Street Property, within a further seven days of either party providing the documents pursuant to Order 9(b) the parties do all acts and things and sign all documents necessary to authorise funds to be released from the U Lawyers Account to pay the capital gains assessed to the Australian Taxation Office; and 

(d)in the event the funds in the U Lawyers Account are insufficient to comply with Order 9(c) then the parties equally pay or cause to be paid to the Australian Taxation Office, the balance of capital gains assessed as and when same falls due.

IT IS FURTHER ORDERED BY THE COURT THAT:

10.In the event that, upon all capital gains tax liabilities and other expenses as set out in these orders as being payable from the U Lawyers Account being paid pursuant to these orders, there are funds remaining in the U Lawyers Account, then those funds shall be split 52.5 per cent to the wife and 47.5 per cent to the husband.

IT IS FURTHER ORDERED BY CONSENT THAT:

11.In the event the parties are unable to agree prior to settlement of the sale of the 2 H Street Property (and if applicable, the 1 C Street Property if the property is to be sold pursuant to these orders at the election of the husband) as to the estimated capital gains tax to be withheld pursuant to Order 3(e) and order 19(d), then the parties do all things and sign all documents necessary to jointly appoint an accountant to calculate the estimated capital gains tax such that it is known prior to settlement of the sale of the 2 H Street Property and for this purpose: 

(a)if the parties are unable to agree on the accountant, the wife within three days of no agreement being reached, nominate three names to the husband and the husband select one from that list within a further three days;

(b)within three days of the husband’s selection, the parties jointly instruct the accountant to calculate the capital gains tax payable with respect to the sale of the 2 H Street Property (and if applicable, the 1 C Street Property if the property is to be sold pursuant to these orders at the election of the husband); and

(c)the cost of the accountant be paid from the U Lawyers Account or in the event there are insufficient funds remaining in the U Lawyers Account, by the parties equally.

T Limited Rights 

12.In the event that the T Limited Rights vest, the Husband in his capacity as trustee for the Westbrook Family Trust cause the following to occur:

(a)upon vesting, the rights be realised as soon as reasonably practicable;

(b)the shares be sold on the ASX within three months of the rights being realised and available to trade;

(c)the proceeds of sale be paid to the Westbrook Family Trust;

IT IS FURTHER ORDERED BY THE COURT THAT:

(d)within 28 days of the proceeds being paid to the Westbrook Family Trust, the Trust distribute the net proceeds received from the sale 52.5 per cent the wife and 47.5 per cent to the husband.

IT IS FURTHER ORDERED BY CONSENT THAT:

(e)each party be solely responsible for their own income tax with respect to the distribution and their share of any capital gains tax arising.

THE COURT FURTHER ORDERS THAT:

13.The husband pay to the wife such additional sum as is necessary to effect an overall division of the parties’ assets (being the items as set out in the table “Annexure A” attached to these orders) in the proportions of 52.5 per cent to the wife and 47.5 per cent to the husband (“the sum”).

Election

14.Within 28 days of these orders the husband elect in writing either:

(a)to pay the wife in accordance with Order 13 herein; or

(b)for the 1 C Street Property to be sold.

Payment to the wife

15.In the event the husband elects to pay the wife, then on or before 90 days from the date of these orders (“the due date”) the husband shall pay the wife (“the sum”).

16.Contemporaneously with the payment of the sum, unless otherwise agreed between the parties in writing, the parties do all acts and things and execute all documents, writings and instruments necessary to cause the following to occur:

(a)the Wife transfer to the Husband the whole of her right, title and interest in the property situate at and known as 1 C Street, Suburb E, New South Wales, being the whole of the land comprised in Folio Identifier ./…… ("the 1 C Street Property"); and

(b)the Husband do all acts and things and sign all documents, writings and instruments necessary to re-finance the mortgage secured against the 1 C Street Property into his sole name, and thereafter indemnify and keep indemnified the Wife in respect of and against all liability under the said mortgage or under the terms of any personal covenant contained thereon for repayment of the amounts secured.

Sale of former matrimonial home

17.In the event:

(a)the husband elects for the 1 C Street Property to be sold, or fails to make an election in accordance with Order 14 the 1 C Street Property be forthwith placed on the market for sale (“the sale”); or

(b)the husband elects to pay the wife but fails to make the whole of the payment by the due date then the 1 C Street Property be placed on the market for sale (“sale in default”).

18.For the purposes of the sale or sale in default, unless otherwise agreed between the parties in writing:

(a)the parties engage the Lawyer to act on the sale of the 1 C Street Property;

(b)the parties appoint the Seller’s Advocate;

(c)the parties confer with the Seller’s Advocate for the purpose of appointing a real estate agent and in the event the parties cannot reach an agreement on the appointment of an agent within two business days of appointing the Seller’s Advocate then the Seller’s Advocate appoint the agent and the parties sign an Agency Agreement within a further 24 hours (“the Agent”);

(d)the parties take into account the recommendations of the Agent and the Seller’s Advocate as to any repairs and improvements to the 1 C Street Property and undertake such repairs as are agreed to between the parties in writing, with the costs to be borne equally by the parties;

(e)the parties appoint Mr CC to style the property for sale, and in this regard the parties do all acts and things and sign all documents necessary to cause Mr CC to style the property as he recommends, with the cost to be borne equally by the parties;

(f)the 1 C Street Property be listed for sale by public auction in 2025, [or in the event of a sale in default, to be listed as soon as practicable following the default] and the auction date is to be agreed by the parties in writing and failing agreement is to be determined by the agent provided that the first auction is to take place within eight weeks of the 1 C Street Property being listed for sale;

(g)the auctioneer, if not a member of the Agent’s firm, shall be appointed by the parties no later than seven days prior to the Auction, and failing agreement, is to be appointed by the Agent, with the costs of that appointment to be borne equally by the parties as and when they fall due;

(h)the costs of marketing the property for sale be borne equally by the parties; 

(i)in the event a prospective purchaser makes an offer on the 1 C Street Property prior to the proposed date for auction, the parties may agree on a price in writing and sell to such purchaser. In the event the parties are unable to agree on a sale price, then the 1 C Street Property is to proceed to auction;

(j)the reserve price for the purpose of the first auction shall be such price as the parties agree upon in writing or, in the absence of agreement reached within three business days prior to the first auction, as nominated by the Seller’s Advocate;

(k)ln the event the bidding at the first auction does not reach the reserve price, the Seller’s Advocate may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not more than five per cent below the reserve price, or at such other price as the parties agree upon in writing.

(l)in the event the 1 C Street Property is not sold at the first auction or contracts for sale are not exchanged within seven days of the said auction and/or settlement for the sale of the 1 C Street Property does not occur as set out in the sale contract, the parties do all acts and things and sign all documents necessary to continue to relist the property for sale by public auction again in three monthly intervals thereafter, and the provisions of Orders 18(a) to (k) (inclusive) shall apply successively until the property has been sold so that at each successive auction the reserve price shall be five per cent less than the reserve price at the immediately preceding auction unless otherwise agreed by the parties in writing;  

Proceeds of sale of the 1 C Street Property

19.On settlement of the sale of the 1 C Street Property the parties do all acts and things and sign all documents necessary to cause the proceeds of the sale of the 1 C Street Property be applied as follows:

(a)first to pay the costs, commissions and expenses of the sale;

(b)secondly to pay any outstanding council and water rates and usual adjustments;

(c)thirdly to meet all costs relating to the discharge of the mortgage secured over the property the current balance of which is $1,568,221;

(d)fourthly the sum on account of estimated capital gains tax with respect to the sale to the U Lawyers Account, to be held pending such liability becoming due and payable and then paid pursuant to these orders, and if the parties are unable to agree to the capital gains tax then the parties appoint an accountant in the same manner as set forth in Order 11 to estimate the capital gains tax and pay that amount to the U Lawyers Account;

(e)fifthly to pay the wife:

(i)such sum as is necessary to effect an overall division of the parties’ assets 52.5 per cent to the wife and 47.5 per cent to the husband; or

(ii)in the event of a sale in default so much of the sum as is outstanding together with interest thereon calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and

(f)the balance paid to the husband.

20.The parties shall each cooperate in every way with the agent and auctioneer with respect to the sale of the former matrimonial home including (without limiting the generality of the foregoing):

(a)making the key available to the agent; 

(b)allowing inspection of the former matrimonial home at all reasonable times requested by the agent and/or the auctioneer;

(c)ensuring the former matrimonial home is in a neat and clean condition at the time of inspection by the agent, auctioneer and/or prospective purchasers; 

(d)refraining from doing or saying anything to hinder or prevent a sale being effected;

(e)signing all documents requested by the Seller’s Advocate and/or the Agent in relation to the listing for sale of the 1 C Street Property within 48 hours of receipt except a contract or agreement for sale which has not been authorised by the Lawyer.

21.Pending the payment to the wife or sale of the 1 C Street Property:

(a)the husband be liable for all utility rates, land taxes and other expenses incurred in relation to the 1 C Street Property; and

(b)the parties are restrained from further encumbering the 1 C Street Property unless otherwise agreed in writing between the parties.

Superannuation

22.Pursuant to section 90XT(4) of the Act, a base amount of $162,984 be allocated to the Wife out of Husband’s interest in Super Fund 1 (“the Fund”).

23.In accordance with section 90XT(1)(a) of the Act:

(a)the Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) using the base amount specified in the immediately preceding order; and

(b)the Husband’s entitlement to payment out of his interest in the Fund is correspondingly reduced.

24.The trustee of the Fund, being Super Fund 1 (“the Trustee”), shall do all such acts and things and sign all such documents as may be necessary to:

(a)calculate, in accordance with the requirements of the Act and the Regulations, the entitlement created for the Wife by Order 23 above; and

(b)pay the entitlement whenever the Trustee makes a splittable payment out of the Husband’s interest in the Fund.

25.Orders 22 to 24 herein have effect from the operative time, and that the operative time for the purpose of these orders is four business days after the date on which a certified copy of the sealed orders is served.

26.Having been afforded procedural fairness in relation to the making of these orders, Orders 22 to 25 of these orders bind the Trustee.

Wife’s retention of assets

27.Unless otherwise provided for in these orders, the wife retain all property of whatsoever nature in her power, possession and control as at the date of these orders, including;

(a)the property situated at J Street, Suburb K, New South Wales, being the whole of the land in Folio Identifier …/….;

(b)all shares, debenture, units and unit trusts, bank, mutual fund, building society or credit union accounts in her sole name;

(c)Motor Vehicle 1;

(d)her jewellery;

(e)the furniture, furnishings and personal effects in her possession;

(f)all artwork in her possession:

(g)the contents of her storage facility;

(h)her superannuation entitlements; and

(i)any employment related entitlements including but not limited to annual leave, sick leave and long service leave.

Husband’s retention of assets

28.Unless otherwise provided for in these orders the husband retain all property of whatsoever nature in his power, possession and control as at the date of these orders, including:

(a)the Westbrook Family Trust and Westbrook Pty Ltd;

(b)all other shares, debenture, units and unit trusts, bank, mutual fund, building society or credit union accounts in his sole name;

(c)Motor Vehicle 2

(d)all artwork in his possession;

(e)the furniture, furnishings and personal effects in his possession;

(f)his superannuation entitlements; and

(g)any employment related entitlements including but not limited to annual leave, sick leave and long service leave

Indemnities

29.Unless otherwise specified in these orders:

(a)the parties shall each remain liable for any debts in his or her sole name as at the date of these orders;

(b)the Husband hereby indemnifies and keeps 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 or in the name of any entity the Husband has an interest in, including but not limited to any tax liabilities which may arise now and in the future in respect of any tax returns lodged on behalf of the Husband or any entity in which he has an interest or in respect of any transaction pursuant to these orders; and

(c)the Wife hereby indemnifies and keeps 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 or in the name of any entity the Wife has an interest in, including but not limited to any tax liabilities which may arise now and in the future in respect of any tax returns lodged on behalf of the Wife or any entity in which she has an interest or in respect of any transactions pursuant to these Orders.

Miscellaneous

30.Unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in possession of such party as at the date of these orders;

(b)monies standing to the credit of the parties in any joint bank account are to be equally divided between the parties and any such account be forthwith closed;

(c)insurance policies remain the sole property of the owner named therein;

(d)each party otherwise retain for their sole use and benefit, their superannuation entitlements;

(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled, pursuant to these orders; and

(f)any joint tenancy of the parties, in any real or personal estate, is hereby expressly severed.

31.All extant applications are dismissed, and the matter removed from the list of pending cases maintained by the Court.

32.The parties have liberty to seek to relist the matter before the Court on at least 48 hours’ written notice to the Court and to the other parties in the event there is a dispute as to:

(a)the terms and conditions of the sale of the 1 C Street Property; or

(b)the calculation of payments to be made pursuant to orders 3(f), 12(d), 13, 19(e)and/or 19(f).

“Annexure A”

ASSETS
1 C Street, Suburb E	7,500,000[1]
Net proceeds of sale of 2 H Street, Suburb E	$TBC
O Street, Suburb N - net proceeds of sale – now held in the U Lawyers Account	$891,942
J Street, Suburb K	$1,665,000
Funds set aside for estimated capital gains tax for L Street and P Street pursuant to orders dated 22 February 2023	$580,000
Balance funds set aside for estimated capital gains tax for R Street pursuant to orders dated 22 February 2023	$10,634
Westpac account #82 – Mortgage Offset for 1 C Street	$91
Husband’s Westpac account #28 as at 2024	$43.93
Husband’s Westpac account #53 as at 2024	$9,827.37
Husband’s ANZ account #46 as at 2024	$2.00
Husband’s ANZ account #54 as at 2024	Nominal
Remainder of O Street rent as at 2024 now held in the U Lawyers Account	E$41,289.39
Wife’s ANZ account #75 as at 2024	$652
Wife’s Westpac account #61	$222
Wife’s ANZ account #26 as at 2024	$12,539
Wife’s shares (500)	$1,815
Wife’s Shares (1780)	$11,908
Husband’s shares (800)	$5,856
Wife’s Westpac account #70 & #36	$184
Westbrook Family Trust – LTIP options vesting 2024	$TBC
Wife’s Motor Vehicle 1	$40,000
Husband’s Motor Vehicle 2	$3,000
Wife’s engagement ring	$11,930
Wife’s bracelet	$11,250
Husband’s artwork	$78,000
Husband’s ornament	$2,650
ADDBACKS
Partial property settlement – wife	$157,325
Partial property settlement – wife	$163,386
Partial property settlement – wife	$500,000
Partial property settlement – wife	$130,000
Interim costs from U Lawyers Account – husband	$150,000
Interim costs from U Lawyers Account – wife	$150,000
LIABILITIES
Westpac loan account #74 (2 H Street) as at 2024	-$326,125.98
Capital gains tax on sale of O Street property (Estimated at $140,044)	TBC
Westpac home loan account #98 (1 C Street) as at 2024	-$1,568,221
Husband’s Westpac credit card account #35	-$39,217.19
Husband’s Westpac credit card account #97	-$19,161
Husband’s NAB credit card account #46 as at 2024	-$26,193.37
Husband’s credit card account #84	-$39,710
Wife’s ANZ account #55	NIL
Wife’s ANZ account #93 as at 2024	NIL
Wife’s account #07 (overpaid)	+$509
Wife’s Car loan	-$32,436
Capital gains tax on sale of P Street Property (Estimated at $255,688)	$TBC
Capital gains tax on sale of L Street property (Estimated at $318,888)	$TBC
Capital gains tax on sale of 2 H Street Suburb E (Estimated at $182,845)	$TBC
Wife’s personal income tax liability for 2023 – including capital gains tax for R Street	-$183,393
Husband’s personal income tax liability for 2024 from contracting work	$TBC
Husband’s personal income tax liability from realisation of vested LTIP rights	$TBC
Loans from Children of Westbrook Testamentary Trust as at 2024 (excluding loans for legal fees)	-$113,570

[1] In the event the husband elects to sell the former matrimonial home rather than retain it, the net proceeds of sale will be used to calculate the parties’ entitlements.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUSTICE CARTER

1. These are proceedings brought by the wife seeking an alteration of the parties’ property interests pursuant to s 79 of the Family Law Act 1975 (Cth).

   Issues to be determined

2. The parties do not agree as to the pool of assets available. Nor do they agree as to the appropriate percentage division of the assets between them.

3. During the running of the trial the parties were able to compromise a number of issues in dispute. At the conclusion of the hearing the following matters remained in dispute:

   Issues in relation to the pool:

   (a)whether the property at 1 C Street, Suburb E is worth $7,500,000 as determined by the single expert (and accepted by the wife) or whether that valuation is flawed and the property is worth a lower amount (as contended by the husband);

   (b)whether any of the part property distributions made to the husband post separation should be notionally added back into the pool in the same manner as had been agreed the wife’s part property distributions were to be treated. The husband claimed that he had used the funds – totalling $308,361 – to make mortgage payments and meet other joint costs associated with the properties. He said accordingly the monies were already reflected in the pool and should not also be treated as partial property distributions to him and notionally added back into the pool;

   (c)whether or not the sum of $184,503 – being rental received and retained by the wife post separation – should be treated as a partial property distribution to her and notionally added back into the pool. The wife acknowledged she received the funds, but said they were expended on living expenses and meeting the children’s needs and accordingly ought not be notionally added back into the pool;

   (d)whether the sum of $117,293 owed by the husband to the Westbrook Testamentary Trust and the interest thereon is a joint liability. The husband’s case was that this is a joint liability as he had to borrow funds from the trust to meet the mortgage repayments and other joint expenses. He said as at the date of separation the parties had borrowed $80,000 from the Trust. Since separation the total amount borrowed ballooned to $313,320. It was the husband’s evidence that he had made repayments leaving a total of $113,570 left to pay.

   Issues in relation to the appropriate assessment of the parties’ entitlements:

   (e)what weight should be given to the husband’s greater initial contributions;

   (f)whether the husband’s post separation contributions exceeded those made by the wife or the wife’s exceeded those made by the husband. It was the husband’s case that the wife retained her income, including rental income, and did not apply it towards joint purposes, whereas he made significant financial and non-financial contributions to the parties’ property portfolio, applying his income to do so. That was disputed by the wife who said the entirety of her income was expended meeting the living expenses for her and the children. She claimed there should be an adjustment in her favour on the basis of her greater contributions substantially post separation to the welfare of the children; and

   (g)whether there should be any adjustment in favour of either party on the basis of the factors set out in s 75(2).

4. It was the wife’s contention that the pool should be divided 65 per cent in her favour. That was calculated based on the wife’s assertions that her contributions should be considered greater than those made by the husband, with a further 10 per cent adjustment in her favour on the basis of the s 75(2) factors. In particular, she asserted the husband had a higher income earning capacity than she, as she is limited by her significant obligations to provide care for the parties’ children.

5. It was the husband’s contention that the pool should be divided 60 per cent in his favour, substantially on the basis of what he asserted were his greater initial and post separation contributions. It was his case that a consideration of the s 75(2) factors did not warrant any further adjustment.

   EVIDENCE

1. The wife relied on:

   (a)her Amended Initiating Application filed 16 April 2024;

   (b)her trial affidavit filed 17 April 2024;

   (c)her Financial Statement filed 27 May 2024; and

   (d)her affidavit-in-reply filed 31 May 2024.

2. The husband relied on:

   (a)his trial affidavit filed 23 May 2024;

   (b)his Amended Response to Initiating Application filed 24 May 2024; and

   (c)his Financial Statement filed 27 May 2024.

3. I also had the benefit of the affidavit annexing the valuation reports and answering questions of the single expert valuer, Mr F.

4. The trial was conducted via Microsoft Teams. Any technical impediments were quickly overcome. I am satisfied the parties were able to participate appropriately and effectively in the hearing. I was well able to hear and understand all the evidence and submissions made.

5. I heard evidence from both parties and from Mr F.

6. I am satisfied the parties gave their evidence to the best of their abilities. They each presented as authentic and genuine.

7. Mr F was also an impressive witness.

   BRIEF BACKGROUND

8. The parties commenced living together in around 2002/2003. At that time the husband owned a property at L Street, Suburb M. The wife moved into that home with the husband. The parties married in 2007.

9. There are three children of the marriage: X who is 16, Y who is 14, and Z who is 11.

10. The parties purchased a number of properties throughout the relationship as follows:

    (a)in 2005 they purchased R Street, Suburb M;

    (b)in 2007 they purchased P Street, Suburb Q;

    (c)in 2007 they purchased 1 C Street, Suburb E; the former matrimonial home;

    (d)in 2008 they purchased 2 H Street, Suburb E; and

    (e)in 2016 they purchased O Street, Suburb N.

11. In 2010, the parties and children moved into the former matrimonial home. It is common ground that the husband worked full time, and that he also worked maintaining the parties’ various properties on the weekends. The wife was accordingly more involved in the children’s care.

12. The husband’s father passed away in 2015. In his will, the paternal grandfather provided for the establishment of the Westbrook Testamentary Trust (“the testamentary trust”), for which the husband is the trustee and the children the sole beneficiaries.

13. In 2017, the family lived in Country DD for a period.

14. In 2018, the husband commenced work as a senior executive for T Limited. The husband’s evidence was that his base salary was $426,000. In addition, he received bonuses in the form of long-term incentive plans (LTIPs) each year which he said was between $100,000 to $180,000 each year. Accordingly, annually he earned between $526,000 to $606,000.

15. In 2020, the husband received an inheritance of $100,000 from his father’s estate. Those funds were paid into the mortgage encumbering L Street.

16. The wife commenced her own business in 2021.

17. The parties separated in October 2021. The wife and children moved into rental accommodation at 1 H Street, Suburb E.

18. In 2021, the husband established the Westbrook Family Trust. The husband is the appointor and trustee and the husband and children are the primary beneficiaries. The only assets of the trust are the unvested LTIP options in T Limited.

19. In 2021, by consent, the husband’s Westpac share portfolio was sold and the proceeds divided equally by way of part property distributions. They each received $157,325.

20. In 2022, the property at 1 H Street, Suburb E, was purchased by the husband as trustee for the testamentary trust. The purchase was funded by the children’s inheritance from their paternal grandfather. The wife and children remained living in 1 H Street until early 2023 when they moved into rental accommodation in Suburb EE following a dispute between the parties as to whether the wife would need to pay rent to the trust.

21. The wife commenced these proceedings in 2022.

22. The husband ceased working with T Limited in 2022.

23. In 2022, the wife purchased a property at J Street Suburb K for $1,655,000 with a further payment of $20,000 for the contents and furniture. The property is unencumbered. The purchase was funded by partial property distributions to her.

24. In 2022, the parties sold the P Street Property, netting $972,002. The sum of $230,000 was paid into a controlled monies account with U Lawyers (“the U Lawyers Account”) to cover the estimated CGT and the balance was divided between the parties nominated as by way of partial property settlement. The CGT arising from the sale has not been paid. The parties estimate that will be approximately $255,668.

25. The parties also sold the L Street property, netting $1,687,848 which was also paid into the U Lawyers Account. The CGT on the sale of that property has not yet been paid. The parties estimate that will be approximately $318,888.

26. In 2023 the R Street property was sold netting proceeds of $902,192. The parties each received $130,000 from the proceeds of sale. The balance of the monies are held on trust in the U Lawyers Account. The monies have been used to pay part of the children’s school fees for 2023. The CGT on the sale of R Street has not yet been paid. The CGT liability, together with the wife’s personal income tax liability attributable to the holding of this property is $183,393.

27. In 2023, by consent, the wife was paid a further part property distribution of $500,000 from the proceeds of the sales of the properties held in the U Lawyers Account.

28. In 2023, the wife relocated to Suburb K with the children.

29. In 2024, the parties each received a further $150,000 from the U Lawyers Account by way of part property distribution.

30. The O Street property has now also sold. The net proceeds of $891,942 are held in the U Lawyers Account. The parties anticipate the sale will attract a CGT liability of approximately $140,044.

31. The sale of 2 H Street will also attract CGT. If it sells for $1,100,000, the anticipated CGT will be approximately $182,800. There will also be sale costs.

    DISPUTES IN RELATION THE POOL

    Value of 1 C Street

32. 1 C Street was the parties’ former matrimonial home. It was purchased in 2007 for $2,080,000. The husband wishes to retain that property as part of his settlement.

33. Mr F prepared a valuation of the 1 C Street Property in 2022 and an updated valuation in 2024. In 2022, Mr F valued the property at $4,500,000. In 2024 – just 17 months later – he valued the property at $7,500,000.

34. In 2024, the husband filed an Application in a Proceeding seeking to adduce evidence from an adversarial expert. That application was dismissed on 26 June 2024 by Campton J. His Honour ultimately determined there was no substantial body of opinion contrary to that given by Mr F; there were not matters not known to Mr F that the proposed adversarial witness knew; nor was there another special reason for adducing evidence from another expert – the husband’s proposed expert “merely expresses a differing opinion”.

35. Pursuant to r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) a series of questions were put to Mr F, which he answered under cover letter dated 2024. That letter was tendered into evidence.

36. The husband challenged the evidence of Mr F.

37. Under cross examination Mr F maintained his valuation of the property was correct. His evidence was, in summary, as follows:

    (a)the property market at the time of the first valuation was positive, bolstered by lower interest rates operation at that time;

    (b)across 2023 and into 2024 increased building and borrowing costs would, in a broad sense, negatively impact developers;

    (c)it was most likely that any purchaser of the former matrimonial home would demolish the existing dwelling and build a prestige home;

    (d)the 67 per cent increase in the value Mr F attributed to the former matrimonial home was significantly above general market trends in Sydney;

    (e)the sale of 2 C Street, even though that sale was yet to be completed, was a sale of a very comparable property. He described the sale of that property for $8,525,000 as a “critical sale” and said it was “as good a comparable sale as you’re going to get”;

    (f)2 C Street had a superior existing and potential view to the rear, less impeded by the units to the rear of the former matrimonial home. That rear view to the ocean – which could be captured by a multi-storey build – was expressed by the selling agent to have been “perhaps the most critical value feature considered by the developer purchasers”. The former matrimonial home – or any building constructed on the land occupied by it – would not have water views. Mr F said that “narrow corridor view” was the only significant difference between the two properties – which otherwise had the same land size and frontage and both properties were located in the same highly sought after enclave;

    (g)although the sale of 2 C Street had not been completed, Mr F maintained it remained highly relevant to the valuation of the former matrimonial home. Whilst there may be an issue with the actual purchaser completing the sale, as settlement of the sale had still not occurred some months after the auction, in Mr F’s view this did not cause him to significantly question the reliability of the sale price. He explained that was because the property was sold at auction, under a competitive process with a number of active bidders. Essentially, this gave Mr F confidence that the successful bid was not an outlier;

    (h)Mr F also considered the sale of 3 H Street Property for $6,700,000 as the property was almost identical in nature to the former matrimonial home. However, Mr F said that property was sold in 2023, and the sale of 2 C Street occurred some 5 months later, in 2024. Additionally, whilst 3 H Street Property had superior improvements and ‘view potential’, the property was of a smaller square meterage than the former matrimonial home. Mr F said that the larger land size of the former matrimonial home was a critical feature;

    (i)the sale of FF Street in 2024 was considered. Mr F said the available data showed that property sold for $7,300,000. Whilst that property featured a larger block of land, Mr F’s evidence was that when valuing properties, one cannot just use the same dollar amount per metre and apply that regardless of the property size. That is, a smaller property may have a higher dollar per meter value than a larger property. Accordingly, whilst FF Street was a block of land about 20 per cent larger than that occupied by the former matrimonial home, it was not simply a matter of the property therefore being valued at 20 per cent more per square meter. Moreover, Mr F described the location of FF Street as “definitely inferior” to that of the former matrimonial home, which he said mitigated the larger land size.

38. In his closing submissions, counsel for the husband asserted that the use of the yet to be concluded sale at 2 C Street as a comparable sale was flawed, and that using the yet to be completed sale meant Mr F was effectively relying on hearsay evidence. He submitted further that the former matrimonial home block was smaller than the property at FF Street, was overshadowed by the units at the rear, and had no water views or potential water views. He asserted these matters when properly considered would reduce the value of the former matrimonial home to $7,000,000 and that would be the appropriate value to use.

39. It is my role to determine the value of the property, having considered all the evidence before the Court. I am satisfied the property is appropriately valued at $7,500,000. Mr F was an impressive witness. He maintained his position as to valuation, articulately explaining his reasons for doing so. Although the sale at 2 C Street had not been completed, Mr F asserted the putative sale price was still relevant as it was the winning bid at a competitive auction with other potential buyers also bidding. He explained that FF Street, whilst a larger block, was in a considerably inferior location. Although 3 H Street Property was quite similar to the former matrimonial home, he emphasised that it was a smaller block. That sale had also occurred in 2023, some nine months prior to the hearing before me. Mr F has had significant valuation experience in Sydney, and in particular Suburb E and its surrounds. He knows the real estate in that particular pocket – and the demands for it – well. I accept his evidence.

    Addbacks

40. The wife has received part property distributions totalling $2,765,711 over the course of the proceedings. It was common ground that $950,711 of those monies would be notionally added back into the pool. The balance of the monies already advanced for the wife’s benefit are reflected in the Suburb K property, which is also included in the pool of assets, as are further amounts advanced for the payment of costs.

41. What was not agreed was:

    (a)whether the rental income of $184,503 received by the wife post separation should also be notionally added back into the pool; and

    (b)whether the partial property distributions paid to the husband totalling $308,361 should be notionally added back into the pool.

    Rental income received by the wife

42. The wife received and retained rental income totalling $184,503 post separation up until early 2023 from the rental paid for P Street, O Street, 2 H Street and the R Street properties. She did not contribute towards the mortgages, or other expenses for the P Street, O Street or 2 H Street properties. It was the husband’s case that this rental income amounted to the wife receiving a premature distribution of joint assets, particularly as the wife was earning a reasonable income when she retained those funds. He argued that accordingly, they were not monies she required to support herself or the children and should therefore be notionally added back.

43. That was disputed by the wife. She said she had historically during the marriage retained those monies. She said the income from R Street was applied towards the mortgage repayments and the additional expenses and outgoings on the property. The rental income she received from the other properties she said was applied to meet the costs of supporting herself and the children. It was her evidence that she expended those monies meeting the reasonable living expenses of herself and the children. That included paying rental of $2,400 per week between about late 2022 and 2023 when she and the children moved to Suburb K. Accordingly, she asserted the funds ought not be notionally added back. It was also her evidence that post separation and at least until 2023 – when she received a further part property settlement of $500,000 – she was very much struggling to meet all the outgoings necessary to support herself as well as meet the children’s needs.

44. I note that the tax incurred by the husband in relation to the rental income is being treated as a joint liability by the parties.

    The husband’s partial property distributions

45. It was the husband’s case that post separation he serviced the mortgages on the parties’ properties to the amount of $623,551 until the date his trial affidavit was filed. That figure was not disputed by the wife. He deposed that as at the date of hearing, he would have paid a further $24,210.

46. It was the husband’s evidence that his income post separation was insufficient to meet the outgoings on the parties’ properties. He said he essentially contributed the partial property distributions he received totalling $308,361 towards the mortgage repayments and to meet a number of other costs and expenses associated with the properties. Accordingly, it was his case that the monies should not be notionally added back, as the monies were largely already reflected in the pool. He said it would also be unfair to include the monies as part of the husband’s ‘keep’ in circumstances where he had not retained the monies for his sole use.

    Determination as to addbacks

47. It is not simply a matter that the Court will add back assets that existed at the date of separation which have been dissipated by the time of the final hearing. It is a matter of discretion whether or not the Court will do so, and addbacks should only occur in circumstances where justice and equity require it. The case law makes it clear that notionally adding assets disposed of back into the pool is the exception rather than the rule. In many cases these issues can be properly considered under s 75(2)(o) of the Act. Parties are not expected to go into a state of suspended economic animation at separation, and reasonable expenditure does not usually fall within the categories of accepted addbacks. Parties are entitled to conduct themselves post separation “in a manner that is consistent with properly getting on with their lives” as set out in C & C [1998] FamCA 143 at [46]. However, as identified by the Full Court in Omacini and Omacini (2005) FLC 93-218 at 79,617, it may be appropriate to notionally add back an item of expenditure in certain circumstances, including where there has been a premature distribution of matrimonial assets.

48. I note that the parties have each earned income post separation, although they each assert that has been insufficient to meet their needs, meet various outgoings and provide for the children.

49. I am satisfied that it is not in the interests of justice to notionally addback either the monies received by the wife by way of rental income, or the monies paid to the husband nominated as partial property distributions.

50. I accept that post separation, the mortgages and other outgoings on the parties’ joint properties have been substantially paid by the husband – save for the mortgage and outgoings on R Street, and some of the outgoings on the former matrimonial home, which the wife met. As set out, it was not in dispute that the amounts paid towards the mortgages encumbering the properties by the husband totalled at least $623,551. In addition, he has been responsible for paying the other outgoings, rates, insurances, upkeep and the like on the parties’ properties (save for R Street and Suburb K, for which the wife has remained responsible).

51. Post separation, and over the last nearly three years the husband’s total gross income was $707,250 as follows:

    (a)his annual salary at T Limited (being from 2021 until 2022) – $426,000;

    (b)contract work– $156,250; and

    (c)contract work– $125,000.

52. The funds distributed to the husband were mingled with his personal income and paid into his credit cards which included his personal expenditure, and the husband was at times vague or evasive about how he had spent monies. However, I accept that much of the $308,361 distributed to him must have been applied to the joint property expenses in circumstances where the husband’s post separation after tax income alone could not cover the costs of all the outgoings on the properties paid by him, as well as to meet his own reasonable living expenses.

53. It would accordingly be inequitable to regard the distributions as comprising part of the husband’s overall property settlement.

54. Having determined not to addback those part property contributions, the application of those monies by the husband to meet the costs of maintaining the properties cannot therefore be regarded as a contribution by him.

55. In relation to the rental income received by the wife, I accept her evidence that she used those funds to meet the reasonable living expenses of herself and the children in circumstances where post separation she struggled at times to meet those costs. The wife was not challenged in any meaningful way in relation to the considerable expenses she incurred on behalf of the children, and it was not in dispute that the husband had not provided the wife with any child support.

    Funds owed to the testamentary trust

56. It was the husband’s assertion that post separation, a total of $313,320 had been borrowed from the testamentary trust and applied to joint liabilities including the payment of mortgage expenses.

1. It was not in dispute that these funds had been withdrawn by the husband from the testamentary trust’s bank account. It was also not in dispute that the husband had drawn loans from the testamentary trust to meet his legal fees. The amounts applied towards legal fees have quite properly been excluded from the monies the husband asserts are jointly owed.

2. It was the husband’s evidence that the parties first utilised the testamentary trust monies pre‑separation. He said in 2021, the parties borrowed $80,000, which had not been repaid at the time of separation. The husband said this was at the wife’s insistence. However, the wife disputed that, and said she was not aware of his intention to obtain the funds prior to him doing so. The husband said he had continued to access the funds post separation to assist with ‘cash flow’ issues.

3. It was the husband’s evidence that repayments of around $279,750 had been made, leaving an outstanding liability of $113,570. It was his case that the funds had been borrowed to make payments towards the parties’ properties and other joint expenses, and accordingly, the liability should be treated as joint.

4. The wife did not agree. She did not accept that the husband’s income post separation was insufficient to meet the costs of the various properties and asserted that the husband alone should be responsible for repaying the trust. Counsel for the wife pointed to the husband’s pattern of intermingling the funds withdrawn by him from the testamentary trust with his own monies – paying the funds into his operating accounts and using them to repay credit card liabilities that included his general living costs and expenses personal to him. For instance, he took four international holidays post separation.

5. I accept that funds had been withdrawn from the testamentary trust in 2021, prior to separation. Whilst the wife deposed that she did not know how the husband had spent the $80,000 that had been withdrawn pre-separation, he was not meaningfully challenged in relation to his evidence that the monies had at that time been used by the parties to meet expenses.  Accordingly, I accept it was effectively a joint debt to the testamentary trust as at the date of separation.

6. The liability to the testamentary trust as at the date of trial was $113,570, $80,000 of which was owed as at separation. The net liability to the testamentary trust has therefore increased by $33,570. I accept that whilst intermingled with the husband’s personal income and paid into in his personal bank accounts and credit cards – which he also used for personal expenses – given the husband’s post separation income and the costs of maintaining the parties’ property portfolio, those monies must have been substantially applied to assist with the mortgage repayments and other expenses in relation to the parties’ properties. Accordingly, I am satisfied that the monies owing to the testamentary trust is a joint liability and shall be included as such in the pool.

7. The husband did not adduce any documentary evidence to support his claim that he owed the testamentary trust interest on the monies he borrowed. He did not depose to interest accruing in his trial affidavit. In the table he included in his trial affidavit the husband did not indicate that interest was accruing. The husband’s outline of case referred to the figure of $5,000 as the husband’s “[e]stimate calculated at interest rate of 5% per annum based on average amount of loan. Full calculation to be provided.” No calculation was provided. No evidence was adduced as to the terms of the loan. There was no evidence that any of the repayments made so far included any repayment of interest. In those circumstances I am not prepared to include the husband’s asserted interest as estimated as a liability of the parties.

   ASSETS, LIABILITIES AND FINANCIAL RESOURCES AS AT THE DATE OF FINAL HEARING

8. The matter returned for mention on 11 October 2024 for counsel to peruse my draft orders substantially to ensure the mechanics were workable. At that time, a relatively minor dispute arose regarding the inclusion of taxation liabilities when determining the pool available for division. It was asserted by counsel for the wife that if the husband’s 2024 personal income taxation liability was included in the pool the wife’s liability should be similarly included. Alternatively it was argued, they ought both be excluded.

9. Both propositions were opposed by counsel for the husband.

10. The updated joint balance sheet provided at the conclusion of the final hearing did not make any reference to the wife’s 2024 personal income tax as a joint liability. However, it did include the husband’s 2024 personal income tax as a line item. The husband had provided an estimate of that liability at $60,625 in the column “respondent’s value”. In the wife’s column, the value of that liability was recorded “NK”. This was different to other line items which the wife contended should be omitted from the balance sheet. In relation to those items the applicant’s value column recorded “excluded” or “nil” as her contention as to how the asset or liability should be treated.

11. In his closing submissions made on 17 July 2024, counsel for the wife did not make any meaningful submissions in relation to the treatment of the husband’s 2024 personal income taxation liability or whether it should be or should not be included. The matter was not addressed by counsel for the husband, either, during his closing address.

12. In all those circumstances, I understood it was agreed that the husband’s 2024 personal taxation liability would be included when calculating the pool, with the precise figure to be ‘slotted in’ when the taxation return was completed.

13. It may be that there is some inequity to the wife if the husband’s 2024 personal income tax liability is included, and the wife’s excluded when calculating the net pool. However, it would be inappropriate for me to allow the wife at a mention, well after the close of evidence, to effectively make an oral application without notice to the other party that her 2024 liability also be included. I also do not know what the liability is estimated to be. Similarly, it would be unfair to the husband to allow submissions to be made at the mention as to why his liability – previously reflected on the joint balance sheet – should be excluded. Counsel for the wife had the opportunity to make those submissions at trial and did not do so.

14. In circumstances where on the face of the amended joint balance sheet it did not appear to be in dispute that the husband’s 2024 liability would be included (it just was not known what the amount would be), and where there were no submissions made by counsel for the wife as to why it was not to be included, the liability will be included.

    Amounts to be confirmed

15. There are a number of items which are yet to be determined but which the parties agree should be included in the pool of assets. For instance, the parties have now agreed to sell 2 H Street, Suburb E. The net proceeds of sale are not yet known. Nor have the precise capital gains taxation figures been calculated from the sales of a number of the parties’ properties. Similarly, the value of the unvested T Limited shares, and any taxation liability arising from the realisation of those vested LTIP rights were not yet known. The parties agreed, however, that each of those amounts ought be included in the pool for the purposes of calculating each parties’ entitlements.

16. Accordingly, I am satisfied the following reflects the parties’ assets, liabilities and financial resources as at the date of the hearing.

    
    

ASSETS
1 C Street, Suburb E	7,500,000[2]
Net proceeds of sale of 2 H Street, Suburb E	$TBC
O Street, Suburb N - net proceeds of sale – now held in the U Lawyers Account	$891,942
J Street, Suburb K	$1,665,000
Funds set aside for estimated capital gains tax for L Street and P Street pursuant to orders dated 22 February 2023	$580,000
Balance funds set aside for estimated capital gains tax for R Street pursuant to orders dated 22 February 2023	$10,634
Westpac account #82 – Mortgage Offset for 1 C Street	$91
Husband’s Westpac account #28 as at 2024	$43.93
Husband’s Westpac account #53 as at 2024	$9,827.37
Husband’s ANZ account #46 as at 2024	$2.00
Husband’s ANZ account #54 as at 2024	Nominal
Remainder of O Street rent as at 2024 now held in the U Lawyers Account	E$41,289.39
Wife’s ANZ account #75 as at 2024	$652
Wife’s Westpac account #61	$222
Wife’s ANZ account #26 as at 2024	$12,539
Wife’s shares (500)	$1,815
Wife’s Shares (1780)	$11,908
Husband’s shares (800)	$5,856
Wife’s Westpac account #70 & #36	$184
Westbrook Family Trust – LTIP options vesting 2024	$TBC
Wife’s Motor Vehicle 1	$40,000
Husband’s Motor Vehicle 2	$3,000
Wife’s engagement ring	$11,930
Wife’s bracelet	$11,250
Husband’s artwork	$78,000
Husband’s ornament	$2,650
ADDBACKS
Partial property settlement – wife	$157,325
Partial property settlement – wife	$163,386
Partial property settlement – wife	$500,000
Partial property settlement – wife	$130,000
Interim costs from U Lawyers Account – husband	$150,000
Interim costs from U Lawyers Account – wife	$150,000
LIABILITIES
Westpac loan account #74 (2 H Street) as at 2024	-$326,125.98
Capital gains tax on sale of O Street property (Estimated at $140,044)	TBC
Westpac home loan account #98 (1 C Street) as at 2024	-$1,568,221
Husband’s Westpac credit card account #35	-$39,217.19
Husband’s Westpac credit card account #97	-$19,161
Husband’s NAB credit card account #46 as at 2024	-$26,193.37
Husband’s credit card account #84	-$39,710
Wife’s ANZ account #55	NIL
Wife’s ANZ account #93 as at 2024	NIL
Wife’s account #07 (overpaid)	+$509
Wife’s Car loan	-$32,436
Capital gains tax on sale of P Street property (Estimated at $255,688)	$TBC
Capital gains tax on sale of L Street property (Estimated at $318,888)	$TBC
Capital gains tax on sale of 2 H Street Suburb E (Estimated at $182,845)	$TBC
Wife’s personal income tax liability for 2023 – including capital gains tax for R Street	-$183,393
Husband’s personal income tax liability for 2024 from contracting work	$TBC
Husband’s personal income tax liability from realisation of vested LTIP rights	$TBC
Loans from Children of Westbrook Testamentary Trust as at 2024 (excluding loans for legal fees)	-$113,570

[2] In the event the husband elects to sell the former matrimonial home rather than retain it, the net proceeds of sale would be used to calculate the parties’ entitlements rather than the figure of $7,500,000.

Superannuation

1. The parties also have superannuation entitlements as follows:

SUPERANNUATION
Super Fund 1 as at 2024 – husband	$883,525
Super Fund 2 – husband	$6,025
Super Fund 3 (as at 2024) – wife	$618,364
Super Fund 4 (as at 2024) – wife	$21,698
TOTAL	$1,529,612

IS IT JUST AND EQUITABLE THAT AN ORDER BE MADE?

1. Having identified the parties’ existing assets and liabilities, I must determine whether pursuant to s 79(2) of the Act it is just and equitable for any order to be made adjusting the parties’ interests in that pool. This is a separate enquiry to that set out in s 79(4). There is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them only on the basis of the considerations in s 79(4).

2. The parties in this matter agree that it is just and equitable that an order be made. However, I must be satisfied of that myself.

3. In my view, this is one of the “vast majority of cases” referred to by the plurality of the High Court in Bevan v Bevan (2013) 279 FLR 1 at [164] in which the requirements of s 79(2) of the Act are fairly readily satisfied. It is plainly just and equitable to make an order pursuant to s 79 of the Act in these proceedings for a division of property between the parties. The marriage was long and produced three children. The parties intermingled their finances, and both made significant contributions to property and to the family that would not be appropriately recognised in the event no orders were made.

   SECTION 79(4) OF THE ACT

4. In determining what orders are to be made pursuant to s 79(4), I must weigh and assess all of the contributions made by the parties, from all sources. I must then translate that into a percentage of the parties’ property pool, giving a “reasonable value to all of the elements that go to making up the entirety of the marriage”; see Baker and Rowlands JJ in Aleksovski v Aleksovski (1996) 135 FLR 131 at 139 and Kay J at 147. This is an holistic, and not a mathematical exercise – and part of my “further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship”; Dickons v Dickons (2012) 50 Fam LR 244 at [21] and [24].

5. There is no presumption of equality of division of property, not even in a long relationship, and in each case the contributions of each party must be assessed on their own facts; Mallet v Mallet (1984) 156 CLR 605.

   Initial contributions

6. It is the husband’s case that his initial contribution were greater than those made by the wife. He said he had equity in L Street of $350,000, shares of about $100,000 and superannuation of about $26,000.

7. The husband had purchased L Street in 1999 for $450,000, a few years prior to the commencement of cohabitation. The husband claimed the property was ‘unliveable’ and required substantial renovations which he then undertook before the wife moved in with him there in around 2003.

8. The husband asserted the mortgage was about $350,000 at the time the parties commenced living together and that the property was then worth $700,000 as a result, he says of improvements he made to the property which increased its value in the four years prior to the parties’ commencing cohabitation.

9. The wife also gave evidence that she undertook some physical labour on the property in preparation to moving in, some of which was acknowledged by the husband. However, he insisted he undertook the majority of the work.

10. The husband’s estimate as to the value of the property as at the commencement of cohabitation was not agreed. There was no expert evidence as to the value of the husband’s equity in that property at the relevant time or of the effect the work undertaken by him might have had on its value.

11. What is missing is a retrospective valuation. In the absence of that, I cannot be satisfied that the property had increased in value to the extent asserted by the husband. The newspaper clippings tendered by the husband from 2002 do suggest that as a general proposition the housing market in Sydney had significantly improved. However, general statistical trends do not assist in determining the precise value of a particular property.

12. I do accept, generally, that the work undertaken by the husband prior to commencing a relationship with the wife is likely to have led to the value of the property having increased, and it is likely that market forces would have resulted in the property rising in value. I do not regard it as necessary to determine precisely the value of the property as at the commencement of the relationship – or whether the husband’s equity in the property was $100,000 as the wife asserted or $350,000 as he asserted. I also do not regard it as necessary to determine who undertook what specific works to renovate the property. My assessment of contributions is not a mathematical assessment where I attribute a dollar amount or a percentage to each component of contributions made.

13. I am satisfied that the husband had commenced working on the property before the parties commenced their relationship, which would have had a positive effect on the value of the property, and that thereafter, both parties worked on the property.

14. I am satisfied that the property at L Street had equity of in excess of $100,000 as at the time the parties commenced cohabitation.

15. In addition, the husband said he had a share portfolio worth approximately $100,000. The wife did not recall the husband having such an extensive share portfolio, asserting he had only been working for a few years at that time, and had spent many months travelling overseas. The value of the husband’s shares was not the subject of any significant challenged by the wife during cross examination.

16. It was the wife’s evidence that she had modest savings of around $60,000 (which the husband disputed), shares worth around $6,000, together with superannuation of around $250,000 at the commencement of the parties’ relationship. She estimated the husband’s superannuation entitlements were around $300,000.

17. I accept that both parties did have superannuation entitlements. I note the husband conceded the parties’ superannuation entitlements at the commencement of their relationship would have been similar. However, it seems unlikely that by 2002/2003 either party had amassed superannuation of anything like the amounts nominated by the wife. Given the length of the marriage and the myriad of contributions, I do not regard it as necessary to determine the parties’ precise superannuation entitlements at the commencement of the relationship.

18. I am satisfied that the husband’s initial contributions outweighed those of the wife – with him bringing in equity above $100,000 in L Street and his share portfolio. Whether the husband’s total initial non–superannuation contributions were $110,000 (as asserted by the wife) or $450,000 as asserted by the husband – or somewhere in between – that initially superior contribution must be considered in the context of the myriad of contributions made by both parties over the course of the parties’ long marriage that produced three children. I accept that the husband subsequently liquidated the shares he had at the commencement of the relationship, together with other shares in about 2007 to complete the purchase of the former matrimonial home. All contributions need to be weighed collectively, and it would be, as observed by Harper J in Dovgan & Dovgan [2021] FamCA 306 at [347], “an error to segment or compartmentalise the various contributions and weigh one against the remainder”.

    Contributions during the marriage

19. In their trial material both of the parties were critical of the other’s behaviours and priorities during the marriage. They each painted themselves as working harder, being more frugal, financially more responsible and providing more – and better – care for the children than the other. However, it became apparent through cross examination that it was not in dispute that the parties both worked hard during the course of their relationship – contributing their incomes and their time and efforts to the household, the properties and the care of the children.

20. The husband contributed his income and undertook repairs and maintenance on various properties. In addition, when he was not working full time, he provided care for the parties’ children and participated in household duties.

21. The wife also worked in paid employment for much of the relationship and contributed her income from those endeavours. She also provided primary care for the children for much of the relationship and attended to the bulk of the parental and home-maker duties.  I accept she also undertook work maintaining and improving the parties’ various investment properties.

22. Although the parties each dedicated part of their trial material to depose what they each asserted was a greater contribution on their own behalf during the cohabitation, through their counsel they each essentially conceded – save for an inheritance of $100,000 received by the husband late in the relationship – that their contributions throughout this phase of their relationship could be treated equally. I agree.

1. The husband’s inheritance, received in 2020 was about $100,000. Those monies were paid into the mortgage encumbering L Street.

   Contributions post separation

2. It was the husband’s case that post separation he continued to make substantial financial contributions to the parties’ assets, including making mortgage repayments of over $623,000. As already determined, he used the $308,361 distributed to him to do so and the additional funds drawn from the testamentary trust, thereby more than halving that asserted financial contribution.

3. In addition, the husband said he met other expenses, such as rates, insurances and taxation on the parties’ properties – applying his salary and the proceeds of the sale of shares to do so. His evidence was that he also undertook repairs and renovations to a number of the parties’ investment properties, including preparing and readying them for sale. The wife conceded that the husband undertook a lot of manual labour on the properties as he was not engaged in paid employment. I note further that the value of the former matrimonial home increased significantly during the period the husband continued to meet the payments on it.

4. I accept that the husband met the mortgage repayments and most other outgoings in relation to the parties’ properties post separation – save for the R Street property, which the wife retained responsibility for. I also accept that he undertook work on the properties to ready them for sale.

5. As set out, much of the funds he received by way of part property settlement and the funds from the testamentary trust must have been applied towards the mortgages and other expenses. As those monies were effectively joint monies (or in the case of the monies drawn from the testamentary trust a joint borrowing), the payments from those sources cannot be regarded as financial contributions on behalf of the husband. However, the costs of servicing the mortgages, maintaining the properties, meeting the additional outgoings and readying the properties for sale exceeded the monies the husband had from the parties’ joint assets. He must also have applied his personal income, and exertion. These are significant post separation contributions on his behalf.

6. I do not agree with the husband’s assertion that the wife’s post separation contributions were less than his. The wife made direct financial contributions towards R Street, until it was sold, meeting the mortgage payments, rates and insurances. The wife also made contributions towards the insurance on the former matrimonial home. I also accept the evidence of the wife that she undertook work to prepare the L Street and R Street properties for sale.

7. In addition, the wife continued to provide the children with primary care for much of the post separation period. She arranged her work hours to minimise the time she was not available to care for them outside school hours. It was her evidence that the children spent about four nights a fortnight with their father prior to moving to Suburb K – although I accept that on occasion Y spent additional time in her father’s care. The children’s time with their father has reduced further since their move. Indeed, since relocating to Suburb K, the wife has borne the vast majority of the caring responsibilities for the children, and the costs of supporting them.

8. In mid-2022 Y was diagnosed with autism spectrum disorder and anxiety disorders. It was the wife’s evidence that as a result Y requires additional care from her on a daily basis to get ready for school, and again to undertake her homework after school.

9. In addition to providing physical care for the children, the wife has also met the majority of the children’s day to day expenses post separation. That included meeting their living expenses, housing expenses, clothing needs, school trips, tutoring, medical and allied health expenses, health insurance, extra curricula activities and some of the children’s school fees. She said the costs for the children were significant in the context of Y being autistic and X having attention deficit hyperactive disorder and another condition. Y has been engaged with multiple treators. X attends regularly upon a psychiatrist and psychologist.

10. The husband conceded that he had not paid the wife any child support.

11. These are significant contributions on the wife’s behalf. I do note, however, that the wife had the use of the rental proceeds which she said she applied to support both herself and the children – and I take this into account when weighing and considering the wife’s post separation contributions.

12. The husband’s case was that he had lived frugally post separation, funnelling most of his income into preserving the property portfolio. He was critical of the wife failing to pay rent to the testamentary trust whilst living at 1 H Street for four months in late 2022/early 2023. When she relocated to rental accommodation in Suburb EE, the husband was critical of the wife paying $2,400 per week by way of rental.

13. I do not make the same criticisms of the wife;

    (a)the wife initially rented 1 H Street living there with the children post separation. It was at that time owned by unrelated parties. The husband then purchased the property on behalf of the children through the testamentary trust in late 2022. The wife ceased paying rent of $1,000 per week when she learned it had been acquired by the testamentary trust;

    (b)in around late 2022, in light of the wife’s failure to pay rent, the husband had a termination notice prepared. His explanation was that as trustee of the testamentary trust, he had to ensure the children’s best interests were being met, and that the wife’s failure to pay rent was problematic. Of course, that position overlooked the reality that the children were living in the primary care of the wife in that property. The wife by then had determined to relocate herself and the children and moved out of 1 H Street into rental accommodation in Suburb EE;

    (c)the husband deposed that the bond paid by the wife towards 1 H Street was “correctly withheld by the trust … given the rental arrears”;

    (d)the rental the wife was able to secure in Suburb EE was for $2,400 per week. I accept the wife had to find accommodation promptly, in an area that would enable the children to remain at their schools and be reasonably proximate to her practice.

14. I am also of the view that the husband somewhat exaggerated his level of impoverishment post separation. For instance, he deposed that he no longer engaged in his preferred pastimes, and that he “live[d] simply with limited outgoings”. Under cross examination he admitted he had remained financially able to maintain one of these activities but had been referring to his inability to set aside time to undertake it. Similarly, under cross examination the husband admitted to having had several international holidays.

    RELEVANT CONSIDERATIONS PURSUANT TO SECTION 75(2) OF THE ACT

15. The husband is 54 years old. The wife is 53 years old. Both are in good health and neither have re-partnered.

16. The husband is a finance professional. He is currently not in employment. He deposed to having worked full time throughout most of the relationship in senior executive leadership roles. The husband’s income, when he was a senior executive at T Limited was $426,000. In addition, he received share rights. The husband resigned from T Limited in 2022, and it was his evidence that he had been unable to gain permanent employment since then.

17. The husband asserted he had been actively looking for employment in roles remunerated around $350,000 plus bonuses. He deposed that after finishing with T Limited he had made multiple applications, and received no job offers, save for securing two contracts. He worked with a company for five to six months – earning $156,250 gross. He said that role came to an end as he was employed for a specific purpose that he was unable to achieve. He had also undertaken some contract work with another company, earning $125,000 gross. The husband said he was now applying for jobs with a starting salary of around $250,000 per annum.

18. The husband’s explanation for leaving T Limited – being that management was unhappy he was prioritising his commitments to his children over his employment – was not particularly persuasive. Whatever the reason, the fact is he resigned. It was not put to him that his resignation was for some strategic purpose in relation to a property division. The husband deposed that his understanding as to why he had not been successful in securing longer term employment since leaving T Limited was a combination of his age, the length of time since he resigned from T Limited, and his parenting responsibilities. I do not accept that the parenting arrangements will impact on the husband’s ability to find work as he provides care for the children on alternate weekends and holidays.

19. The wife was sceptical regarding the husband’s assertions as to his lower income earning capacity. I note the husband had deposed to earning more than the wife throughout the relationship. There was also some suggestion by the wife that the husband continued to have some relationship with T Limited – as his artwork remains ‘on loan’ to T Limited where is it on display. The husband denied this suggested any ongoing relationship and that the painting was there as it was ‘safe and secure’.

20. Whilst the husband had at times been able to secure employment with generous remuneration, I accept it has been some time since he was employed on a permanent basis. I have no expert evidence as to the impact of that, or the husband’s age, on his employment prospects. However, I accept he has been actively searching for work, and is now considering employment with less generous remuneration of around $250,000 per annum.

21. The wife provides the primary care for the parties’ children, who are all attending school full time. X is in Year 10, Y is in Year 9, and Z is in Grade 6.

22. The wife is a medical professional. She works Mondays and Tuesday running her business in Sydney. Her mother cares for the children in Suburb K overnight on Mondays whilst the wife is in Sydney.  The wife also works for another employer– although she took a break from that work from about mid-2023 and has recently returned. Shifts for her employer are undertaken either onsite, or from home, online.

23. Under cross examination the wife conceded that:

    (a)according to her 2023 taxation return she earned approximately $85,990 from her employer and about $44,000 from her business, after expenses; giving her an income of around $130,000 from employment; and

    (b)according to her 2022 return she earned approximately $90,000 from her employer and about $82,000 from her business, after expenses, giving her an income or around $170,000 from employment.

24. I accept that the wife’s income exceeds the $119,000 she deposed in her Financial Statement.

25. It was the husband’s case that the wife was choosing to work less hours than she could, and that her earning capacity was far greater than she deposed – and higher than his earning capacity.

26. It was the wife’s evidence that she is unable to increase her hours of employment as a result of her caring responsibilities for the children in circumstances where X is diagnosed with ADHD and another condition, Y has been diagnosed with autism, and the youngest child is 11. It was the wife’s evidence that Y has high needs and requires constant attention and assistance. She said when Y struggles with schoolwork, she becomes dysregulated, and exhibits violent and verbally abusive behaviours. The wife deposed that in around 2023 she increased her work hours, which negatively impacted Y’s distress levels.

27. I accept that the demands of caring for the children are significant, and that this does limit the wife’s ability to generate an income. However, I do not accept the suggestion that the wife is unable to do any further paid work during the hours the children attend school. She has not really explored potential options which might include operating a business closer to where she and the children are living and/or working online which she could do from home. The wife said she does some work online from her work premises but did not feel she could do that from home because of potential online security risk issues. She conceded that if this could be securely undertaken, she could work online from her home in Suburb K whilst the children were at school. Even if she does take on additional work, however, she has historically earned less than the husband – and less than the $250,000 per annum he now hopes to earn.

28. In the event the husband is able to secure employment I anticipate he will make financial contributions towards the children. He is not currently providing any child support to the wife – but that appeared to be in part because the wife had not sought contributions from him and there is no assessment in place.

29. Whilst I have notionally added back the wife’s partial property payments as agreed between the parties as being the appropriate way in which to treat those payments, I note the wife’s evidence that some of those monies have been used by her to meet the costs of supporting the children. This was in circumstances where there was no child support assessment in place, and no child support being paid by the husband to the wife. I am of the view that the justice of the case also requires me to take this factor into account.

    ASSESSMENT OF CONTRIBUTIONS AND PROSPECTIVE NEEDS

30. As observed, in assessing the parties’ contributions I must take an holistic approach, and give a reasonable value to the whole range of the parties’ contributions throughout the course of the relationship and post separation.

31. I am satisfied that the husband’s initial contributions were greater than those made by the wife, as already outlined. Those greater initial contributions are weighed in the context of all the other contributions made by the parties over their cohabitation of around 20 years, which produced three children.

32. The proceeds of the sale of shares the husband had at cohabitation were later applied towards the purchase of the former matrimonial home. The husband also contributed his inheritance monies for the benefit of the family towards the end of the parties’ relationship.

33. Throughout the relationship I am satisfied the parties both worked hard – making financial and non-financial contributions, as well as homemaker and parent contributions, which I have already outlined.

34. Post separation the husband has been largely responsible for ensuring the mortgages and other outgoings have been paid for much of the parties’ property portfolio. As already determined, I have not added back the partial property distributions made to the husband, and therefore the entire payments towards the mortgages cannot be regarded as contributions by the husband. Similarly, as I am treating the outstanding liability to the testamentary trust as joint, any payments made to the properties from those funds post separation cannot be treated as contributions by the husband.

35. However, I am satisfied that the husband has made financial contributions to the parties’ property portfolio post separation over and above the payment of the interim distributions to him. He has also worked to improve the properties and ready them for sale.

36. The wife has made the greater parenting contribution, having the primary care of the children. She has also met the majority of the costs of caring for the children – including meeting the costs of their activities, medical and allied health costs and school fees. As set out she has also made financial and non-financial contributions towards the parties’ properties post separation. The wife did have the benefit of the rental income to meet part of those costs. However, she has applied her own income and part of her partial property settlements to do so, in the absence of regular child support being provided by the husband.

37. Having regard to the totality of the nature and quality of the parties’ respective contributions of all kinds by both parties across the duration of their relationship and post separation, I am satisfied these can be treated as equal.

38. In terms of s 75(2) factors in so far as they are relevant, I am satisfied these favour the wife and that it is appropriate there be a modest adjustment in her favour.

39. The wife remains the primary carer for the children. I accept that the wife cannot work full time as a result of her caring responsibilities for them. I also accept that the wife’s commitments to the children are significant when they are in her care. However, I do not accept that the wife is unable to work any more hours than she currently does whilst the children are at school. The wife’s ability to work additional hours – and her income earning capacity – will likely further increase as the children grow older and become more independent.

40. Prior to 2022, the husband demonstrated a significantly superior income earning capacity to the wife every year of their relationship – save for the year the parties took an extended family holiday to Country DD during which time the wife received long service leave payments. If the husband remains unemployed, the wife will continue to be wholly financially responsible for the parties’ children. The costs of caring for them are significant. The husband remains hopeful he will gain employment although his evidence is he does not expect to earn as much as he did previously. It will likely still be more than the wife currently earns.

41. I do not agree that the testamentary trust can be regarded as a financial resource of the husband. Whilst the husband has borrowed funds from the account, I am satisfied that any monies borrowed have to be repaid.

42. There are sufficient funds available in the pool such that both parties will maintain a standard of living that is reasonable.

43. The Full Court in Van der Linden & Kordell [2010] FamCAFC 157 observed, at [90]:

    90.As this Court has often recognised (eg see Steinbrenner & Steinbrenner [2008] FamCAFC 193, at paragraph 234), given that the assessment of the relevant factors arising under s 75(2) of the Act inevitably moves from a “qualitative evaluation” of those factors to a “quantitative reflection of such evaluation, there will inevitably be a ‘leap’ from words to figures”. That is the nature of the exercise of discretion.

44. It is my assessment that the wife should receive an adjustment in her favour such that the parties’ asset pool shall be divided 52.5 per cent to her and 47.5 per cent to the husband.

    ORDERS TO BE MADE

    Orders by consent

45. As at the conclusion of the hearing, the property at O Street had been sold, and interim orders were made by consent for the proceeds of the sale to be paid into the U Lawyers trust account. The parties were also able to provide a joint minute of orders to be made by consent regarding the sale of 2 H Street, and the mechanism for the calculation and payment of CGT.

46. Although not included in the parties’ proposed orders by consent, it was apparent that they also appeared to be substantially in agreement that each will retain any assets in his or her possession, including artworks, motor vehicles, jewellery and chattels.

47. A comparison of the parties’ proposals as set out in their orders sought made it plain that they also substantially agreed in relation to the imposition of indemnities. They each proposed slightly different wording – but the proposals were essentially conceptually the same. In circumstances where no submissions were made by either counsel as to which wording was preferable or why, I have simply adopted the wording proposed by the wife as she is the applicant.

    Orders of the Court

48. Given the number of assets and liabilities the value of which is not currently known, it is not possible for me to articulate a precise dollar figure that the husband shall pay to the wife in order to achieve the percentage division of the tangible pool that I have determined is appropriate in all the circumstances. Once many of the amounts that are currently unknown become known, that figure can then be calculated.

1. In circumstances where the husband asserted the former matrimonial home was overvalued by the expert – a contention that I have rejected – it seems appropriate in my view that the husband be given the option to elect whether he will retain that property and make a payment to the wife, or whether the property should be sold.

2. As noted, in the event the property is sold at the election of the husband, then the net proceeds of sale will be used when calculating the parties’ overall entitlements.

3. At the further mention of the matter on 11 October 2024 there was some dispute as to the mechanism for fixing a reserve price in the event of a sale. Counsel for the husband proposed the reserve be fixed at $7,500,000, on the basis that I had determined that to be the value of the property. Counsel for the wife said the reserve should be as agreed and failing agreement, as nominated by the selling agent.

4. I am not prepared to fix the reserve at $7,500,000 for the following reasons;

   (a)The husband’s proposed orders which were provided at the conclusion of the trial provided that in the event of a sale of the former matrimonial home, the reserve be as agreed and failing agreement as nominated by the agent;

   (b)That mechanism for the fixing of a reserved price in default of agreement was proposed by the parties in relation to the sale of the 2 H Street Property to be made as an order by consent;

   (c)The hearing before me was in July 2024. The sale will be conducted in 2025. It does not appear to me to be appropriate to bind the selling agent as to the reserve price as it is not known what changes may have occurred in the market between the final hearing and the auction date; and

   (d)The orders for sale that I am making include if there is a sale in default. If that was the basis for the sale, it is not known when that might occur. Again, the market may have changed at that stage and fixing the reserve as at the amount I have determined as at the date of the final hearing may be inappropriate.

5. The parties did not agree as to the terms on which payment would be made to the wife in the event he retained the former matrimonial home.

6. It was the husband’s case that he required two years over which to arrange finance to purchase the wife’s interest in the former matrimonial home. The wife sought payment far more promptly.

7. The parties’ financial relationship needs to come to an end. Giving the husband two years to obtain refinance requires the parties to remain financially tethered for a further protracted period. It places the wife in the situation where she is waiting for her funds. I have to do justice and equity to both parties, and I am not satisfied that an arrangement whereby the wife must wait a further two years to receive her entitlement is appropriate.  

8. I am satisfied that the refinancing should occur promptly upon the making of the final orders and that payment should be made within 90 days of the making of these orders.

9. In the event the property is to be sold, I am satisfied the parties should jointly be involved in the conduct of that sale. There was no evidence at trial that would suggest one or other party should have sole conduct of the sale. They have worked reasonably cooperatively to sell the other properties in their portfolio. At the mention of this matter on 11 October 2024 the parties indicated through counsel that if the husband elects for the property to be sold, it should be listed for auction in 2025. That appears a sensible date.

   Superannuation

10. It was the husband’s position that the parties’ superannuation entitlements should be equalised.

11. It was the wife’s position that the parties’ superannuation should be divided 65 per cent to her and 35 per cent to the husband – being a division in the same proportions that she contended for the tangible pool.

12. I am satisfied that it is appropriate to divide the parties’ superannuation entitlements in the same percentages as the tangible pool. The wife’s caring responsibilities towards the children in my view do impact on her ability to contribute to superannuation, at least for the next few years. The husband – whilst currently not employed – has historically earned more than the wife. He hopes to obtain employment earning at least $250,000, which is more than the wife currently earns. I anticipate he will have the opportunity to make greater contributions to his superannuation entitlements than the wife will to hers over at least the next few years.

13. I have adopted the wording for the superannuation splitting order substantially as formulated by the husband – save that I have fixed a base rate that achieves a division of the parties’ entitlements 52.5 per cent to the wife. The husband’s proposed orders reflect the draft orders forwarded to the trustees of the fund however I have also made the necessary amendments so that the orders I am making also include the various amendments the trustees requested in their response dated 24 July 2024.

14. For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.

Associate:

Dated:       15 October 2024