Weston-Smart and Smart

FAMILY COURT OF AUSTRALIA

WESTON-SMART & SMART

[2010] FamCA 785

FAMILY LAW – PROPERTY – companies operated by the husband and wife – contributions made by the parties on behalf of the husband’s children and grandchildren – continued occupancy by the wife of the former matrimonial home

Family Law Act 1975 (Cth)

APPLICANT:

Ms Weston-Smart

RESPONDENT:

Mr Smart

FILE NUMBER:

SYC

6752

2007

DATE DELIVERED:

25 August 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

3-6 May and 30 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney

COUNSEL FOR THE RESPONDENT:

Mr Millar

Orders

Within twenty one (21) days of the making of these orders the parties are to do all acts and things and sign all documents necessary to sell the property at

B Street in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … (“the B Street property”) for the best price reasonably obtainable and the following are to apply, unless agreed to the contrary:
(a)the parties are to list the B Street property for sale with an agent agreed upon by the husband and the wife within seven (7) days of the date of this Order and failing agreement the husband shall forthwith in writing nominate three (3) agents from which the wife shall within a further seven (7) days select one and failing which the husband shall select one who shall be the agent appointed (“the agent”)
(b)the parties are to execute all documents requested by the agent for the sale of the B Street property and in the event that the husband and the wife cannot agree on the terms of the agent’s contract within seven (7) days of the agent being selected, the contract is to be in the agent’s standard terms and with the agent’s standard fees
(c)the parties are to give such instructions as are necessary to a solicitor agreed upon between the husband and the wife within fourteen (14) days of the date of these Orders and failing agreement the husband shall forthwith in writing nominate three (3) solicitors from which the wife shall within a further seven (7) days select one or failing which the husband may select one, who shall be the solicitor appointed (“the B Street solicitor”)
(d)       the sale is to be by way of public auction as soon as practicable
(e)the reserve price for that auction is to be $3,950,000
(f)in the event that the B Street property does not sell at the first auction, then it is to be marketed for sale with the agent by way of private treaty for a further period of three (3) months during which time the husband and the wife shall accept any offer made to purchase the B Street property within 5% of the reserve price of the first auction
(g)in the event that the B Street property is not sold at the first auction and is not sold in the period provided for sale by private treaty, it shall be marketed for sale by public auction on a date within six (6) weeks of the conclusion of the period for sale by private treaty and the reserve price shall be a sum agreed between the parties in writing and failing agreement, a sum that is 5% below the reserve price of the first auction. Thereafter, the B Street property shall be submitted for sale by private treaty and auction until sold, and the provisions of these Orders shall mutatis mutandis apply
(h)each party shall attend any auction pursuant to this Order and in the event that the reserve price set for that auction is not reached they shall negotiate with the highest bidder and shall accept any offer to purchase made within 5% of the reserve price set for the auction
(i)
the husband and wife shall execute the contract for sale and in the event that the husband and wife fail to agree on the terms of the contract for sale, the terms recommended by the solicitor shall be adopted, save that the parties agree in accordance with Order 7 of the Orders made

29 March 2008 that the following items be included with the B Street property for sale:
(i)Miele dishwasher
(ii)Refrigerator
(iii)Bookshelves
(iv)Simpson Dryer
(v)Two (2) Classical moulded relief plaques
(vi)Three (3) rectangular planters of matching form and
(vii)Framed etching in main bedroom.
and the wife is at liberty to negotiate the purchase back of the said plaques from any purchaser of the B Street property.
(j)seven (7) days prior to the sale of the B Street property the wife make available for collection by the husband the following items:
(i)statute in the front garden and
(ii)planter located by the swimming pool.
(k)the parties are to pay equally all necessary and reasonable costs in relation to the sale of the property
(l)the wife is to pay all council and water rates and insurance whilst ever she remains in occupation of the B Street property, and on her vacating the same such costs are to be borne equally
(m)      each party is entitled to bid at auction, as permitted by law and
(n)       on completion of the sale the proceeds of sale are to be paid as follows:
(i)in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser
(ii)in reimbursement to either party of money spent by agreement between the parties for the purposes of the preparation of the property for sale and
(iii)as to the balance 50% thereof to the wife and 50% to the husband.
From the proceeds of sale received by the wife under Order 1(n)(iii), the wife is to contemporaneously pay the husband the sum of $206,931.50, unless otherwise paid beforehand. The proceeds of sale to which the wife is entitled shall be charged in favour of the husband with that obligation.
Upon compliance with Order 4 herein, the husband and wife do all acts and things necessary to liquidate D Pty Limited (“D Company”) and the parties are to do all acts and things and execute all documents and pay all such monies and give all such direction as to cause the net proceeds of the liquidation of D Company to be returned to the husband and wife equally.
For the purposes of Order 3 herein, and within twenty one (21) days of the making of these orders the parties are to do all acts and things and sign all necessary documents to forthwith sell the real property situate at and known as P property in the State of Queensland being the whole of the land contained in Lot … (“the P property”) for the best price reasonably obtainable and the following are to apply unless agreed to the contrary:
(a)the P property be listed for sale by private treaty, with Mr C of Ray White, …, Queensland to be the selling agent
(b) the sale price shall be $725,000
(c)the parties are to execute all documents requested by the agent for the sale of the P property and in the event that the husband and the wife cannot agree on the terms of the agent’s contract within seven (7) days of the agent being selected, the contract is to be in the agent’s standard terms and with the agent’s standard fees
(d)the parties are to give such instructions as are necessary to a solicitor agreed upon between the husband and the wife within fourteen (14) days of the date of this Order and failing agreement the husband shall forthwith in writing nominate three solicitors from which the wife shall within a further seven (7) days select one or failing which the husband may select one, who shall be the solicitor appointed (“the P property solicitor”)
(e)in the event that the P property does not sell after three (3) months of being marketed for sale by private treaty, then the sale is to be by way of public auction on a date within six (6) weeks of the conclusion of the period of sale by private treaty and the reserve price shall be a sum agreed between the parties in writing and failing agreement, a sum that is 5% below the sale price, and which is to continue for a period of three (3) months during which time the husband and the wife shall accept any offer made to purchase the P property within 5% of the reserve price of the first auction. If after that auction the property remains unsold, it is to be listed for private treaty for a further period of three (3) months and thereafter the P property shall be submitted for sale by private treaty and auction until sold, and the provisions of these Orders shall mutatis mutandis apply
(f)each party shall attend any auction pursuant to this Order and in the event that the reserve price set for that auction is not reached they shall negotiate with the highest bidder and shall accept any offer to purchase made within 5% of the reserve price set for the auction
(g) on completion of the sale the proceeds of sale are to be paid as follows:
(i)in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser
(ii)in payment of the amount required to effect a discharge of the registered mortgage secured on the title to the P property in favour of the National Australia Bank and
(iii)as to the balance 50% thereof to the husband and 50% to the wife.
(h)in the event there are insufficient proceeds of sale on settlement of the sale of the P property to comply with Order 4(g)(ii) then such further sum as is necessary to effect a discharge of the P property mortgage shall be paid from the D Company bank account.
The husband and wife in their capacity as directors of D Company shall cause D Company in its capacity as the Trustee of the Superannuation Fund to do all acts and things and sign all documents necessary to:
(a)within fourteen (14) days of the date of these Orders liquidate the Colonial First State investment and the IOOF Investments and pay the proceeds of the same to the bank account of the Superannuation Fund
(b)within fourteen (14) days of the date of these Orders and thereafter as funds become available roll out to complying superannuation funds nominated by each of the husband and the wife respectively their respective entitlements in the Superannuation Fund.
Further and within seven (7) days of the making of these orders the parties are to do all acts and things and sign all necessary documents to forthwith sell the real property situate at and known as S property in the State of Queensland (“the N property”) for the best price reasonably obtainable and the following is to apply unless agreed to the contrary:
(a)the S property be listed for sale by private treaty with the selling agent to be Mr O of S Real Estate
(b) the sale price is to be $517,000
(c)the parties are to execute all documents requested by the agent for the sale of the S property and in the event that the husband and the wife cannot agree on the terms of the agent’s contract within seven (7) days of the agent being selected, the contract is to be in the agent’s standard terms and with the agent’s standard fees
(d)the parties are to give such instructions as are necessary to a solicitor agreed upon between the husband and the wife within fourteen (14) days of the date of this Order and failing agreement the husband shall forthwith in writing nominate three solicitors from which the wife shall within a further seven (7) days select one or failing which the husband may select one, who shall be the solicitor appointed (“the S property solicitor”)
(e)in the event that the S property does not sell after three (3) months of being marketed for sale by private treaty, then the sale is to be by way of public auction on a date within six (6) weeks of the conclusion of the period of sale by private treaty and the reserve price shall be a sum agreed between the parties in writing and failing agreement, a sum that is 5% below the sale price, and which is to continue for a period of three (3) months during which time the husband and the wife shall accept any offer made to purchase the S property within 5% of the reserve price of the first auction. If after that auction the property remains unsold, it is to be listed for private treaty for a further period of three (3) months and thereafter the S property shall be submitted for sale by private treaty and auction until sold, and the provisions of these Orders shall mutatis mutandis apply
(f)each party shall attend any auction pursuant to this Order and in the event that the reserve price set for that auction is not reached they shall negotiate with the highest bidder and shall accept any offer to purchase made within 5% of the reserve price set for the auction
(g)on completion of the sale the proceeds of sale are to be paid as follows:
(i)in payment of agent’s commission, expenses of sale and legal costs, and the usual adjustments between vendor and purchaser
(ii)in payment of the amount required to effect a discharge of the registered mortgage secured on the title to the S property in favour of the National Australia Bank and
(iii)as to the balance to the trustee of the D Provident Fund.
For the purposes of Orders 1, 4 and 6 herein the husband and wife shall

co-operate in every way with the agent, including (without limiting the generality of the foregoing):
(a) making the key(s) to the property available to the agent(s)
(b)allowing inspection of the property at all reasonable times requested by the agent(s)
(c)doing or saying nothing to hinder or prevent a sale being effected
(d)ensuring that the property, including the grounds, is in a neat and clean condition at the time of inspection by the agent(s) and prospective purchasers
(e)signing all documents requested by the agent in relation to the listing for sale of the property
(f)executing all other documents necessary to complete the sale within the time required by the contract for sale to ensure that the purchasers do not have a right to terminate or rescind due to failure to do so
(g)undertaking a marketing campaign in accordance with the recommendations of the agent and
(h) attending any auction.
The parties do all acts and things and sign all documents necessary to cause the entirety of the monies in the ASG account with St George Bank in the parties’ joint names to be transferred solely into the husband’s name.
Forthwith the husband shall indemnify the wife and keep her indemnified from and against all claims, actions, suits or demands arising out of or in connection with any contract with the Australian Scholarship Group of which both she and the husband were a party.
Within fourteen (14) days of the date of these orders the wife cause to be delivered to the husband’s solicitors the eight (8) gold sovereign coins in her possession and the green bath towels.
The parties have liberty to apply on 48 hours notice in the event that any difficulty arises in the preparation for sale and marketing of the B Street property, P property or S property.
The husband be declared, to be as against the wife, the owner of the following property:
(a)the property situated at R Street, …, in the State of New South Wales
(b)       all monies held in any bank account in his own name
(c)       his David Jones shares
(d)       his interests in Colonial First State superannuation
(e)       household contents of the R Street property
(f)all other property and chattels of whatsoever nature and kind in the name, possession or ownership of the husband as at the date of the making of the Orders, unless otherwise specified in these Orders.
The wife be declared, to be as against the husband, the owner of the following property:
(a)       her Mercedes Benz car
(b)       her David Jones shares
(c)       her Colonial First State and Perpetual superannuation interests
(d)all other property and chattels of whatsoever nature and kind in the name, possession or ownership of the wife as at the date of the making of the Orders, unless otherwise specified in these Orders.
If either party refuses or neglects to sign within fourteen (14) days of a written request to do so any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.

THE COURT NOTES that procedural fairness has been afforded to the Trustee of the D Provident Fund.

IT IS NOTED that publication of this judgment under the pseudonym Weston-Smart and Smart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6752 of 2007

MS WESTON-SMART

Applicant

And

MR SMART

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings in which the parties to a marriage seek orders in relation to the division of their property.
The nature and value of a number of items of property and the basis on which they should be valued is in contention.
The husband asserts that he has made the major contribution to the acquisition, conservation and improvement of the property of the parties or either of them.
Whilst in general terms the wife does not deny the significance of the husband’s contribution, she asserts that she also made a significant contribution and further contends that since separation the husband has taken money and used it for his own purposes. Consequently, it is sought by the wife that in the interests of justice a portion of that money should be adjusted in the final property division between the parties, and to the detriment of the husband’s property settlement claim and the credit of the wife’s claim.
In addition, the wife asserts that the husband (against the wife’s objection) expended money on his children of a prior marriage and their children, to the effect that the assets which would otherwise be available for distribution between the parties were depleted. She seeks that such expenditure be taken into account in the determination of what is a just and equitable distribution between the parties.
The wife is currently 64 years of age and says that, notwithstanding that she is younger than the husband, who is currently 71 years of age, she should have an allowance made in her favour by reason of the husband’s superior capacity to earn an income and due to her diagnosed illnesses, which are also the subject of dispute.
The husband, however, does make a suggestion that if his proposal for a division of the parties’ assets is adopted, then an allowance should be made in favour of the wife under the provisions of section 75(2) of the Family Law Act1975 (Cth) (“the Act”).
In this dispute the Court is asked to make a determination of a just and equitable distribution of the property of the parties or either of them.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
At the date of cohabitation the wife had the following assets:
a)an interest in the property at M Street to which the wife had contributed some 30% of the purchase price from the proceeds of the sale of a property at N owned by her
b)a share portfolio of value about $21,797 in 1982 and $11,377 in August 1985
c)a motor vehicle and
d)savings of about $10,000.
At the date of the cohabitation the wife asserts the husband had the following assets:
a)an interest in the property at M Street to which the husband had contributed some 70% of the purchase price from the sale of a property at W in which he had an interest at the commencement of the relationship
b)an interest in D Pty Limited (“D Company”) through which 3,000 units were owned in Z Company Pty Limited and which were purchased in 1981 for the sum of $3,000
c)the husband had acquired D Company in 1981 for the purpose of operating a sales agency. He contributed $48,000 to start-up working capital to D Company which had been generated from his income as a sales and marketing manager. The husband was working in that enterprise at the commencement of the cohabitation of the parties and the wife was working as a sales consultant for another sales agency but in 1987 she commenced to work for the agency operated by the husband through D Company.
d)an interest in a Z franchise at V which was sold in October 1999 and the net proceeds of sale were approximately $94,000
e)a motor vehicle and
f)an interest in a UK Pension.

At the date of the cohabitation the husband asserts he had the following assets:
a)a Westpac retirement fund of $39,610, which the husband deposes was subsequently rolled over into D Provident Fund in 1985, as the initial contribution to that self-managed fund
b)the husband has had a property situated at W, purchased by the husband in 1972 for $44,000 and which was sold in 1984 for $149,000. The husband asserts he applied most of the net proceeds of sale, totalling $123,900 towards the purchase of the M Street property
c)approximately 14,800 shares in D Company, which owned the sales agency at V. D Company also owned 3,000 units in the Z Trust and shares (pro rata) in Z Holdings Pty Ltd, that being the trading entity and trustee, and said to have been at a total cost of $3,000. The husband deposed to acquiring D Company in 1981, and to having contributed $48,000 as start-up working capital and
d)in 1984 when the husband and wife commenced cohabitation, the husband held superannuation entitlements from his previous employment in the United Kingdom and also had an interest in a United Kingdom government pension.
The parties have otherwise agreed on a significant chronology of facts, with some additional information provided by the husband.
In 1939, the husband was born and is currently 71 years of age.
In 1946, the wife was born and is currently 64 years of age.
In the 1960’s the wife inherited a share portfolio from her grandparents.
In July 1981 the husband incorporated D Company. The husband further contends that he acquired D Company from his accountants, and that he contributed $48,000 as start-up working capital, generated from his income as a sales and marketing manager.
In 1974 the wife purchased a unit at N for $33,000.
In 1980, the husband’s daughter, E, was born to a previous partner.
In 1981 the husband purchased shares in Z Pty Limited in the sum of $3,000.
In 1981 the husband commenced a Z Franchise at V. The husband further contends that this entity was commenced through D Company, and by means of a sum of $32,000 spent towards equipment, furniture, fittings and signage.
In 1982 the parties commenced a relationship.
In 1982, at the commencement of cohabitation, the wife asserted she was the owner of the property at N and which was unencumbered, having been purchased by the wife in 1976 for $33,000. The wife further asserted she had a share portfolio with a value of $21,797, a Toyota motor vehicle and $10,000 savings.
At the commencement of cohabitation, in 1982, the wife asserts the husband had an interest (through D Pty Limited) of 3,000 shares in Z Holdings; an interest in W property; UK superannuation entitlements; a Z franchise at V and a motor vehicle.
Between May to September 1983 the parties separated.
In April 1984 the parties commenced cohabitation.
In 1984 the husband sold the home at W and received net sale proceeds of at least $123,000. The husband asserted he received net proceeds of $149,000.
On 9 April 1984 the parties purchased a home at M Street for approximately $177,000. The wife contributed 30% to the purchase price from the sale of her unit at N. The husband contributed 70% of the purchase price from the sale of his W house. The parties were tenants in common based on a 70:30 contribution. There was no mortgage attached to the M Street property.
On 9 April 1984 the parties commenced living together in the M Street property and thereafter equally shared the costs of the acquisition of furniture and effects, food and household bills and other living costs.
On 9 April 1984 the wife’s share portfolio was valued at $21,976.90.
In mid-1984 the wife commenced to furnish and decorate the home with the assistance of an interior designer, and did so for a period of approximately

18 months.
In July 1985 the wife was appointed a Director of D Company.
In August 1985 the parties were married.
In August 1985 the wife asserts she had a 30% interest in M Street; a share portfolio worth $11,377; a motor vehicle and $10,000 in savings. At that time also, the wife asserts the husband had a 70% interest in M Street; an interest (through D Company) of 3,000 shares in Z Holdings; UK superannuation entitlements; a Z franchise at V and a motor vehicle.
In 1985 the wife acquired a 17.43% shareholding in D Company, with personal savings. The husband further asserts that he gifted shares to the wife by causing D Company to issue extra shares without any payment by the wife at any time.
In June 1985 the husband established the D Provident Fund, and he further asserts that he rolled over $41,000 from his Westpac retirement fund into that fund.
On 25 July 1985 the wife acquired 17.5% of the shares in D Company, providing the husband with all of the cash that she had in her personal bank account at that time and receiving an allotment of shares equal to the funds provided.
In July 1986 the husband commenced a Z franchise in O. The husband further adds that this entity was commenced through D Company via a sum of $41,000 spent towards equipment, furniture, fittings and signage.
In July 1986 the parties jointly chose the site of the O office and interviews started for the office. Thereafter, the wife continued to work in her pre-marriage employment, with another sales company.
The husband was the Director of the Z Group from 1986, until he was voted off the Z Board in 1999. It is not agreed that the trading companies took eight years to be found up. The husband adds that he was elected as one of the non-executive Directors of the Z group and that he also worked part-time as a non-executive Director on five of the nine subsidiary groups. The husband’s involvement provided significant financial benefits to the parties.
Between 1990 and 1993 and 1996 and 1998 the husband was elected part-time executive Chairman of Z Group.
In 1992 the wife was invited by the board of Z Group to head a committee which thereafter attended to the redesign of an element of the franchises.
In 1994 the parties purchased the former matrimonial home located at B Street for $1,075,000. The husband adds that the parties were registered as joint tenants, and took out a loan with Citibank for $860,000 together with a line of credit for about $200,000.
In 1994 for a period of twenty months, the parties continued to reside at M Street whilst extensive renovations were undertaken to the B Street property. The wife says she project managed the renovation works, and the husband denies that she did so. The husband adds that he was also involved, including in relation to financing. He asserts that the cost of the renovations totalled $484,126 which was paid for by D Company, the line of credit and the monies from the husband’s work as Chairman and Executive Director of the Z group.
In 1994 the wife’s inherited share portfolio was sold to contribute towards the costs of the renovations. The husband does not agree, and asserts the shares were sold much earlier and the funds were used as a contribution to living expenses.
Between 1995 and 2007, the wife received a total of $251,493.92 from her mother during that period. In about 2004 the wife realised that some of the funds from her mother were being applied by the husband to the ASG fund, referred to below.
On 3 April 1996 the M Street property was sold. The husband agrees that this took place, and contends that it sold for $515,000 with the proceeds of sale being used to repay the remainder of the B Street mortgage loan and short term loans and subscriptions to D Company and the D Provident Fund.
On 4 April 1996 renovations were completed and the parties commenced to reside in the B Street property.
In 1996 the parties established the Australian Scholarship Group (“ASG”) fund and commit to paying $26,000 per annum with yearly increases on behalf of the private education of the husband’s seven grandchildren. The wife asserts that this was at the husband’s request, however the husband disagrees and asserts that the matter was discussed jointly.
In 1999 the husband commenced as chairman of F Company Pty Limited, being a company owned by the husband’s son and daughter. The husband received remuneration of $96,000 from F Pty Ltd which was paid through D Company. The wife asserts that it was not agreed that she agreed to refund the husband’s $96,000 remuneration to his son and daughter in exchange for a heavy discount on the company’s products. The husband asserts that this money (which ranged) in turn with the agreement of the wife, was refunded to the husband’s son and daughter in exchange for the discount. It is further asserted by the husband that the fees paid to D Company did not commence until 2002, and there were no payments at all beforehand. He says they grew over seven years from $60,000 per annum to reach $96,000.
In 2000 the husband was voted out as a Director of Z Group.
On 7 July 2000, the husband applied $10,828.80 of the money of the wife’s mother to the ASG Fund. It is the husband’s position that the wife never objected to the husband, neither verbally or in writing, about these contributions. He asserts that the first objection received about this matter was a letter from the wife’s lawyers on 17 February 2009.
On 31 January 2001 the wife retired from full-time employment, however continued to work part-time from the B Street property, with new sales made by the wife and processed through the agency of the husband’s children. The husband however asserts the wife did not continue to work part-time from home, despite several requests from the husband for her to do so. The husband alleges the wife passed to the office of the husband’s children, three sales which she had commenced prior to the sale of the O sales agency, and after that time refused to seek more sales from her former customers.
In January 2001 the wife continued to arrange sales for some former clients of the O office.
On 31 January 2001 the parties sold the Z franchise at O for $121,000 and the net proceeds were used for additional investments by D Company.
In 2001 or 2002 the husband informed the wife that he was going to increase the ASG contributions to include tertiary education, at which time the wife said she expressed her disagreement.
In December 2003 the wife opened a separate account in the name of herself and her mother, to differentiate her mother’s funds. Thereafter, the wife deposited various amounts of money into the joint account with her mother, before withdrawing those funds and applying them to superannuation.
On 19 January 2004 the property at S, was purchased by the D Provident Fund.
In November 2004 the parties sold the balance of the Z Group shares for $2,076,621.
Up until 2005 the wife had the use of a MasterCard, Visa card, access to joint cheque books and accounts via ATM cards. The husband removed the wife’s use of these facilities, save as to the credit cards, requiring the wife to request cash upon 48 hours’ notice.
Between 1992 and 2004 the wife asserted she received a total sum of approximately $251,493.92 from her mother, which was provided in various instalments and which funds were used by the husband for the benefit of the parties. The husband disagrees and says his records do not substantiate this amount. The husband contends that this amount includes a refund of monies lent to the wife’s mother by the parties of $150,000 for the wife’s mother’s bond for her retirement home.
On 14 April 2005 a P apartment was purchased by D Company.
In October 2005 the wife was diagnosed with the early stages of breast cancer.
On 10 March 2006 the wife had a mastectomy of her right breast. The husband agrees this took place, however says it was a precaution as the diagnosis of the wife’s condition was said to involve a 15% chance of becoming invasive breast cancer.
In June 2006 the wife contributed $42,000, being a gift from her mother, into the Perpetual Superannuation Fund. The husband contends that this fund is under the wife’s sole control and that the $42,000 was not a contribution to joint funds.
On 19 June 2006 the husband gifted the sum of $40,000 to his son. The wife contended that the gift was made without her knowledge or consent, however the husband says that the wife agreed to this “bequest” at that time.
On 27 June 2007 the wife withdrew $42,000 from the St George Bank account in the joint names of the wife and her mother and deposited the funds into a perpetual superannuation fund in the wife’s name.
In July 2007 the wife commenced taking anti-depressant medication.
On 2 July 2007 the husband gifted the sum of $100,000 to his daughter. The wife asserts the gift was made without her knowledge or consent. The husband asserts the wife agreed to these bequests beforehand and on several occasions.
On 2 July 2007 the wife told the husband expressly that she objected to the payment. On the same day the husband gifted the sum of $60,000 to his son. The wife does not agree that the gift was made with her agreement. The husband contends that the wife agreed to this “bequest” beforehand and on several occasions. On this date also, the wife says she told the husband expressly that she objected to the payment.
On 11 July 2007 the parties formally separated under the one roof.
On 23 July 2007 the husband provided the wife with a cheque for $100,000 from joint matrimonial funds. The wife applied $70,000 of those funds on legal fees and a further $30,000 on household expenses, joint health expenses and motor vehicle expenses.
On 26 September 2007 the wife filed an Application for Final Orders seeking an equal division of the net matrimonial asset pool.
In October 2007 the husband removed the wife’s ATM card from her wallet and also spent $15,900 on sculptures.
On 27 November 2007 the wife filed an Application in a Case seeking an order for exclusive occupation.
On 29 November 2007 the husband filed a response to an Application for Final Orders and a Financial Statement, seeking 68% of the net matrimonial asset pool.
On 14 November 2007 the husband purchased a property at R Street, for $2,400,000. The property was leased for $2,500 per week. In addition, the husband asserts that he borrowed $608,000 from his daughter and $1,920,000 from the CBA to complete the purchase. The agreed rental was $10,000 per calendar month, which represents $2,308 per week.
On 14 November 2007 the wife refused to permit the husband to borrow against the B Street property, declining to accept responsibility for the debt then incurred by the husband.
On 23 January 2008 the parties agreed on the appointment of single experts, with K Valuers to value the parties’ real estate; L Valuers to value the chattels; and Mr U to value the shareholding in D Company and the interest in the D Provident Fund.
On 30 January 2008 the wife’s Application in a Case for an order for exclusive occupation was heard by Judicial Registrar Johnston (as he then was). An order was made for the husband to vacate the former matrimonial home on or before 31 March 2008.
On 24 March 2008 the L valuation was obtained and the parties agreed to a division of the chattels. The husband disagrees and asserts that no agreement was reached and alleges that the wife has retained jewellery and other items were not divided equally.
On 28 March 2008 consent orders were made by Judicial Registrar Johnston with respect to the division of chattels.
On 1 April 2008 the husband vacated the former matrimonial home and commenced residing at his R Street property.
On 1 April 2008 and thereafter, the wife spent approximately $55,000 on furniture and other household goods to replace those removed by the husband. Thereafter the wife also contended she paid all of the unpaid bills for the

B Street property and continued to meet all of the household utilities, rates, water and maintenance bills.
Between 1 April 2008 and July 2008 the husband asserts the wife withdrew the total amount of $288,848.02 from the D Company account with St George Bank, the D Provident account with St George Bank and the parties’ joint cheque account with St George Bank. Of those funds the wife asserts she has paid $122,727 towards legal fees.
On 11 April 2008 the wife withdrew $16,400 from the parties’ joint account held with St George. The wife withdrew $104,632.02 from the D Provident Fund bank account held with Bankwest.
On 11 April 2008 Somerville & Co. notified the husband’s solicitors, Slade Manwaring of the wife’s withdrawal of two amounts of $16,400 and $104,632.02.
In April 2008 the husband had a six week overseas holiday, in relation to which there is disagreement. The husband asserted that he travelled overseas as a delegate of F Company to the annual conference the worldwide network of which F Company is the member of Australia. It is further said by the husband that the trip was extended to Europe for the purposes of business discussions and at the invitation of the Chairman of the Board of the network. The trip was further extended to enable the husband to visit his daughter in France. In addition, the husband asserts there was no net expense from the parties’ joint funds for the trip, as F Company’s payments covered all costs.
On 10 July 2008 Somerville & Co notified the husband’s solicitors, Slade Manwaring of the wife’s withdrawal of $61,000 to purchase a new motor vehicle.
On 31 July 2008 the wife purchased a new car for $70,388 and pays $65,000 plus the trade-in of her old vehicle for $5,388. The husband however says the purchase price was $70,388 however only $65,000 was paid because a trade-in allowance of $5,388 for a car owned by D Company was included, and the wife refused to remit the $5,388 to D Company.
In August 2008 the wife had further reconstructive surgery to her right breast, and that following this and the earlier surgery, the wife has suffered pain in her right shoulder and has had continuing physiotherapy.
On 27 August 2008 a letter was sent from Slade Manwaring to Somerville & Co. requesting the wife’s consent to the sale of all real estate, except for the husband’s R Street apartment.
On 10 September 2008 the wife consented to the sale of the P property.
On 3 October 2008 the wife consented to the sale of the S property.
In October or November 2008 the husband closed all joint personal bank accounts and bank accounts in the name of D Company and the Provident Fund to which the wife had access, without the wife’s knowledge or consent. The wife then no longer had access to matrimonial assets or funds. The husband asserts this was done as a precautionary measure, given the large amounts that the wife withdrew without the husband’s consent.
On 11 May 2009 the single expert, Mr U filed an expert report as to the value of the parties’ interest in D Company and the Provident Fund as at the financial year ended 30 June 2008.
On 20 May 2009 the single expert, Mr U filed an expert report as to the value of the parties’ interest in D Company and the Provident Fund as at 30 March 2009.
On 6 July 2009 Registrar George made consent orders with respect to spouse maintenance, providing for the payment of $50,000 to the wife and for the husband to pay the wife’s legal fees within 21 days of a taxation invoice being rendered by Somerville & Co.

The Issues

What are the assets and liabilities of the parties and should the Court, in order to do justice between the parties, include “notional assets” in that list.
Was the contribution made by the husband to the acquisition, conservation or improvement of the property of the parties or either of them and otherwise to the marriage greater than that of the wife and, if so, how should this be reflected in a decision as to the distribution of the parties’ assets.
To what extent should the income earning capacities of each of the parties and their state of health and their respective ages and the other matters raised by the wife as to expenditure of funds by the husband on his children and grandchildren, be taken into account in order (if at all) to adjust the entitlements of the parties based upon a consideration of their contributions.

The Oral Evidence

During the marriage the wife has made a joint contribution with the husband to the benefit of the husband’s children and grandchildren and the justice of this case requires such a contribution to be taken into account.
The wife under cross-examination asserted that she had objected to the parties making monies available to the ASG fund for the education of the husband’s grandchildren. She denied that a number of conversations alleged by the husband to have taken place had occurred and she asserted that she had become increasingly concerned at the expenditure of her mother’s money on the ASG fund.
Some of the money expended on the fund was, she said, money of her mother’s which the parties administered.
In cross-examination she conceded however that the parties had lent her mother an amount of $150,000 which was utilised as a bond to enable the wife’s mother to purchase accommodation at the retirement hostel in which she lives. She conceded that the funds had been borrowed from the ASG fund. Her complaint as to the expenditure of her mother’s money related to amounts which totalled some $200,000.
It seems, however, that in considering the withdrawals of her mother’s money she did not take into account the amounts which were withdrawn for the purpose of repaying the debt to the ASG fund who was the lender of the funds utilised to secure her mother’s accommodation and which were loaned to her for that purpose.
A document tendered into evidence supported the husband’s assertion as to the loan, with which the wife agreed. She did not offer any explanation as to why such information was not included in her affidavit.
The husband was further supported in his assertion by a ledger account detailing the repayments of the amount tendered in evidence. I accept the husband’s assertion in this regard.
In addition, the wife sought in cross-examination to say that all the contributions to the ASG fund were made without her consent. She said that her objections to the payments became stronger as the number of children supported through the scheme increased and she saw the use of her mother’s funds for the purpose. In that latter aspect it appears she was substantially wrong.
She conceded however that she had signed some 21 contracts with the fund in which she contracted for the contributions and they contracted with her to pay the benefits for the husband’s grandchildren.
The husband caused to be filed affidavits of his son and daughter deposing to conversations that they say that they had with the wife. It was said that the conversations were ones in which they expressed gratitude for the wife’s contributions to their children’s education and the wife acknowledged such expressions. The children were cross-examined and supported the assertions of the husband.
The wife maintained that she loved the grandchildren before separation and after it and indeed continued to do so. Her claimed position that the husband’s children should be the ones to bear the financial responsibility for their children was not in accord at least with her actions in signing the contracts.
She said that she believed the amounts would be paid no matter what she said, so she signed the documents. No formal objection was made to them until after her separation from the husband and she conceded that that objection was as a result of “advice”.
I find that it is more probable than not that the wife consented to the payments. I have determined that the payments made to those funds should not be notionally added back into the pool of assets and adjusted for in the distribution of assets between the parties, as I find that the expenditure was consensual. I find however that such contributions were contributions made indirectly in part by the wife in the fulfilment of her role during the marriage.
The wife said that she did not initially know of certain “bequests” made by the husband to his children totalling $100,000 and each paid in it appears a number of payments. I use the term “bequests” simply because that is the term used by the parties to describe the gifts made even though they were gifts inter vivos.
The wife said she first knew of the bequests upon reading a note on the husband’s desk in which he outlined the payments intended to be made.
She says that she told the husband that if the gifts were made there would be “consequences”. She detailed those consequences in her evidence as being that she would separate from the husband although she conceded that that was a thought which remained unexpressed to the husband at the time.
The wife it seems was party to discussions with the parties’ accountant when the subject of the “bequests” was raised and the wife could not recall the discussion with the accountant in relation to the delay in payment of the bequests to the children to the next taxation year.
She appeared to say in relation to that meeting that she simply did not recall what was said on the topic. On the basis of the other evidence given in this matter of the husband and the husband’s accountant, who on this point I accept, I find that the conversations deposed to by the husband and his accountant did take place and that the wife made no objection at that time to the payments.
Her failure to recall such a discussion in circumstances where she suggests she had expressed such vehement opposition to the payment of the amounts, and her failure to voice any opposition to them at that meeting, do not support her evidence as to conversations with the husband and her attitude. In relation to this matter I find that the evidence of the husband is preferred and that the payments were made with the foreknowledge and accord of the wife who did not object to them at any time until after the parties’ separation.
The wife referred in two affidavits filed to monies received from her mother. The documents were inconsistent to some extent. It appears, however, that some of the money which she says was her mother’s money utilised for the benefit of the parties was in fact spent on the acquisition of shares in Telstra Limited and in the mother’s name.
Those acquisitions were referred to in a ledger to which she had access and in which she had made entries. Notwithstanding this evidence, the wife continued to deny that all the entries which had thus been made represented shares bought for her mother. I find that on the balance of probabilities the assertions of the husband reflected in the ledger represent the true position in relation to these matters.
The wife gave evidence that she consented to an order for the sale of some personalty, which included three photographs. She was under an obligation to sell the items for the best price reasonably obtainable and to account for the proceeds of their sale.
In a curious set of transactions she sold them back to the photographer for $30 each and then re-bought them for the same price. She subsequently sold the photographs to another party for the sum of $60 each. It seemed a curious set of transactions and the wife’s explanation was, in my view, not likely to be correct. That is to say that she sold them to the photographer since she was her friend and then bought the photographs back because she liked them but sold them to a third party when the husband expressed distress at their sale price.
In any event, she did not account for the proceeds as was required under the orders. It seems an incident which, although dealing with amounts of money of little consequence in this case, nevertheless reveals the lengths that the wife is prepared to go to ensure the husband did not have what he wanted.
Another example of the same strong desire was the wife’s continued occupation of the former matrimonial home which was unencumbered and her refusal to agree to the sale of properties to reduce the husband’s significant debt burden. This was in circumstances where the husband had purchased a property for his occupation following his departure from the matrimonial home and in circumstances where the wife had the continued use of an unencumbered property. No explanation that the wife gave justified her conduct. I will take into account the fact that the wife had, and continues to the present day to have sole occupation of that home.
The wife gave evidence of her participation in the parties’ sales business and it was asserted by her that she was the manager of the operation. The husband asserted that he was the manager and that the wife was the sales manager. On her description of what the husband did as compared to what she did, whatever she called it that title was not justified and it appears the husband took the majority of responsibility not only for that business but for the management of the parties’ investments. That is not to say that the wife did not perform an important role. Indeed, the husband described her abilities with the sales as of a high order.
Post separation the wife gave evidence that she spent some $9,000 on a rug and other monies on the purchase of personalty post separation. This was at a time when the husband was meeting significant payments of interest on loans made to him to enable him to purchase the R Street property and where the wife would not afford him the opportunity of reducing his obligation by sale of property. The wife by comparison had the occupancy of the home.
There are issues between these parties which were canvassed in this matter relating to personalty. Sovereigns, and jewellery of the wife’s mother and the like were discussed at some length in the wife’s cross-examination. At the end of that process I find that she presently asserts she has eight gold sovereigns in her possession.
I will order the return of the sovereigns in the wife’s possession, power or control to the husband.
In relation to the payments made to the ASG fund, I will take these into account to the wife’s credit.
The wife in her evidence did say that she no longer opposed an order that D Company be wound up. However, she opposed the order sought by the husband that the provident fund be similarly dealt with.
The wife in her evidence did confirm that, contrary to her application as filed, she now sought a sale of the former matrimonial home and the distribution of the proceeds of sale in a particular way as set out in a draft minute of order tendered by her counsel. This was a volte face from a long maintained position that the property should be transferred to her and which came “at the eleventh hour”; she having steadfastly maintained hitherto that she did not want it sold but that rather sought that it should be transferred to her.
The wife conceded in her evidence that the husband undertook the exterior maintenance of the matrimonial home with some help from her and that the parties had employed cleaners, albeit for a period of only one and a half hours per week. The husband conceded much of the contributions made in non financial form as asserted by the wife.
The wife said that she had undertaken a search for some part-time work and had been unable to acquire it. She said she would not work full-time as she spent significant time in the care of her aged mother.
The husband had asserted that the wife’s expectation in her mother’s estate should be taken into account as a financial resource of the wife. The wife’s mother the wife said was over 90 years of age and still residing in her retirement hostel.
The Will of the wife’s mother was tendered and it showed that the wife would inherit one-half of the estate of her mother under its terms. There was no evidence save that of the husband reporting statements of the wife as to the state of health of the wife’s mother.
I do however note that she is a beneficiary of the Will but there is no definitive evidence as to the mother’s life expectancy and her needs for the rest of her life and the costs associated with her care. There is no expert evidence to the effect that the wife’s mother lacks testamentary capacity. Accordingly, the value of the expectation is not possible for me to quantify even though evidence be offered as to the value of the wife’s mother’s assets.
The husband gave both affidavit and oral evidence.
In cross-examination the husband conceded that the wife had made contributions to D Company but denied or put in issue much of what the wife’s affidavits depicted as her contribution. He agreed however that D Company was a joint enterprise in which both of the parties participated in its growth and development, albeit to different degrees. The husband was keen to emphasise that the financial contribution in his case exceeded that of the wife and that his contribution to D Company was different and perhaps superior in importance to that of the wife.
The husband did, however, concede the skill and expertise of the wife as a sales consultant and the role she played in that side of the business where it seemed perhaps her skills exceeded those of the husband. He conceded that for a couple of years the wife worked without receiving salary although a salary was attributed to her in the books of D Company and was subsequently deposited to a joint account of the parties.
He gave evidence of the acquisition of shares by the wife in D Company. The number of shares she had had been calculated precisely. He said the wife had not paid for the shares which he said had been paid from a dividend. He conceded that prior to the calculation of the dividend the wife had placed funds with D Company.

Credit

The husband was a witness who had difficulty in containing his answers and being responsive to the questions. He had been warned by me and told by counsel for the wife that he was being unresponsive but his style did not abate. He left one with the impression that he would answer the question he thought he was asked, truthfully, but that there were often problems for him in the discernment of the meaning of the question. I must say I found that the questions asked by the wife’s counsel posed no particular problem of comprehension but the husband appeared to be a literalist and answered some questions literally and where I had difficulty in believing that was not an attempt to mislead, given the context of the question. The husband measured every response. His evidence on occasions was probably totally accurate but also unhelpful and uninformative.
For all those difficulties I accepted the husband as a witness of truth on most matters. I find that unless otherwise indicated I prefer his evidence when in conflict to that of the wife which was more inaccurate and unreliable and the subject of failed recollection. Her late concessions on the payment of monies to the benefit of her mother and the source of those funds was but one example.

Property matters

The first step I must undertake is to identify the property of the parties or either of them available for division between them.

The Balance Sheet

The parties at the hearing presented a balance sheet in the form set out hereunder, and which was said to be their final balance sheet. However, as submissions could not be dealt with on the last day of the hearing, the matter was adjourned to allow the making of written submissions and for the husband to make an application for orders for interim property settlement for the purpose of creating a fund to defray his costs.
In the event, the husband withdrew certain monies from D Company in the interim and applied some of those to the payment of his costs. He also withdrew other monies for various purposes (some of them personal), without the consent of the wife and in the face of an Application in a Case filed following the conclusion of the evidence at the hearing and in which the husband sought permission to make such withdrawals and other withdrawals on a continuing basis. Those matters were the subject of discussion as to whether there should be a further amendment to the balance sheet. Furthermore, in light of the actions of the husband undertaken without the consent of the wife pending the making of final orders in this matter, on the day on which the interim application was listed I made only orders restraining the parties from withdrawing funds from D Company until further order, other than amounts payable by D Company in the ordinary course of business and for an amount to be paid to the husband and the wife as allowances pending delivery of the final Judgment.
The balance sheet provided at the hearing by the parties was as follows:

Wife ($)	Husband ($)
Assets
[B Street] (joint)	3,950,000	3,950,000
[R Street] (h)	2,350,000	2,350,000
[D] Pty Ltd (joint)	632,605	632,605
Monies held with husband’s solicitors (h)	4,217	4,217
BankWest Bank Account (Acc No. […]906) (h)	1	1
BankWest Bank Account (Acc No. […]215) (h)	1,152	1,152
ASG monies (St George Account) (joint)	14,439	14,439
St George Bank Account (Acc. No. […]171) (w)	36,871	36,871
David Jones Shares ([…]) (h)	7,390	7,390
David Jones Shares ([…]) (w)	12,765	12,765
Jewellery retained by wife (original valuation) (w)	25,190	25,190
Further Jewellery retained by wife (NRMA list) (w)	Excluded	4,515
Jewellery asserted by wife to belong to her mother (w)	Excluded	9,175
Watches retained by husband (h)	Not known	TBA
Items husband asserts [L valuers] did not value (w)	Denied	TBA
Household contents purchased by wife post 24.3.2008 (w)	51,318	TBA
Household contents purchased by husband post 24.3.2008 (h)	34,571	TBA
Mercedes Benz (w)	55,000	55,000
$7,175,519	$7,103,320

Wife ($)	Husband ($)
Add backs
Legal costs paid (h)	133,765	133,765
Legal costs paid (w)	248,747	248,747
Post separation expenditure by wife that is unreasonable (w)	Nil	TBA
[…] Photographs sold by the wife under value (w)	Nil	1,841
Capital gifts to [husband’s son and daughter] (h)	200,000	Nil
ASG contributions (in the alternative surrender value of $165,826.02) (h)	192,486	Nil
Regular periodical bequests paid to husband’s children […] – (Tab 29 + $96,000 for 2008 + 40,000 for 2009) (h)	643,457	Nil
Other amounts paid to husband’s children identified in cross-examination of the husband	73,136	Nil
$1,491,591	$384,353

Wife ($)	Husband ($)
Liabilities
Mortgage on [R Street] (h)	1,927,000	1,927,000
Tax liability for 30 June 2010 (h)	39,638	39,638
Tax liability for 30 June 2010 (w)	($3,860)	($3,860)
Tax liability for 30 June 2011 (h)	11,203	11,203
Personal loan from [husband’s daughter] (h)	608,000	608,000
Citibank MasterCard (h)	Nil	Nil
Citibank Platinum (w)	2,175	2,175
Citibank MasterCard (w)	149	149
David Jones (w)	3,558	3,558
$2,587,863	$2,587,863

Wife ($)	Husband ($)
Superannuation
[D] Provident Fund (self managed) (h)	227,622	227,622
[D] Provident Fund (self managed) (w)	263,537	263,537
Colonial First State (Accumulated) (h)	27,884	27,884
Colonial First State (Accumulated) (w)	26,447	26,447
Perpetual Superannuation (w)	27,957	27,957
$573,447	$573,447

Wife ($)	Husband ($)
Net Assets	$6,652,694	$5,473,257

Wife ($)	Husband ($)
Financial Resources
Wife’s mothers (net assets $744,352 + Jewellery $9,175) (other)	Nil
Benefits derived from husband from children’s businesses (other)	TBA	Nil

The wife submitted a further version of the balance sheet on final submissions, save for adding into the balance sheet the further sum paid by the husband for costs to his lawyers and adjusting (in accordance with the agreement of the parties) the amount for the value of D Company. I do not intend to amend the balance sheet except as set out below. I will, however, take into account the way in which the withdrawals aliunde from D Company following the close of evidence were used and take them into account in making my decision under section 75(2).

In relation to the items sought to be added back into the balance sheet, it is not my practice and nor do I intend in this case to add back any non existent asset, save for the paid legal fees of the parties. After the close of evidence, the evidence was that a payment had been made by the husband to his solicitors, and which was added into the balance sheet, and are as set out in the husband’s affidavit.
The items sought to be added back were:
a)Payments made by the husband and the wife to the husband’s children. I do not propose to add these payments back, apart from my general objection to adding them into a balance sheet as an item that exists as the evidence supports the position of the husband that such payments were made consensually, save for payments made post trial, which I have taken into account in my considerations.
b)Payments made by the husband and the wife to the ASG fund to support scholarships for the husband’s grandchildren to attend school. I again find that these payments were consensually made and accept the evidence of the husband and the concession of the wife that she signed multiple contracts for the ongoing commitment to provide that support.
c)Amounts paid by the husband to the children of his former marriage termed “bequests” and referred to above and identified in the draft balance sheet as “Regular Periodical Bequests paid to the husband’s children”.
d)The sums cannot be added back since they are gifts to the children made with the knowledge of the wife to permit of the possibility of the husband assisting them in their company.
e)The “bequests” were made up to six years prior to the date of separation. The amounts were paid at the end of a round robin of payments in which D Business was paid an amount by the children’s company and an approximately equivalent amount was gifted back to the children.
f)There were some costs of this arrangement which were born by D Company or the parties but the wife was a director of D Company and I accept that she knew of the arrangement.
g)The wife and the husband were beneficiaries of the arrangement in the form of goods and services provided by the children through their companies at no cost to them. The wife acknowledged the benefits thus received from the children. The amount claimed under this heading by the wife to be added back as a notional asset is significant but I do not propose to accede to her request.
h)It is asserted that the totality of these payments amounted to $1,100,000 but that amount did not include the receipts from the children’s company. I will take such payments as did occur net of receipts from the children’s companies to the benefit of the children of the husband and their children as representing in part a contribution by the wife to marriage and will reflect it in my final orders.
i)There was also an issue in relation to payments made by the husband to his children in the sum of $73,136 and which the husband said in his evidence were in part repayment of monies paid on his behalf by them. It was not possible, given the state of his recall, to precisely identify whether some or all of this amount was the subject of such an arrangement. However, I do not intend to include the amount in the balance sheet but will take it into account in my considerations under section 75(2)(o) that the payments have been made and that although some indeterminate part of them may have been the repayment of monies paid by the children for the husband’s use in meeting ordinary living expenses, there is no satisfactory evidence of that.
j)In her final submissions the wife suggested that the husband’s property at R Street and its associated debts should be excluded from the balance sheet. I do not agree and will not do so. The asset and the liabilities exist and will be included. It is suggested by the wife that the husband acted unreasonably in purchasing the property post separation and incurring the debt and interest accruing on the amount borrowed. I do not find that the husband acted unreasonably. The wife could well have agreed to sell the matrimonial home in which she was residing, which was of greater size and value than R Street, and funds might have been provided to house each of the parties. She however declined to do so and maintained a claim to a transfer of the property until just before the trial commenced. Given her refusals to deal with the property it was not unreasonable that the husband should purchase R Street and incur the liabilities. He no doubt wanted secure accommodation. If the value of the property had risen significantly the wife would have no doubt sought to have it included in the balance sheet. The wife had the benefit of secure accommodation in the former matrimonial home to the exclusion of the husband and I will also take that into account.
k)There was an issue in relation to the wife’s jewellery and the husband’s watches. The issue of the jewellery of the wife has not been pressed. Although the wife’s counsel referred to the failure of the husband to be co-operative in relation to the value of certain watches said to be in his possession there is no evidence currently of their value and although they may remain in the balance sheet they are of indeterminate value. In any event, I find it inappropriate to include in the balance sheet property retained by the wife’s mother.
l)I am also asked to add back to the balance sheet some photographs which were sold by the wife eventually for $60 each at the price at which they were originally purchased. I will not do this because the items are not the property of the parties or either of them. I think that having regard to the state of the evidence I will simply treat the facts in relation to them in accordance with the maxim de minimus non curat lex.
m)I am asked in part to give present value to the contributions made by the parties to the ASG fund for the husband’s grandchildren on the basis that they can be surrendered. I will not do that. I find that it is a gift which has been made. The wife has conceded that she signed not one but many contracts in relation to these funds. I do not accept that she did so under duress of any sort. I accept that she knew what she was doing and if she did have reservations the fact that she did not want to embarrass the wider family by refusing to sign is, in my view, not relevant to her consent which I find on the totality of the evidence was a real consent. She also accepted the thanks for the gesture she had made.
n)I will, however, as I have said take it into account as a contribution in part by the wife to the marriage and reflect such payments in my final decision as to quantum. I do however believe that any suggestion that she should contribute to future payments under this fund is unjust given the attitude of the children and the grandchildren to the wife since separation which has been to distance themselves and their children from her.
I find the final balance sheet to be as follows:

Assets	($)
B Street (joint)	3,950,000
R Street (h)	2,350,000
D Pty Ltd (joint)	632,605
Monies held with husband’s solicitors (h)	4,217
BankWest Bank Account (Acc No. …906) (h)	1
BankWest Bank Account (Acc No. …215) (h)	1,152
ASG monies (St George Account) (joint)	14,439
St George Bank Account (Acc. No. …171) (w)	36,871
David Jones Shares (h)	7,390
David Jones Shares (w)	12,765
Jewellery retained by wife (original valuation) (w)	25,190
Mercedes Benz (w)	55,000
Total	$7,089,630

Add backs	($)
Legal costs paid (h)	233,765
Legal costs paid (w)	248,747
Total	$482,512

Liabilities	($)
Mortgage on R Street (h)	1,927,000
Tax liability for 30 June 2010 (h)	39,638
Tax liability for 30 June 2010 (w)	(3,860)
Tax liability for 30 June 2011 (h)	11,203
Personal loan from husband’s daughter (h)	608,000
Citibank MasterCard (h)	Nil
Citibank Platinum (w)	2,175
Citibank MasterCard (w)	149
David Jones (w)	3,558
Total	$2,587,863

Superannuation	($)
D Provident Fund (self managed) (h)	227,622
D Provident Fund (self managed) (w)	263,537
Colonial First State (Accumulated) (h)	27,884
Colonial First State (Accumulated) (w)	26,447
Perpetual Superannuation (w)	27,957
Total	$573,447

Net Assets (including superannuation)

$5,557,726

Section 79(4) contributions

Initial Contributions

The initial contributions of the parties I find as set out above.
The husband worked in his sales agency as did the wife from 1987. The husband worked as a director of the Z Group and continued to operate the V and O Agencies, which were owned by D Company. The husband worked part-time as executive chairman of Z Group for about half of the time from 1990 to 1999 and worked as chairman of the New Zealand subsidiary and was non-executive director of an international branch of the Z Group. He was also part-time executive director of five of the nine subsidiary trading companies in the group from 1986 to 2007 and the executive chairman of Z Superannuation Pty Limited. Income from the companies in which he held office was either paid to the husband or to D Company.
The wife worked in the O agency as director of sales. The husband conceded her skill and expertise in this area.
The investments of the parties were mainly managed by the husband but I accept that he consulted with the wife in relation to such management. He was primarily responsible for the management of D Company and the investment of the funds of the D Provident Fund. The husband’s accountant totalled the benefits which were received from the involvement in the Z group as in the sum of $2,483,222. The husband asserts, and I accept, that he worked long hours.
The wife, as did the husband, made contributions to the maintenance and refurbishment of the various properties in which they resided. In her written submissions the wife acknowledges there is some dispute between the parties as to the contributions made by each of them to the renovations of the B Street property. The husband agrees that she was involved in the renovation process. In relation to that project the wife deposes that she undertook work in relation to the renovations over a twenty month period up until April 1996, which included locating and liaising with the architect, sourcing products to be used in the renovation, selecting fittings and fixtures for the kitchen, laundry and bathrooms and choosing all of the surfaces and finishes. The wife deposes to having attended the property daily during the period of the renovations, and says she was involved in each stage of the construction and in answering the queries of the builder and architect. In relation to the M Street property the wife contends she organised and managed the renovation of that property on two occasions.
In addition, the wife was involved in the Z Franchise at O from January 1987 until 2001. She deposes to having been the manager of that business and worked six days per week, undertaking various tasks, including but not limited to researching, planning, arranging and making sales for clients, the hiring, training and supervision of staff, ordering brochures, stocktaking, daily banking and attending management meetings and conferences. The wife also deposed to undertaking consulting work following her retirement from the O sales agency.
It is the wife’s position that she was primarily responsible for the domestic duties during the parties’ relationship and that she primarily cared for the husband’s daughter, E, when she spent time with the parties.

Contributions to date of separation

I find that the contributions to the date of separation should be determined in as to 52% to the husband and 48% to the wife.

Contributions post separation

The husband has managed the parties’ investments. The wife has lived without significant costs in the former matrimonial home and the husband has acquired alternate accommodation for which significant charges accrued. The wife has contributed to the maintenance of the matrimonial home.

Conclusion based on contributions

I assess that the contributions made as at the date of the hearing in the proportion of 55% to the husband and 45% to the wife.

Section 75(2) considerations

The husband is older than the wife and has, on his own admission, skills of a higher order in management and investment decision-making. It is asserted by him and not gainsaid that he has demonstrated skill and ability in the commercial field and retains that capacity, subject to available employment. He has been employed by his children in the past albeit that by reason of the relationship he did not receive income for it. One expects that in the future he will have the support of his children.
I do not find that the wife has no earning capacity. There was some evidence of her illness but not such as would indicate that she was unable to work. She however has been out of the workforce for some time and her skills are of a more modest order than those of the husband.
In particular, I take into account that the wife has had the benefit of the occupancy of the former matrimonial home from shortly after separation until the date of hearing and the husband has been obliged to pay for his accommodation. However, the husband has also made withdrawals from accounts to the detriment of the asset pool and in relation to which he cannot provide proper explanation.

Conclusion on section 75(2)

For all the reasons referred to above and in the circumstances I assess as just a further adjustment taking into account all these matters an adjustment in favour of the wife of 5%.

Overall division of assets

The above determination will see the wife receive 50% of the parties’ assets and the husband also receive 50% of the parties’ assets.

Just and equitable

The division of assets would see the wife receive $2,778,863 worth of nett assets and the husband receive $2,778,863 worth of assets.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division:
a)The wife will receive:

Assets		($)	($)
Half the proceeds of sale of B Street (joint)		1,975,000
Half interest in D Pty Ltd (joint)		316,302.50
St George Bank Account (Acc. No. …171) (w)		36,871
David Jones Shares (w)		12,765
Jewellery retained by wife (original valuation) (w)		25,190
Mercedes Benz (w)		55,000	2,421,128.50
Add backs
Legal costs paid (w)		248,747	248,747
Superannuation
D Provident Fund (self managed) (w)		263,537
Colonial First State (Accumulated) (w)		26,447
Perpetual Superannuation (w)		27,957	317,941
Total Assets (including superannuation)		$2,987,816.50
Liabilities
Tax liability for 30 June 2010 (w)	(3,860)
Citibank Platinum (w)	2,175
Citibank MasterCard (w)	149
David Jones (w)	3,558
Payment from wife to husband	206,931.50	208,953.50
Total Liabilities	$208,953.50
Net Assets (including superannuation)	$2,778,863

b)The husband will receive:

Assets	($)	($)
Half the proceeds of sale of B Street (joint)	1,975,000
R Street (h)	2,350,000
Half interest in D Pty Ltd (joint)	316,302.50
Monies held with husband’s solicitors (h)	4,217
BankWest Bank Account (Acc No. …906) (h)	1
BankWest Bank Account (Acc No. …215) (h)	1,152
ASG monies (St George Account) (joint)	14,439
David Jones Shares (1685 at $4.52) (h)	7,390
Payment from wife to husband	206,931.50	4,875,433

Add backs
Legal costs paid (h)	233,765	233,765
Superannuation
D Provident Fund (self managed) (h)	227,622
Colonial First State (Accumulated) (h)	27,884	255,506
Total Assets (including superannuation)	$5,364,704
Liabilities
Mortgage on R Street (h)	1,927,000
Tax liability for 30 June 2010 (h)	39,638
Tax liability for 30 June 2011 (h)	11,203
Personal loan from husband’s daughter (h)	608,000
Citibank MasterCard (h)	Nil	2,585,841
Total Liabilities	$2,585,841
Net Assets (including superannuation)	$2,778,863

I certify that the preceding one-hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 25 August 2010.

Associate:

Date: 25 August 2010

[2010] FamCA 785

25 August 2010

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