Wheatland & Robinson - [2022] FedCFamC1F 877

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wheatland & Robinson [2022] FedCFamC1F 877

File number(s): MLC 4392 of 2020

Judgment of: KARI J

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where parenting issues were resolved by consent on the first day of trial – Where there is one child of the relationship – Where the child will remain in the wife’s primary care due to risk factors presented by the husband’s admission he suffers from an alcohol addiction – Where the relationship consisted of an eight and a half year marriage - Where each of the parties sought to add back notional property – Where the parties engaged in a lavish lifestyle during the marriage – Where the Court is satisfied that a just and equitable approach can be achieved by adopting a single property pool – Where the husband has accrued an entitlement to a lifetime pension - Where the Court found that the pension entitlement should be treated as an income stream and should not be included in the net property pool – Where the wife is 22 years the husbands junior – Where the wife has capacity to earn a reasonable income, and can expect to do so for the foreseeable future – Where the husband is paying child support and will continue to do so in the future – Where the Court ordered an overall division between the parties as to 55 per cent to the wife and 45 per cent to the husband – Where the court dismissed the wife’s application for costs for the late resolution of the parenting issues

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Bevan & Bevan (2013) FLC 93–545; [2013] FamCAFC 116

Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10

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

Hickey & Attorney-General (Intervener) (2003) FLC 93-143; [2003] FamCA 395

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

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Mayne & Mayne (2011) FLC 93-479; [2011] FamCAFC 192

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005)191 FLR 294; [2005] FamCA 158

Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4

Stanford & Stanford (2011) FLC 93-483; [2011] FamCAFC 208

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51

Division: Division 1 First Instance

Number of paragraphs: 264

Date of hearing: 7-8 March and 6-10 June 2022

Place: Melbourne

Counsel for the Applicant: Ms Tulloch

Solicitor for the Applicant: Garland Hawthorn Brahe

Counsel for the Respondent: Mr Sweeney

Solicitor for the Respondent: Saunders Family and Estate Lawyers

ORDERS

MLC 4392 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR WHEATLAND

Applicant

AND:
MS ROBINSON

Respondent

order made by:

KARI J

DATE OF ORDER:

11 November 2022

THE COURT ORDERS THAT:
1.That within 30 days of this Order the parties do each authorise Garland Hawthorn Brahe Lawyers to release the proceeds from the sale of the former matrimonial home that they hold on trust in the following proportions:
(i)To the Husband the sum of $328,692; and
(ii)To the Wife the sum of $196,747.

2.That in relation to any claim made by the husband with B Insurance, D Insurance and/or DD Insurance:
(i)The Husband shall forthwith authorise the Wife to receive any information that she may from time to time request in relation to such claim(s) directly from B Insurance, D Insurance and/or DD Insurance.
(ii)In the event that the Husband receives any amount(s) pursuant to any such claim(s), the Husband shall authorise each B Insurance, D Insurance and/or DD Insurance to disburse the net amount payable to the Husband as to 55 per cent to the Wife and 45 per cent to the Husband.
(iii)That the parties each be permitted to provide a copy of these Orders to B Insurance, D Insurance and/or DD Insurance.

3.That within 30 days of this Order the Husband do pay in full the joint liability owing to “G Company” and otherwise fully indemnify the Wife in relation to the same.
4.That the Husband otherwise be solely liable for and fully indemnify the Wife for any liabilities in his sole name, including but not limited to his NAB Credit Card, C Finance and his debt to V Business.
5.That the Wife otherwise be solely liable for and fully indemnify the Husband for any liabilities in his sole name, including but not limited to her NAB Credit Card.
6.That the parties otherwise each retain any property, financial resources, superannuation and/or pension entitlements presently held in their respective sole name, possession or control.
7.That the proceedings otherwise be dismissed as finalised.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wheatland & Robinson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
INTRODUCTION

These proceedings relate to the question of property settlement between parties to an eight and a half year marriage.
The proceedings were initially listed for trial in relation to both parenting and property issues. However parenting issues were resolved by consent on the first day of trial, after counsel for the husband had completed her opening submissions.
Ultimately orders were made by consent in relation to parenting issues in identical terms to the orders promoted by the wife. The orders promoted by the wife were the same orders that she had promoted when she filed her Amended Response on 3 December 2021.
The late resolution of the parenting aspect of the proceedings has given rise to the wife making a cost application. This application became a feature of how the wife’s counsel proposed that the Court approach the question of property settlement.
There were however two major areas of dispute between the parties relating to the question of property settlement, namely:
(a)How the Court is to deal with the husband’s defined benefit pension entitlement which is presently in the payment phase, with the wife seeking a split of the same to her and the husband opposing the same; and
(b)Whether the Court notionally add back into what is a small pool of assets, various amounts promoted by each of the parties.
BACKGROUND
The short history of the parties’ relationship is as follows:
(a)The husband was born in 1953 and he is 69 years of age.
(b)The wife was born in 1975 and she is 47 years of age.
(c)The parties met in or about late 2005.
(d)The parties began living together in a de facto relationship in approximately mid-2009, when they began living together in a home owned by the husband at E Street, Suburb F in the state of Victoria.
(e)The parties married in 2011.
(f)The parties separated in December 2019.
There is some dispute between the parties as to when their committed relationship actually commenced. The wife puts that date much earlier than the husband. However it appears from the oral evidence of the parties that they both considered that they were in a committed relationship by at least the time that the husband was working in public service in 2008, as the husband acknowledged the wife as his partner at that time.
The wife however did acknowledge during her oral evidence that the parties separated for a period of time in 2008, and that they both dated other people during that time.
There is one child of the marriage, X, born in 2014. X is 8 years old.
Prior to the relationship of the parties, the husband was a public servant. He served in senior positions, and retired in 2006. Throughout his career commencing in 1992, the husband accrued an entitlement to a lifetime pension pursuant to the Super Fund 1 (“Super Fund 1”). That pension has been in the payment phase from the time of the husband’s retirement from public service. The husband will continue to receive the pension until his death. At the current time, the husband’s pension is paid at the rate of $151,545 gross per annum.
The time leading up to the parties’ separation was difficult and fraught as a consequence of a series of allegations, investigations and findings relating to the husband’s conduct during his time in the public service. These events culminated in the husband resigning from his position in 2018.
Running concurrently with the events related to the husband’s conduct at work, the husband also suffered from what he now acknowledges was a significant alcohol addiction; noting that the wife also alleges that the husband has also abused prescription medications.
In early 2018 the husband was admitted to J Hospital as a consequence of his poor mental health and excess alcohol consumption.
Since that time there have been a further six admissions to the J Hospital for largely the same issues, approximately as follows:
(a)early 2018;
(b)late 2019;
(c)mid-2020;
(d)late 2020;
(e)early 2021; and
(f)mid-2021.
The parties separated at the end of the husband’s third hospital admission, when the wife asked the husband not to return to the matrimonial home upon his discharge from hospital in late 2019.
On the husband’s discharge from hospital in late 2019, he took up rental accommodation at Suburb F, and he continues to reside in that accommodation.
From the date of separation the wife and X resided for a period of time in the former matrimonial home at H Street, Suburb K. However from about March 2020, the wife and X have resided in a home in L Town owned by the wife’s relatives. From the time that the wife took up residence in L Town, she has also resided full time with her new partner Mr Flynn.
To the husband’s credit, he acknowledges and commends the wife’s supportive role prior to their separation during what was a very difficult period of his life.
PARENTING ARRANGEMENTS
From the time that the parties separated, X has resided with the wife.
There is no dispute between the parties that in the post separation period the wife has been X’s primary carer.
As a result of the husband’s combined mental health and alcohol addiction issues, his time with X in the post separation period has been significantly curtailed. The wife has at times supervised the husband’s time with X. In addition the husband has spent unsupervised day time periods with X.
As a consequence of the final parenting orders now made, the future arrangements for X are such that:
(a)X will continue to live with the wife;
(b)X will spend regular time with the husband each alternate weekend for the day only (9 hours) on each Saturday and Sunday, together with each Tuesday after school;
(c)In addition, X will spend additional periods of time with the husband during the day time only during the school holidays, and for special occasions.
The parenting arrangements for X also require:
(a)The husband to travel between X’s sports club at City M or the Suburb N McDonalds and the father’s home in Melbourne.
(b)The husband to undergo quarterly hair follicle testing for alcohol and prescription medications until such time that he is able to establish that he has not used prescription medications beyond the amount prescribed.
(c)The husband for a period of 12 months to submit to alcohol testing immediately prior to any time spent with X and up to three separate occasions over the course of the time that X spends with him.
(d)The husband to continue to attend upon his treating psychiatrist and addiction specialist.
At the time of the making of the final parenting orders it was apparent that the husband was hopeful of pursuing overnight time spending at some point in the future.
The husband however properly abandoned that position in light of the serious risk factors created by his acknowledged significant alcohol addiction.
The husband retains a hope that at some point in the future he may be able to overcome his addiction, and that his relationship with X may be able to be progressed to include extended time together. That however is an aspiration which is presently out of the husband’s reach. The Court hopes that if that time arises in the future, the parties will be able to amicably come together to consider the parenting arrangements for X, without further recourse to the Court.
LEGAL PRINCIPLES
The jurisdiction of the court to make orders with respect to the financial matters arising out of a marriage are set out in Part VIII of the Family Law Act 1975 (Cth).
The legal principles relevant to adjusting property interests on the breakdown of a marriage were considered by the High Court in Stanford & Stanford (2011) FamCAFC 208 (‘Stanford’).
In particular, the High Court identified:
(a)Firstly, that the court must identify the existing legal and equitable interests of the parties in the property, liabilities and financial resources of the parties at the time of the hearing; and
(b)Secondly, and importantly, that in the application of section 79(2) of the Act the court must not make any order adjusting the parties legal and equitable interests in property unless the court is satisfied that “in all of the circumstances, it is just and equitable” to do so.
(c)If the court determines that it would be just and equitable to make orders adjusting the parties interests in property, then section 79(4) of the Act requires:
(i)The consideration of the contributions made by the parties to the acquisition, conservation and improvement of any property, both of a financial nature but also of non-financial nature;
(ii)The effect of any proposed orders on the earning capacity of each of the parties;
(iii)Those relevant factors set out in section 75(2) of the Act;
(iv)Any other order affecting each of the parties; and
(v)Any child support either party has or is liable to provide, or might be liable to provide in the future for a child of the relationship.
(vi)Finally, the court must consider the “justice and equity” of the actual orders to be made.
Prior to the decision in Stanford, the appropriate approach in a property settlement case was well settled and had been distilled into the “four step process” as identified by the Full Court in Hickey & Attorney-General (Intervener) (2003) FLC 93-143 as follows:
(a)Identification of the value of the property of the parties;
(b)Identification and evaluation of the contributions of the parties to the acquisition, conservation and improvement of the property;
(c)Identification and assessment of the relevant future needs factors of the parties; and
(d)Considerations of justice and equity.
The significance of the decision in Stanford with reference to the four step process was discussed by the Full Court in Bevan & Bevan (2013) FLC 93–545 (‘Bevan’). In that decision, the Full Court identified that the four step process “merely illuminates the path to the ultimate approach,” but that the overarching obligation of the Court is not to make an order unless it is just and equitable to do so.
In Stanford at [42], the Full Court identified:
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order …”
Here both of the parties have competing applications for property adjustment before the court.
The Court accordingly considers that in those circumstances it is just and equitable to make an order adjusting the property between the parties.
The four step approach will otherwise be adopted.
THE EVIDENCE
The trial hearing took place over a period of 5 days.
Each of the parties gave oral evidence and were subjected to cross examination.
In addition, the wife relied on evidence from her new partner Mr Flynn, and he was also subjected to cross examination.
The material received into evidence relating to financial issues from each of the parties was as follows:
(a)Husband’s Second Amended Initiating Application filed 21 December 2021;
(b)Husband’s Affidavits filed 21 December 2021 and 23 May 2022;
(c)Husband’s Financial Statement filed 25 December 2021;
(d)Wife’s Amended Response to Initiating Application filed 3 December 2021;
(e)Wife’s Financial Statement filed 7 February 2022;
(f)Wife’s Affidavit’s filed 2 February 2022 and 23 May 2022; and
(g)Affidavit of Wife’s partner Mr Flynn filed 2 February 2022.
The parties additionally obtained a single expert opinion from Mr O in relation to the husband’s Super Fund 1 pension entitlements. Mr O had prepared three reports, and he was cross examined.
Unfortunately the opinion provided by Mr O in his third report was a qualified one, as the Super Fund 1 had not released to Mr O all of the necessary information to enable him to provide a firm opinion. This resulted in the need for a subpoena to issue to the Super Fund 1 following the conclusion of the trial hearing, and the preparation of an addendum report from Mr O to incorporate the further information. Following the release of Mr O’s addendum report, the parties did not seek to adduce any further evidence or make further submissions. Accordingly, all four of Mr O’s reports were before the Court, dated as follows:
(a)7 March 2022;
(b)1 April 2022;
(c)6 June 2022; and
(d)25 July 2022.
Mr O’s evidence has been of assistance in understanding the nature, form and characteristics of the husband’s pension entitlements.
So far as each of the parties were concerned it appeared to the Court that they each found trawling over the entrails of their relationship at times difficult; albeit for what appeared to be different reasons.
It was apparent that the husband found the trial process emotional, particularly when confronted with the workplace misconduct allegations and his addiction issues.

The wife’s counsel made strong submissions attacking the husband’s credit, as a consequence of his addiction, his inability to be candid with the Court in relation to his addiction until the eleventh hour and his lack of compliance when it came to his discovery obligations.
When the husband gave oral evidence he indicated that the nature of his addiction was that he was not able to be honest with himself, let alone the Court when admitting the true level of his alcohol addiction.
While there was a clear inconsistency between the husband’s asserted “alcohol free” position in February / March 2022 with the reality of his circumstances at the time, the husband’s counsel rebuked any suggestion that the Court should disregard the whole of the husband’s evidence simply because of his lack of candour regarding his substance addiction. Submitting instead that the Court should take a more sophisticated analysis of the husband’s evidence when considering the facts in dispute. The Court accepts this submission. The Court is satisfied that in all of the circumstances of this case, the husband’s lack of candour in relation to his alcohol addiction does not render the whole of the husband’s evidence unreliable.
So far as the wife’s oral evidence was concerned, while on the whole much of her evidence was not the subject of dispute, there were some areas about which there was a challenge, and about which the wife was ultimately vague in her recollection.
The wife’s counsel asserted that these challenges to the wife’s evidence were inconsequential. This however is not a position which the Court entirely accepts. Accordingly, those areas about which the wife was vague in her evidence and/or about which the Court does not accept her evidence are the focus of discussion later in these reasons.
The evidence of the wife’s partner, Mr Flynn, also requires some comment. It was clear to the Court that Mr Flynn did not relish his involvement in the litigation, his need to give evidence nor any examination of his financial circumstances. It appeared at times that Mr Flynn wanted to deliver his own speech or commentary, which was most unhelpful and unnecessary. Ultimately however the Court is satisfied that Mr Flynn was candid with the Court with respect to all issues, save for one topic discussed later in these reasons.
THE EXISTING LEGAL AND EQUITABLE INTERESTS OF THE PARTIES
At the commencement of the trial, the parties provided the Court with a joint balance sheet. That document relevantly provided as follows (rounded down):

Asset Ownership Husband’s Value Wife’s Value

Balance of proceeds of sale of FMH Joint 525,439 525,439

Motor Vehicle 1 Wife 37,715 37,715

Motor Vehicle 2 Husband 39,915 39,915

Artwork Wife 8,000 8,000

Artwork & antiques Husband 25,250 25,250

Insurance Claim Husband Nil 80,788

TOTAL 636,319 717,107

LIABILITIES

NAB Credit Card (pre-separation) W (10,000) (10,000)

NAB Credit Card (pre-separation) H (50,000) (50,000)

Debt to G Company Joint (2,000) (2,000)

C Finance debt Husband (33,806) (33,806)

Debt to P Lawyers Husband (10,220) Nil

Debt to Mr Q Husband (53,138) Nil

Debt to V Business Husband (10,994) Nil

TOTAL (170,158) (95,806)

NET NON-SUPERANNUATION ASSETS 466,161 621,301

ADDBACKS

Legal fees paid from FMH proceeds Husband 150,000 150,000

Legal fees paid from FMH proceeds Wife 150,000 150,000

Gambling losses Husband Nil 100,000+

Legal fees paid from redundancy and early superannuation release Wife 16,849 Nil

Funds from sale of livestock Husband Nil 8,000

Legal fees for misconduct investigation Husband Nil 181,557

TOTAL 316,849 589,557

NET NON-SUPERANNUATION ASSETS INCLUSIVE OF ADDBACKS 783,010 1,210,858

SUPERANNUATION

Super Fund 2 – Accumulation Interest Wife NK 164,647

As can be seen form the joint balance sheet, there was much the parties agreed.
The main areas of contention between the parties are:
(a)The question of notional assets, being monies that each of the parties sought to add back to the pool;
(b)How the Court should treat the husband’s potential insurance claim; and
(c)An assessment of which liabilities should be included as matrimonial debts.
Each of the areas of dispute shall be separately dealt with in these reasons.
The husband’s potential insurance claim
The wife sought to include, as an asset, the husband’s potential insurance claim in the amount of $80,788.
The Court understands that this insurance claim relates to an alleged claim open to the husband to recoup some of the monies expended on his legal representation relating to the workplace misconduct allegations.
The parties agree that when the allegations arose, they were in agreement that the husband should obtain legal representation.
The wife gave oral evidence that she was supportive of the husband obtaining legal advice and representation and that she participated in that process, including attending appointments with the husband’s legal advisors and perusing correspondence.
In addition, the wife gave evidence that she was involved in the decision making as to how the husband would fund his legal expenses. The wife acknowledged that she discouraged the husband from taking loans from friends and that she made enquiries and supported the husband obtaining a release of his Super Fund 3 entitlements (presumably amounts held in an accumulation interest) to fund those legal expenses.
In addition, the wife confirmed in her evidence that together with Mr Flynn (who was not her partner at the time but subsequently became her partner), she investigated and assisted the husband to make insurance claims to assist in the funding of those legal expenses.
The total amount incurred by the husband in legal fees appears to be approximately $415,344, of which approximately $383,854[1] has been paid and approximately $10,220 is asserted by the husband to be outstanding.
[1] Exhibit H2.
The husband asserts that the amounts that he received from his superannuation and the successful insurance claim already made are:
(a)Approximately $250,000 from his Super Fund 3 fund; and
(b)Approximately $123,000 from the insurance claim.
The wife asserts that the amounts the husband received and applied to legal fees were as follows:
(a)Approximately $285,667 from his Super Fund 3 fund; and
(b)Approximately $153,000 from the insurance claim.
It is not necessary for the Court to resolve that dispute.
Importantly however, the parties agree that the wife and Mr Flynn were together working on a further insurance claim to “B Insurance” for “[personal]” costs. To that end the wife asserts:
(a)She undertook negotiations with B Insurance and she received an offer to settle the husband’s claim in the amount of approximately $53,075.
(b)She and the husband “agreed not to accept that offer”.[2]
(c)The husband retains the ability to either accept that offer, and/or liaise with the Victorian Ombudsman and/or litigate the issue.
(d)The husband can also pursue a claim against his “[D Insurance / DD Insurance] insurance policy for ‘[personal] costs’”.[3]
[2] Wife’s affidavit filed 02 February 2022, paragraph 168.
[3] Wife’s affidavit filed 02 February 2022, paragraph 170.
During the course of the trial the Court heard oral evidence from the wife that on or about 10 February 2021 the husband’s solicitors wrote to the wife’s solicitors enquiring as to whether the wife and Mr Flynn were prepared to continue pursuing insurance claims on behalf of the husband.
In her oral evidence the wife acknowledged that her solicitors had responded to that correspondence on 12 March 2021 indicating that the wife was not prepared to continue to pursue those claims on behalf of the husband, and that she would return all relevant paperwork.
The wife was thereafter challenged about when she actually provided that paperwork to the husband, and in that regard:
(a)The wife accepted that all of the documents were provided by her on or about 11 January 2022, almost a year later.
(b)The wife also asserted that she had sent the husband a summary by email between 12 March 2021 and 11 January 2022 prior to sending him all of the information on 11 January 2022.
(c)The husband’s counsel then requested that the wife produce the email communication confirming that she had provided information to the husband in a summary email.
(d)The wife was unable to do produce any communications to that effect.
(e)The wife then became quite vague in her recollection of events and asserted that she thought she might have given the husband some information personally.
(f)Later in re-examination, the wife’s counsel referred the wife to an email on the topic sent by the wife in April 2020.
Having heard the evidence on this topic, the Court finds that the wife did not provide any information to the husband between March 2021 and 11 January 2022.
The Court also accepts the husband’s evidence that he has been unable to deal with that aspect of his life at the present moment, and that he is unsure whether he will ever be in a position to do so.
The Court equally accepts the wife’s unchallenged evidence that there is an ability to pursue a claim and that a previous settlement offer had been made by B Insurance.
While the wife’s primary position was that an amount of $80,788 be included as an item of property, by the time of closing submissions her counsel proposed an alternative that would see the parties sharing in any future successful claim made by the husband in the same overall proportions as otherwise determined by the Court.
That is a course of action with which the Court agrees, given the uncertainty at this juncture as to whether or not the husband would in fact ever pursue the claim. Accordingly, orders will be made to that end, together with consequential orders to facilitate the release of information to the wife in that regard.
The husband’s debt to P Lawyers
Tied up in the issues pertaining to the husband’s legal fees arising from the misconduct allegations, is an assertion by the husband that he continues to owe his solicitors P Lawyers an amount of $10,220.
In support of that assertion the husband produced a copy of communications by text and by email with his solicitor in August 2020.
The husband did not however produce any other documents which confirmed that this debt remained outstanding.
What the Court might have expected to see were any number of documents, including but not limited to:
(a)A current invoice showing overdue amounts owing, which if not being sent regularly to the husband was capable of being requested by the husband; and/or
(b)A current letter from his solicitors confirming the amounts that were presently owing, which again was capable of being requested by the husband.
Instead however, all the husband produced was outdated communications from his solicitor sent almost two years earlier. That document refers to an invoice number …93 with an outstanding balance of $10,220.
The wife put into evidence the husband’s statement of account from his solicitors. With reference to that document and the invoice number referred to in the communications between the husband and his solicitor in August 2020, the Court can see that there are two entries in red under the invoice bearing the same reference number. One entry appears to be a write off in the amount of one cent, and the other appears to be a credit note of $10,219.99. The net effect of those two entries is that it does not appear from that statement of account that any fees are owing in relation to invoice number …93.
Again, the husband could have done something to explain this statement of account, including but not limited to obtaining further information from his solicitors. Again, he did not do this.
Accordingly, the Court is not satisfied that there is any debt owed by the husband to P Lawyers, and the same shall not be included as a liability of the marriage.
The husband’s debt to Mr Q
Another debt asserted by the husband is an alleged amount owing to Mr Q in relation to livestock in the amount of approximately $53,138. The husband also asserted that this debt was incurring interest.
The husband’s evidence on the topic is limited to one paragraph in his trial affidavit which reads as follows:
169.I also purchased a share in some [livestock] via [S Company]. Unfortunately, [they] were not fantastic investments. I currently still owe [Mr Q] a debt of $53,138.30, which is continuing to accrued interest. I have explained to [Mr Q] that I am currently involved in Family Law proceedings and that my funds are tied up. He has agreed to not pursue the debt until the conclusion of these proceedings.
During cross examination of the husband, he asserted that the arrangement with Mr Q was a “strange one” involving Mr Q purchasing livestock but only taking up ownership at a later date. The husband asserted that the livestock that had been purchased under this arrangement never made it to that stage, but that the alleged debt to Mr Q remained.
The husband was asked if there was a contractual agreement with Mr Q evidencing the “strange” arrangement, and that if such a document existed it should be produced by the husband.
The husband was unable to produce any contract.
The alleged debt to Mr Q is a topic about which only the husband was able to put sufficient evidence before the Court confirming that this liability existed. However he failed to put any confirmatory evidence before the Court.
On any plain view, there might have been various options available to the husband to satisfy the Court that the liability to Mr Q was presently owed. This might have included the husband calling Mr Q to give evidence in the proceedings.
In all of the circumstances, the Court is unable to accept that there is a present liability owed by the husband to Mr Q and the same shall not be included as a matrimonial liability.
The husband’s debt to V Business
There is no dispute between the parties that an invoice was rendered to the husband on 28 October 2020 by his accountants V Business in the amount of approximately $10,994.
The invoice details a number of entries for which work was carried out on behalf of the husband, including but not limited to:
(a)The preparation and lodgement of the husband’s tax returns for the financial years ending 30 June 2019 and 30 June 2020;
(b)Examination, reconciliation and analysis of the husband’s accounting records together with those relating to R Pty Ltd;
(c)The preparation of an amended 2018 personal income tax return;
(d)Researching the ability to withdraw from the Super Fund 1 pension;
(e)Providing assistance regarding withdrawal from superannuation;
(f)Liaising with Super Fund 3;
(g)Obtaining an extension to purchase car from motor vehicle dealer; and
(h)Liaising with the accountant of Ms Robinson as required.
The wife’s position is that the invoice should not be treated as a matrimonial liability, essentially because it covered work done for the preparation of the husband’s accounting / taxation affairs.
During her oral evidence the wife acknowledged that other than work done for the preparation of the husband’s taxation returns from the date of separation in December 2019 through to 30 June 2020, a significant proportion of the work undertaken by the husband’s accountants related to a period of time prior to the parties’ separation.
The wife also took issue with one entry which identified that charges had been rendered by the husband’s accountant in liaising with her new accountants, presumably in the post separation period.
A submission was put on behalf of the wife that it was incumbent on the husband to obtain a detailed breakdown and itemisation of the charges rendered by the husband’s accountants, so that there could be a clear understanding as to charges that were rendered in the post separation period.
However, any cursory perusal of the invoice makes it readily identifiable that a significant proportion of the entries relate to events which took place well prior to the parties’ separation; for example the preparation of the husband’s tax return for the financial year ending 30 June 2019.
While the wife was aggrieved by the prospect that she should wear any of the costs of discussions between her former accountants and her new accountants, this is but one entry in a long list of over 15 entries for services rendered.
In addition, there are a number of entries that appear to relate to matters about which the wife gave evidence she was also involved in assisting the husband, including for example assisting with withdrawals from the husband’s superannuation and providing detailed analysis of legal expenses to ensure a full claim.
In circumstances where it must be inferred that both parties have benefitted from the advice received by the husband’s accountants and there is no evidence that the expenses themselves were unreasonably incurred, it appears entirely proper that the liability to V Business is brought to account.
ADDBACKS
As will be discussed further in these reasons, each of the parties ask the Court to add back into the property available for division, notional sums of money which do not exist.
It is important to note that the exercise of adding back notional property is one that has been the subject of significant discourse.
As identified by the Full Court in Vass & Vass (2015) 53 Fam LR 373:
138.There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties.
In Trevi & Trevi (2018) FLC 93-858 (‘Trevi’), Justice Murphy commented:
27.The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
28.However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
29.The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
30.Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Footnotes omitted)

His Honour then went on to comment on the topic of monies expended on legal fees, being one of the issues that presented itself in Trevi. His Honour commented:
31. To the considerations just discussed must be added the propositions emerging from authority that paid legal fees as a category of addback is imbued with considerations specific to that expenditure. The Full Court said in Chorn:
56.In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57.If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58.If funds used to pay legal fees have been generated by a party post‑separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post‑separation income or acquisitions.
32.Those passages can be seen as an attempt to establish “guidelines”, undertaken after a detailed examination of earlier authorities, for the treatment of paid legal fees within s 79 proceedings. There can be little doubt that the statements made in that case have been applied by trial judges ever since.
(Footnotes omitted)
Accordingly, the real question to be considered by the Court is whether or not to exercise discretion in one of two ways:
(a)Firstly, by adding back notional property; or
(b)In the alternative taking any amounts expended into account pursuant to the provisions of s 75(2)(o).
Importantly however, the distinction remains that the Court has a discretion as to how to deal with notional property. The Court is not required to exercise discretion to either add back, or consider the notional property pursuant to s 75(2)(o), if the circumstances of the case do not warrant that occurring.
The wife’s proposed addback of the husband’s gambling losses
The wife asks the Court to add back an amount of “$100,000+” in relation to monies she asserts were spent by the husband on gambling.
The wife asserted in her trial affidavit that she had “repeatedly” asked the husband to “produce documents evidencing the extent of his gambling during the relationship”[4] to no avail.
[4] Wife’s affidavit filed 02 February 2022, paragraph 155.
The wife also deposed that as a consequence, she caused subpoena to issue to W Company “to obtain records of [Mr Wheatland’s] gambling. Those records suggest that [Mr Wheatland] applied funds totalling $95,459.40 to his [W Company] account. This figure is that for net losses and does not simply represent “turnover” in the account. This also does not represent the only source of [Mr Wheatland’s] betting activity.”[5]
[5] Wife’s affidavit filed 02 February 2022, paragraph 156.
The wife also asserted that she was “aware that [Mr Wheatland] also paid substantial amounts to bookmakers and gambling entities.”[6]
[6] Wife’s affidavit filed 02 February 2022, paragraph 158.
The wife went on to deny the husband’s assertions that the husband’s gambling did not place the family under any financial hardship, asserting instead that “for much of our marriage [Mr Wheatland] appeared to be struggling to budget and was unable to provide me with funds, despite his significant income. I regularly felt under financial strain as I applied all of my income to household and childcare expenses and was unable to save any funds.”
During the course of the wife’s oral evidence, the wife was challenged as to how she had come to the figure of $95,459 referred by her in her affidavit material. The wife was taken to an extract of material produced by W Company. It was at this point that the wife became vague and unclear about how she had calculated that figure. Ultimately however the wife indicated that the calculations had been derived from the W Company extract.
Having looked at the extract of materials produced by W Company it appears that the figure of $94,459 has been calculated by adding together each amount described as “Deposits less cancelled Deposits” (which totals $158,069), and deducting from that amount the total amounts described as “Withdrawals less Cancelled Withdrawals” (which totals $62,610), to arrive at a figure of $95,459.
What can also be gleaned from the W Company extract is that the records relate to a period between June 2009 and March 2021.
During cross examination of the wife, she acknowledge that the vast majority of the transactions related to a period of time during the currency of the relationship. The final account statement covers a period both prior to and post the parties separation, spanning the period from January 2019 to March 2021.
During cross examination, the wife accepted that it was unclear from the final statement how much of the betting activity related to the post separation period as against the 2019 year during which the parties’ relationship remained intact.
The wife however accepted that when considering all of the statements as a whole, a net amount of no less than $70,000 had been applied by the husband to his W Company account over the course of the relationship.
Having looked at the transactions over the period of the final statement, it appears that the net position of the “Deposits less Cancelled Deposits” ($24,362) minus “Withdrawals less Cancelled Withdrawals” ($6,340), is an amount totalling $18,022. If that amount is deducted from the total net figure of $95,459, the net amount applied to the husband’s W Company account prior to January 2019 is a figure of approximately $77,437.
Accordingly, while the wife accepted that it was a figure of no less than approximately $70,000 applied by the husband to his W Company account prior to January 2019, it appears that the figure was slightly higher.
What remains unclear to the Court is how much of the $18,022 was applied to the husband’s W Company account prior to separation, as against post separation.
In her closing submissions the husband’s counsel referred the court to the comments of Faulks DCJ in the Full Court decision of Mayne & Mayne (2011) FLC 93-479.
Relevantly for present purposes are His Honours remarks as follows:
77.It seems that human experience (and common sense) shows that while parties are together, each might, from time to time and with the consent of the other, either express or implied, apply or appropriate assets or funds to his or her own purposes. When the relationship is good, no-one is likely to care – let alone keep records. Individual amounts may stand out, as is the case here, but many small transactions in combination may exceed, in total value, one large transaction.
78.It is not the Court’s function to conduct an audit of the marriage or of the relationship finances. The parties’ remedies for resolving disputes about expenditure while they are together are centred on them and them alone. Choosing one transaction from many prior to separation for different treatments, specifically “to be added-back” or notionally included in the pool of property may make doing justice and equity between the parties difficult.
During cross examination of the wife, the husband’s counsel obtained a number of concessions from the wife as to how the parties had managed their financial affairs. The Court accepts the wife’s evidence that:
(a)She applied the majority if not all of her income to her own personal expenses, some household expenses and the expenses of X, including the costs of a private nanny.
(b)She was able to spend her income as she wished.
(c)The husband would top up her expenditure on an as needs basis as the husband was earning upwards of $500,000 per annum at times, as against her income which she put at $80,000 per annum. Although later in her evidence she acknowledged that her income fluctuated and that she took a 12 month sabbatical commencing in 2018 where she did not earn any income.
(d)There were times that the husband had more funds available for the parties discretionary spending.
(e)Her personal expenditure included expenditure on clothing and cosmetic procedures.
(f)Both parties understood that the husband’s position in public service required the parties to attend social functions and to be dressed appropriately.
(g)She was aware that the husband gambled throughout the relationship.
(h)She enjoyed travelling, and spent time with friends socialising all of which cost money.
The wife’s admissions in that regard are not insignificant. What the Court can understand from the wife’s evidence is that the parties’ lifestyle was one where they were not particularly frugal in their expenditure.
While it might be that in hindsight the wife wishes to attack the husband’s gambling expenditure over the course of the relationship, the Court accepts the submissions made on behalf of the husband that to do so would be inappropriate in the present circumstances. That is particularly so when regard is had to the reality that an amount of $77,437 was spent with W Company over the course of a nine year period, being no more than at best $8,604 per annum.
Comment should also be made that a significant complaint was made by the wife as to the husband’s lack of candour in disclosing his gambling expenditure, including expenditure beyond his W Company account.
Even if the Court accepts the wife’s assertions that further amounts were expended by the husband, the amount that she ultimately identified that she was pursuing when she gave her oral evidence was an amount of $100,000; or put differently $10,000 per annum over the course of a ten year period.
Whether it be the figure of $8,604 or a figure of $10,000 per annum, in the context of the relationship of these parties and how they generally lived their lives financially, it is not an amount which appears significant.
Accordingly, and for all of the reasons discussed the Court declines to exercise discretion to add those amounts back, or to take those amounts into account when considering the relevant s 75(2) factors.
The wife’s proposed addback of funds expended on the husband’s legal representation relating to his misconduct allegations
The wife also sought to add back the amount of funds expended by the husband on his legal fees defending the workplace misconduct allegations.
As identified earlier in these reasons:
(a)The husband incurred legal fees of approximately $415,344 in relation to the workplace misconduct allegations, of which approximately $383,854 has been paid.
(b)The husband asserts that a total amount of approximately $373,000 was paid from drawing down on his superannuation and from an insurance claim. Whereas the wife asserts that a total amount of approximately $438,667 was applied from those sources.
The amount that the wife asks the Court to add back is an amount of $181,557.
In her trial affidavit, the wife set out that she arrived at a figure of $181,557, as she considered that this amount had been “unreasonably incurred” by the husband.[7] The wife then went on to depose that:
(a)$7,000 had been unreasonably incurred by engaging a private investigator to “discredit” one of the complainants who had “spoken out” against the husband.[8]
(b)$62,550 had been unreasonably incurred pursuing an injunction in the Supreme Court.
[7] (Wife’s affidavit filed 02 February 2022, paragraph 162).
[8] (Wife’s affidavit filed 02 February 2022, paragraph 164).
The wife did not however set out with any precision how she arrived at the very precise figure of $181,557.
During the wife’s oral evidence she asserted that the amount of $181,557 was calculated by her and represented the amount that had not been covered by the husband’s insurance claims.
Having heard all of this evidence, it is unclear to the Court how in fact the wife calculated the amount that she now asks the Court to add back.
The wife’s motivation however, appears to be related to an agreement signed by the parties and annexed to her trial affidavit. That agreement is dated 3 May 2019, and appears to record that the parties would apply any monies recovered from insurance claims towards private school fees for X.
This document however did not become a feature of any oral evidence, and it does not appear that either party are maintaining a position that funds be quarantined for private school education for X.
The wife’s inability to clearly articulate to the Court exactly how she arrived at the amount she now wishes to be added back, is a significant barrier to the Court bringing this amount to account in any way.
Through her counsel, the wife appears to assert that the basis for the Court adding back these funds and or bringing them to account pursuant to s 75(2)(o), is because the wife asserts that the husband unreasonably incurred those legal fees.
In Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644, Justice Baker identified:
As a statement of general principle. I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
The Court assumes that the wife puts the husband’s conduct in relation to the incurring of his legal fees in the second category to which Justice Baker referred.
The Court finds it difficult however to reconcile this assertion as against the wife’s oral evidence previously referred to, that she was involved in the process of the husband obtaining legal advice, she supported the husband defending the allegations and she was actively involved in attempting to find a way of funding those significant legal expenses.
While findings of workplace misconduct are reprehensible, for the Court to be satisfied that the husband acted “recklessly, negligently or wantonly” in relation to the expenditure of sums on legal fees, the Court would have to know something more about the allegations, the inquiries that were undertaken (including that of Mr U), the advice that the husband received, whether he accepted that advice, or whether he gave unreasonable instructions.
While the Court understands that there was a positive finding by Mr U, that in and of itself is not sufficient in all of the circumstances to which the Court has referred to warrant the Court exercising discretion to either addback an amount expended on legal fees and/or to take these costs into account pursuant to s 75(2)(o).
Moreover given the wife’s evidence that she supported the husband obtaining legal representation, it is apparent that the sums expended on legal fees in hindsight for the wife are in the very category identified by Faulks DCJ in Mayne as falling outside the categories of amounts to be added back.
For all of these reasons no amount expended on these legal fees for the husband will be brought to account.
The wife’s proposed addback of funds received by the husband from the sale of livestock
The wife asks the Court to add back an amount of $8,000 expended by the husband on legal fees in these proceedings.
The wife asserted that the source of the funds applied to the payment of the husband’s legal fees were the proceeds from the sale of livestock in late 2020 in the amount of $10,599.
The husband asserted in his reply affidavit that the amount of $8,000 applied to his legal fees was not sourced from the proceeds of the sale of the livestock, but rather was from a cheque that had been sent two months earlier than receipt of those funds.
During cross examination of the husband, he was not challenged about the source of those funds and the evidence he had deposed to in his reply affidavit.
In the absence of the Court being satisfied as to the source of the funds applied to the payment of the husband’s legal fees (bearing in mind that the husband would have at minimum been receiving an income from his lifetime pension), the Court declines to either add this amount back and/or take that matter into account pursuant to s 75(2)(o).
The husband’s proposed addback of funds arising from the wife’s redundancy payment and superannuation release
The husband asks that the Court add back an amount of $16,849 expended by the wife towards her legal fees in these proceedings.
During her oral evidence the wife acknowledged that in the immediate period prior to separation and in the post separation period up to approximately August 2020, a number of events occurred as follows:
(a)In or about November 2019 the wife was made redundant from her position at Z Organisation.
(b)The wife received a redundancy payment from Z Organisation into her National Australia Bank (“NAB”) account (account number ending #...50), in the amount of approximately $87,414 in November 2019.
(c)From that same bank account the wife paid her various expenses, including but not limited to payments towards her NAB credit card.
(d)The wife remained unemployed and was not otherwise in receipt of any income from the time that she was made redundant until August 2020 when she accepted a position with the GG Organisation.
(e)During the period of her unemployment, the wife drew down two amounts of $10,000 from her superannuation entitlements pursuant to covid relief measures that enabled her to do so, with those funds being deposited into her NAB account ending #...50
(f)The wife applied a figure of approximately $16,849 from her NAB account ending #...50 towards the payment of her legal fees.
In circumstances where the Court is satisfied that the wife applied some of the monies received from her redundancy and/or superannuation draw down towards the payment of her legal fees, it is open to the Court to exercise its discretion to include those amounts as an add back.
The Court however declines to do so in circumstances where the wife’s redundancy payment and the amounts released to her from her superannuation were those funds that the wife had available to her to meet whatever expenses she incurred during the intervening period between the loss of her employment and obtaining new employment.
Further commentary as to the parties legal and equitable interests in property
In addition to those findings that have already been made, some further commentary is required as to the parties’ legal and equitable interests in property.
The first topic relates to the agreed addback in respect of monies that each of the parties received from the sale of the former matrimonial home, totalling an agreed figure of $150,000 each.
The Court understands that the parties received funds from the sale of the former matrimonial home as a consequence of an order made on 1 February 2021 for the release of $50,000 to each of the parties.
It is not clear to the Court as to how the additional amount of $100,000 was released to each of the parties, as it does not appear to have been released as a consequence of an order of the Court.

Be that as it may, at the commencement of the trial it was an agreed position that the amount received by each of the parties be added back.
However, by the time that closing submissions were made, Counsel for the wife promoted that there be a different approach to account for the costs application made on behalf of the wife regarding the parenting aspect of the matter.
The approach that was promoted on behalf of the wife’s counsel was that not all of the wife’s funds received in the amount of $150,000 be added back to the pool, but that rather an amount of $125,000 or thereabouts be excluded to account for the wife’s legal fees incurred up to the commencement of the trial.
This course of action was opposed by counsel for the husband. She submitted that to take this approach would conflate a separate consideration of the wife’s costs application with the assessment of any just and equitable outcome so far as the division of property is concerned.
These are submissions with which the Court agrees.
As identified by Justice Murphy in Trevi:
37.An order failing to addback legal costs is a pre-emptive decision about one party paying the other’s legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party’s costs.
38.If, contrary to the demands of that section, there is to be a payment of costs, the award is dependent upon a finding of justifying circumstances which, in turn, is dependent upon (non-exhaustive) considerations all of which are informed by antecedent events - for example, whether one party has been “wholly unsuccessful” and “the conduct of the parties to the proceedings”.[9] An award of the costs of trial, if any, is in the usual run of events made after the respective entitlements of the parties to a settlement of property have been assessed and, importantly, any awarded costs are paid from the assessed entitlement to property received by the paying party.
(Footnotes omitted)
[9] Family Law Act 1975 (Cth) s 117(2A), specifically sub-paragraphs (e) and (c), respectively.
Accordingly, the wife’s costs application will be considered separately, and the amount that the parties agreed to notionally add back in the amount of $150,000 each shall be included.
In addition, during the course of the wife’s oral evidence, the husband’s counsel asked the wife to produce a current statement from her superannuation policy. That statement was duly produced by the wife. The amount held by the wife in her Super Fund 2 account as at 7 June 2022 is an amount of approximately $163,942. This current balance is the amount that the Court shall have regard to, being a slight decrease on the amount that the parties had agreed in the joint balance sheet.
The final topic about which some comment is necessary relates to an item which did not appear on the joint balance sheet, but was a liability asserted by the wife during the course of the final hearing; namely an alleged loan between the wife and Mr Flynn for servicing and repairs to the Motor Vehicle 1 in the wife’s possession.
It was the mutual evidence of the wife and Mr Flynn that he had loaned her an amount of between $7,000-$8,000 for the cost of servicing and repairs to the vehicle, and that an amount is still owed by the wife to Mr Flynn.
The Court however rejects the evidence of both the wife and Mr Flynn on this topic, as the evidence that they mutually gave had an air of confection and artificiality, particularly in circumstances where Mr Flynn shares the use of the motor vehicle.
Accordingly, no amount will be brought to account for any alleged loan between the wife and Mr Flynn.
As a result of all of the findings that have been made, the Court is satisfied that the property falling for division between the parties is as follows.

ASSETS Ownership Value

Balance of proceeds of sale of FMH Joint 525,439

Motor Vehicle 1 Wife 37,715

Motor Vehicle 2 Husband 39,915

Artwork Wife 8,000

Artwork & antiques Husband 25,250

TOTAL 636,319

LIABILITIES

NAB Credit Card (pre-separation) Wife (10,000)

NAB Credit Card (pre-separation) Husband (50,000)

Debt to G Company Husband (2,000)

C Finance debt Husband (33,806)

Debt to V Business Husband (10,994)

TOTAL (106,800)

NET NON-SUPERANNUATION ASSETS 529,519

ADDBACKS

Legal fees paid from FMH proceeds Husband 150,000

Legal fees paid from FMH proceeds Wife 150,000

TOTAL 300,000

NET NON-SUPERANNUATION ASSETS INCLUSIVE OF ADD BACKS 829,519

SUPERANNUATION

Super Fund 2 – Accumulation Interest Wife 163,942
THE HUSBAND’S PENSION ENTITLEMENT

As has been identified, the husband is in receipt of a pension arising from his time in the Victorian public service.
In light of the comments made earlier in these reasons, the Court is satisfied that the husband’s pension entitlement was entirely accrued prior to the commencement of a committed relationship and/or the parties’ cohabitation. Thus it cannot be said that the wife made any contribution to this entitlement of the husband.
Mr O provided the Court with useful assistance in understanding the nature, form and characteristics of the husband’s pension entitlement.
In particular the Court understands that:
(a)The pension received by the husband is payable for his lifetime.
(b)The pension is non-commutable.
(c)While there is a reversionary pension for a surviving spouse, the separation of the parties would result in the wife’s loss of that entitlement.
(d)The pension is subjected to periodic indexation to reflect the increases to salaries in the Victorian public service.
(e)At the time that the parties began cohabiting the rate of pension received by the husband was an annual amount of approximately $99,376.
(f)At the present time the rate of pension received by the husband is an annual amount of approximately $151,545.
(g)The present value of the husband’s pension entitlement calculated in accordance with the approved method for any splitting order, is approximately $1,918,806.
(h)This value is not a capitalised value of the husband’s pension entitlement, but rather how much a prudent trustee “ought to have under it’s prudential supervision… in a fully funded superannuation plan to fund the benefit having regard to age gender and the nature, form and characteristics of the superannuation benefit”. [10]
(i)Approximately 7.46 per cent of the pension payment is received by the husband tax free.
(j)While there is a taxable component to the husband’s pension, because the husband is over 60 years of age, this component is now tax free. However, because the amount of the husband’s pension currently exceeds the “defined benefit income cap”, the portion of the husband’s pension over the amount of that cap (presently approximately $22,647) is taxed at the husband’s marginal tax rate.
[10] (Affidavit of Mr O filed 08 March 2022, annexure “MO-4”, page 41).
Importantly, the Court understands that the husband’s pension entitlement is capable of being split. If that were to occur:
(a)The wife is able to elect whether she receives any amount split in her favour as either a lump sum paid directly to her, or alternatively as a payment into a complying superannuation fund.
(b)If the wife elects to receive the payment as a cash payment, there is a taxation consequence.
(c)If the wife elects to receive the split into a complying superannuation fund, there is no immediate taxation consequence.
So far as the impact on the husband if a splitting order were to be made:
(a)There would be a reduction in the husband’s pension entitlement commensurate with any split to the wife.
(b)Any future indexation of the husband’s pension entitlement would be applied to the reduced pension rate, which is compounding in nature.
(c)If the wife were to receive a split of an amount of 30 per cent or more from the husband’s entitlement, the net result would be that the husband’s pension entitlement would be entirely tax free as it would put the annual rate of the pension to an amount below the defined benefit income cap.
During her oral evidence the wife indicated that whilst she was intending to take accounting advice, it was likely that if she were to receive any split in her favour, she would take any amount split to her from the husband’s pension entitlement as a lump sum.
In light of all of these matters, the agreed position between the parties, and that which the Court accepts is that:
(a)The husband’s pension entitlement be treated as an income stream available to the husband for his lifetime.
(b)The only relevance of the valuation of the husband’s pension entitlement is if the Court were to consider making a splitting order.
THE POSITION OF THE PARTIES
The parties adopted different approaches to the overall division of assets between them.
The principal dispute between them is whether or not there be a splitting order made in relation to the husband’s lifetime pension entitlements; the wife promoting such an order and the husband opposing the same.
The effect of the orders promoted by the wife is that:
(a)The wife receive 60 per cent of the non-superannuation assets of the parties;
(b)The wife receive a split of 30 per cent from the husband’s lifetime pension;
(c)The wife retain her separate superannuation entitlements; and
(d)The parties otherwise retain those assets and pay those liabilities in their sole name, possession or control.
The effect of the orders promoted by the husband is that:
(a)The husband retain 75 per cent and the wife 25 per cent of the remaining proceeds from the sale of the former matrimonial home;
(b)The wife retain her separate superannuation entitlements;
(c)The husband retain his lifetime pension; and
(d)The parties otherwise retain those assets and pay those liabilities in their sole name, possession or control.
THE APPROACH
In light of all of the matters discussed in these reasons (and those that follow), the Court considers that it is appropriate that the husband’s lifetime pension be left intact and that no splitting orders be made. While not the only reasons, the significant factors for coming to this conclusion are as follows:
(a)The pension entitlement was accrued entirely prior to the relationship of the parties.
(b)There is a significant age disparity between the parties, with the husband being beyond retirement age.
(c)The husband’s more advanced age is further compounded as a result of his significant alcohol addiction, which renders it more likely than not, that his pension entitlement will be his only source of income into the future.
(d)The wife on the other hand is 22 years younger than the husband. She is a qualified professional and she is earning a reasonable income, which she can expect to receive for the foreseeable future.
(e)The husband is paying child support of approximately $16,000. Given the husband’s receipt of the pension, the payment of child support to the wife until X reaches maturity is a certainty. In addition, the amount received at the present time appears to go some significant way to ameliorating the present disparity between the parties’ incomes.
(f)While the husband’s pension entitlement will be paid until his death, given the wife’s age and her likely continued employment, she will continue to accrue superannuation entitlements, whereas the husband will not.
That then leaves the Court to consider the balance of the parties’ assets and liabilities.
In all of the circumstances of this case, and while not the approach promoted by either of the parties, the Court considers it appropriate to approach the division on the basis of a single pool of assets; that is inclusive of non-superannuation and the wife’s superannuation entitlements.
A reason for applying a single pool is because neither of the parties have promoted that there be any superannuation splitting orders in relation to the wife’s superannuation entitlements, and no procedural fairness has been afforded to the trustees of Super Fund 2 which would enable to the court to make such an order.
While the Court accepts that the wife’s superannuation entitlements are qualitatively different to the balance of the property to be divided, for the reasons that follow the Court is satisfied that a just and equitable approach can be achieved by adopting a single pool.
THE CONTRIBUTIONS OF THE PARTIES
The financial arrangements of the parties during the relationship and in the post separation period
As previously identified, the Court is satisfied that the parties started their committed relationship in 2008, albeit that they did not officially live together until mid-2009, when the wife moved into the husband’s home at E Street, Suburb F.
While of some significance to the parties as to when their committed relationship began, it does not appear that much turns on this question, other than perhaps in attempting to identify the parties’ precise initial contributions.
However a consideration of the parties’ circumstances in 2008 as against some time in 2009, does not reveal any differences of substance.
The Court is satisfied that the following circumstances prevailed at both times:
(a)The husband was employed as a public servant and in receipt of a lifetime pension. In addition the husband undertook consulting work. The parties agreed during the course of their respective oral evidence that the husband’s income was high; the wife herself putting it at up to $500,000 per annum while he was in public service.
(b)The wife was employed at Z Organisation. It is not clear to the Court exactly what the wife’s income was at this time, however during her oral evidence the wife asserted that her income was $80,000 per annum.
(c)The husband owned a home at E Street, Suburb F, which was subject to a mortgage.
(d)The wife had modest assets consisting of artwork (which is presently valued at $1,500), minimal savings and superannuation entitlements with Super Fund 2.
So far as the husband’s initial contributions are concerned, the Court is unable to ascertain the value of his interest in the E Street property as he has failed to produce any documents that might assist in that regard. It is however asserted by the wife that when the E Street property was sold in mid-2010, the proceeds that were applied to the purchase of the former matrimonial home at H Street, Suburb K was an amount of approximately $145,000. This is not an assertion about which the husband took any issue when he filed his reply affidavit.
During cross examination of the wife, the wife was challenged about this assertion, and she ultimately accepted that in selling the E Street property and purchasing the former matrimonial home an array of costs would have been incurred including but not limited to agents fees, commissions, stamp duty and the like; the inference being that those fees had been met from the proceeds from the sale of the E Street property. The Court however has no understanding as to what those costs might have been, due to the husband’s lack of disclosure.
For those reasons, it is impossible to understand with any level of precision the value of assets that the husband brought into the relationship.
What can be said at the very minimum however, is that the net proceeds from the sale of the E Street property that were applied to the purchase of the former matrimonial home were no less than $145,000, and that this direct financial contribution was made by the husband.
During the relationship of the parties, the Court accepts that the parties were each in paid employment for the majority of the relationship and accordingly they each accrued superannuation entitlements during this time; the wife taking a period of time off when X was born.
In light of the wife’s oral evidence in relation to her proposed addback relating to the husband’s gambling, together with the totality of the parties’ evidence generally, the Court accepts that both parties worked to the best of their abilities and applied their incomes to the benefit of themselves, X and the household; albeit that the husband’s income and earning capacity was significantly higher than that of the wife..
The Court however is satisfied that the wife played a significantly greater parenting role than that of the husband during the relationship which has continued into the post separation period; not least of which was because the husband long work hours and his significant alcohol addiction.
In addition, and despite the husband’s criticisms, the Court is satisfied that the wife played a significant role in the life of the husband during his time in the public service.
In the post separation period the wife has been the primary carer for X and responsible in the main for meeting all of his needs; albeit that the husband has paid child support for X in accordance with an administrative assessment, and the wife has had the assistance of her new partner Mr Flynn.
Additionally in the post separation period, the husband maintained all of the costs and outgoings regarding the former matrimonial home (excluding a period of time where he arranged a moratorium on the payment of the home loan instalments). This includes the periods of time that the wife and X were residing in the former matrimonial home prior to moving to L Town in or about March 2020.
In Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] Coleman J observed as follows:
Given the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
In taking that leap from words to figures, the Court is also required to take holistic approach to the assessment of contributions, and weigh together all of the parties’ contributions throughout the course of their relationship.
As the Full Court identified in Dickons & Dickons (2012) 50 Fam LR 244:
24.There can be little doubt that the classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions", can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
Those comments of the Full Court in Dickons, were reinforced more recently by the Full Court in Jabour & Jabour (2019) FLC 93-898. In particular, in Jabour the Full Court warned against emphasising any particular contributions at the expense of the “myriad of other contributions that each of the parties has made during the course of the relationship” (at [35]).
Accordingly, taking a holistic approach to the question of the parties contributions, the Court finds that while the contributions of the parties to the acquisition, conservation and improvement of property were vastly different, when weighed together those contributions favour the husband as to 55 per cent and the wife at 45 per cent; a differential of ten per cent.
RELEVANT SECTION 75(2) FACTORS

Consideration now turns to the relevant factors set out in s 75(2) of the Act.
The parties relationship is somewhere between 10-11 years duration.
The husband is now 69 years of age and the wife is 47 years of age.
The husband is not presently in receipt of any separate income beyond his lifetime pension. While the Court acknowledges that the husband has undertaken some consulting work in the post separation period, given the husband’s age, and the seriousness of his alcohol addiction the Court accepts that his prospects of continuing to do so are limited in the future.
The wife is currently employed and is earning $123,435 per annum. The Court is satisfied that in light of her age, qualifications and experience, the wife has a long working career ahead of her, during which she will continue to earn a healthy income and accrue superannuation entitlements; albeit that her current superannuation entitlements and any accrued will remain preserved until she satisfies a condition of release.
The wife is to have the primary care of X moving forward.
The husband pays child support to the wife in the amount of $16,000 per annum, and given his pension entitlements there is no suggestion or apprehension that he will not continue to meet his child support obligations until X attains majority.
However, as identified by the Full Court in Clauson and Clauson (1995) FLC 92-595:
In addition, it should not be forgotten that the payment of child support is no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails.
The wife has re-partnered and it appears from the mutual evidence of the wife and Mr Flynn that they are in a committed relationship and are planning a life together.
Of significance, Mr Flynn owns a freehold unit in Suburb T, Sydney. While the value of that unit is unknown, the fact that he owns a freehold unit is of some relevance. As is the fact that the unit has been untenanted since the parties moved to L Town together in March 2020. Of equal significance is that Mr Flynn earns approximately $200,000 per annum (inclusive of bonus’). Collectively these matters suggest that Mr Flynn is financially secure. Additionally the mutual evidence of the wife and Mr Flynn satisfies the Court that there is a level of intermingling of finances between them and that the wife can rely on some level of financial assistance from Mr Flynn into the future; including in relation to the mutual purchase of a home to live in together.
The husband on the other hand is not presently in a relationship. He does not have the benefit of relying on anyone else to assist him financially and /or defray his financial commitments into the future.
The husband has lived in rental accommodation in the post separation period, and at least for the foreseeable future he expects to continue to do so. Whereas the wife is presently living in a home owned by her extended family in L Town, and she has been sharing the rental costs of that property with Mr Flynn.
While the Court can have no clear understanding of precise costs, the Court accepts that the husband will incur not insignificant costs in spending time with X. Those costs include but are not limited to the costs of petrol to travel to and from time spending (and foreseeably two roundtrips on each occasion given time spending is to be day time only), together with the costs of hair follicle testing and alcohol testing.
There are two further significant factors weighing on the Court’s mind:
(a)Firstly that the property to be divided between the parties includes an amount of $300,000 in notional property, being an amount of $150,000 received by each of the parties and applied to their legal fees in these proceedings.
(b)Secondly, the only liquid funds available for division between the parties is the sum of $525,439 from the sale of the former matrimonial home.
As identified by the Full Court in Clauson, it is important for the court to consider the “real impact in money terms” of the assessment of s75(2) factors.
When consideration is given to the effect of the adjustment as set out below, it is considered that in all the circumstances it is appropriate that there be a 10 per cent adjustment in favour of the wife on account of future needs factors.
When taken together with the adjustment in favour of the husband at the contributions stage of assessment, the effect of the Court’s findings is that there be an overall division between the parties as to 55 per cent to the wife and 45 per cent to the husband.
CONCLUSION
As identified earlier in these reasons, the net property of the parties is $993,461 (inclusive of the wife’s superannuation entitlements).
The wife holds net property of $349,657 comprised of:

ASSETS Value

Motor Vehicle 1 37,715

Artwork 8,000

Legal fees paid from FMH proceeds 150,000

Super Fund 2 – Accumulation Interest 163,942

LIABILITIES

NAB Credit Card (pre-separation) (10,000)

Significantly, $150,000 of the net assets held by the wife is notional, and $163,942 is comprised of superannuation entitlements which cannot be accessed until the wife satisfies a condition of release, which will presumably be when she reaches retirement age.
The husband holds net assets of $118,365 comprised of:

ASSETS Value

Motor Vehicle 2 39,915

Artwork & antiques 25,250

Legal fees paid from FMH proceeds 150,000

LIABILITIES

NAB Credit Card (pre-separation) (50,000)

Debt to G Company (2,000)

C Finance debt (33,806)

Debt to V Business (10,994)

As with the wife, $150,000 of the net assets held by the husband is notional, thus in real terms the husband’s net asset position is in deficit to the tune of $31,635.
A division which would see the wife retaining 55 per cent of the assets would see her retaining net property with a value of approximately $546,404.
Conversely, a 45 per cent division to the husband would see him retaining net property with a value of approximately $447,057.
The differential between the parties is an amount of approximately $99,347 in favour of the wife.
The net proceeds from the sale of the former matrimonial home is an amount of $525,439.
In circumstances where the wife presently holds net property in the amount of $349,657, she will have distributed to her an amount of $196,747 from the net proceeds of sale.
The husband on the other hand holds net property in the amount of $118,365. He will receive an amount of $328,692 from the net proceeds of sale.
If there was to be a calculation of what each of the parties are to receive, excluding their respective notional property of $150,000, then:
(a)The wife is retaining property with a net value of $396,404 of which $163,942 is held in superannuation; and
(b)The husband is retaining property with a net value of $297,057.
In addition as identified earlier in these reasons, in the event that the husband makes a successful insurance claim, any proceeds that are received by him shall be divided as to 55 per cent to the wife and 45 per cent to the husband.
THE WIFE’S COSTS APPLICATION
As indicated earlier in these reasons, during the course of the trial the wife made an oral application for costs in relation to the parenting aspect of the proceedings.
The application was made against a backdrop of parenting issues resolving on the first day of trial after the husband’s counsel had made her opening submissions.
The Court understands that the husband agreed final parenting orders in identical terms to those promoted by the wife.
The wife’s position is that she incurred unnecessary legal costs in not only readying the parenting aspect of the proceedings for trial but also generally.
In making the costs application some significant emphasis was placed upon the husband’s conduct in relation to the parenting proceedings. In particular submissions were made that the husband had misled the Court in relation to the ongoing nature of his alcohol addiction, as he had deposed to the contrary in his trial affidavit and had told various experts the same. In that context the wife also complained of the husband’s misleading conduct with respect to hair follicle testing; including but not limited to not complying with testing requests, attempting to explain away alcohol positive test results (for example suggesting that the use of hand sanitiser had led to a positive result) all of which gave an intentional false impression that the husband had not resumed consuming alcohol to excess, when in fact he was and had been.
While not entirely clear in light of the way the costs application was ultimately argued in the context of add-backs as referred to earlier in these reasons, it appears that the quantum of costs pursued by the wife was an amount of approximately $50,000-$60,000 at the lower end of the range and up to $125,000 at the higher end of the range.
The Court understands from the wife’s costs notice filed 3 June 2022, the total amount the wife incurred in respect of “family law and intervention order matters”, up to but not including trial was approximately $191,879.
In submissions, the wife’s counsel suggested that any plain consideration of how the litigation had progressed and the focus on the parenting aspects of the matter throughout, would assist the Court to understand that the majority of the legal fees incurred by the wife were in relation to the parenting aspect of the matter.
While novel, this is not an appropriate way to approach the assessment of quantum, if a costs order were to be made.
The wife’s costs application was made on an indemnity basis; something which the Full Court identified in Kohan & Kohan (1993) FLC 92-340 at 79,614 to be “an exception in this and other jurisdictions”.
The making of any costs order in family law proceedings is discretionary in nature and governed by s 117 of the Family Law Act 1975 (Cth). The starting premise is that each party bear their own costs.
It is however essential that preliminary to making any order for costs pursuant to s 117(2) of the Act, the Court must make a finding of justifying circumstances (Penfold and Penfold (1980) 144 CLR 311).
The factors that are to be considered when contemplating the making of a costs order are set out in s 117(2A) of the Act; albeit the Court may give such weight as it considers appropriate to any relevant factor (Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]). In addition, as identified by the Full Court in PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 191 FLR 294:
41. … Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
In the present circumstances and turning to the factors set out in s 117(2A) of the Act.
The financial circumstances of the parties have been canvassed earlier in these reasons, as has the effect of the orders to be made as a consequence of the s 79 exercise.
Neither party is in receipt of legal aid.
As already identified, the wife asserts that the husband’s conduct in the litigation is a justifying circumstance. The Court accepts that the husband’s conduct in relation to his alcohol addiction and in particular the concealment of its depths is a circumstance that may attract the making of a costs order.
It does not appear to the Court that the parenting aspect of the proceedings were necessitated by the failure of the husband to comply with previous orders of the Court. While the wife is critical about the extent of the husband’s compliance with orders for alcohol testing, it can not be said that his failure to comply “necessitated the proceedings”.
It also can not be said that the father was “wholly unsuccessful” despite the fact that he ultimately agreed to the orders promoted by the wife. As identified by the Full Court in Bant & Clayton (Costs) (2016) 56 Fam LR 31 at [22] this factor “… is designed for cases where an application is heard and determined and the applicant is wholly unsuccessful.”
Regard has been had to the offers exchanged between the parties in writing in relation to parenting issues. What is relevant from these exchanges is that:
(a)On 11 May 2022 the husband’s solicitors made an offer to settle the parenting proceedings “largely in line” with the orders promoted by the wife in her Case Outline filed 7 March 2022, and those ultimately made by the Court on 6 June 2022.
(b)The most significant difference between the orders that were ultimately made and those which had been promoted by the husband on 11 May 2022 was the requirement for ongoing hair follicle testing, being an order which was made in the terms promoted by the mother, and in addition a proposal of the husband which was not included in the final order, that the mother be restrained from taking X to appointments with Ms Y “or any other psychologist, counsellor or mental health professional without the express written consent of the Husband.”
(c)On 13 May 2022 the wife’s solicitors responded to the husband’s offer requiring an “urgent response” to her questions about whether the husband had undertaken any hair follicle testing since the hearing in March 2022, the results of any such testing, and if he had not undertaken testing the reasons for his failure to do so.
(d)Importantly, that correspondence from the wife’s solicitors identified “property matters remain listed for determination… We invite your client to make a proposal by way of property settlement, such that the parties can contemplate the resolution of all matters in these proceedings.”
(e)On 16 May 2022 the husband’s solicitors responded and among other things identified that the husband was due to have hair follicle testing in the week of 2 May 2022, together with an explanation as to why the testing had not been undertaken sooner and that the husband had shaved his head since the last test had been undertaken which meant that a body hair sample was taken.
(f)In addition the husband’s solicitors declined to make an offer to resolve the parenting proceedings as the parties are “… a long way apart on property matters…” and suggesting that the husband would not agree to orders which would see a split of his pension entitlements.
(g)On 18 May 2022 the wife’s solicitors responded and among other things took issue with the response given to the hair follicle test enquiry, and made comment that “Any offer made by our client would incorporate a superannuation splitting order. There would therefore seem to be very little utility in us making a proposal regarding property settlement at this time unless your client were prepared to change his position in relation to superannuation.”
What can be deduced from the exchange between the parties’ solicitors is that the parties were actively engaged in negotiations to resolve parenting matters, which included from the wife a suggestion that she wanted to resolve all aspects of the proceedings in any negotiated settlement.
In addition, it appears that the substance of the orders promoted by the wife were ones that the husband was willing to accede to as early as 11 May 2022.
That the exchange of correspondence and offers continued beyond that date, without level heads prevailing on both sides of the matter until the first day of trial, is a factor that speaks strongly against the making of a costs order.
Accordingly, in all of the circumstances of this case on balance the Court does not consider that justifying circumstances exist to warrant the making of a costs order.
For all of the reasons that I have identified I now make those orders that appear at the commencement of these reasons.

I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.
Associate:
Dated: 11 November 2022

File number(s):	MLC 4392 of 2020
Judgment of:	KARI J
Date of judgment:	11 November 2022
Catchwords:	FAMILY LAW – PROPERTY SETTLEMENT – Where parenting issues were resolved by consent on the first day of trial – Where there is one child of the relationship – Where the child will remain in the wife’s primary care due to risk factors presented by the husband’s admission he suffers from an alcohol addiction – Where the relationship consisted of an eight and a half year marriage - Where each of the parties sought to add back notional property – Where the parties engaged in a lavish lifestyle during the marriage – Where the Court is satisfied that a just and equitable approach can be achieved by adopting a single property pool – Where the husband has accrued an entitlement to a lifetime pension - Where the Court found that the pension entitlement should be treated as an income stream and should not be included in the net property pool – Where the wife is 22 years the husbands junior – Where the wife has capacity to earn a reasonable income, and can expect to do so for the foreseeable future – Where the husband is paying child support and will continue to do so in the future – Where the Court ordered an overall division between the parties as to 55 per cent to the wife and 45 per cent to the husband – Where the court dismissed the wife’s application for costs for the late resolution of the parenting issues
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35 Bevan & Bevan (2013) FLC 93–545; [2013] FamCAFC 116 Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Hickey & Attorney-General (Intervener) (2003) FLC 93-143; [2003] FamCA 395 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Mayne & Mayne (2011) FLC 93-479; [2011] FamCAFC 192 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005)191 FLR 294; [2005] FamCA 158 Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4 Stanford & Stanford (2011) FLC 93-483; [2011] FamCAFC 208 Steinbrenner & Steinbrenner [2008] FamCAFC 193 Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173 Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Division:	Division 1 First Instance
Number of paragraphs:	264
Date of hearing:	7-8 March and 6-10 June 2022
Place:	Melbourne
Counsel for the Applicant:	Ms Tulloch
Solicitor for the Applicant:	Garland Hawthorn Brahe
Counsel for the Respondent:	Mr Sweeney
Solicitor for the Respondent:	Saunders Family and Estate Lawyers

MLC 4392 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR WHEATLAND Applicant
AND:	MS ROBINSON Respondent

order made by:	KARI J
DATE OF ORDER:	11 November 2022

Asset	Ownership	Husband’s Value	Wife’s Value
Balance of proceeds of sale of FMH	Joint	525,439	525,439
Motor Vehicle 1	Wife	37,715	37,715
Motor Vehicle 2	Husband	39,915	39,915
Artwork	Wife	8,000	8,000
Artwork & antiques	Husband	25,250	25,250
Insurance Claim	Husband	Nil	80,788
TOTAL	636,319	717,107
LIABILITIES
NAB Credit Card (pre-separation)	W	(10,000)	(10,000)
NAB Credit Card (pre-separation)	H	(50,000)	(50,000)
Debt to G Company	Joint	(2,000)	(2,000)
C Finance debt	Husband	(33,806)	(33,806)
Debt to P Lawyers	Husband	(10,220)	Nil
Debt to Mr Q	Husband	(53,138)	Nil
Debt to V Business	Husband	(10,994)	Nil
TOTAL	(170,158)	(95,806)
NET NON-SUPERANNUATION ASSETS	466,161	621,301
ADDBACKS
Legal fees paid from FMH proceeds	Husband	150,000	150,000
Legal fees paid from FMH proceeds	Wife	150,000	150,000
Gambling losses	Husband	Nil	100,000+
Legal fees paid from redundancy and early superannuation release	Wife	16,849	Nil
Funds from sale of livestock	Husband	Nil	8,000
Legal fees for misconduct investigation	Husband	Nil	181,557
TOTAL	316,849	589,557
NET NON-SUPERANNUATION ASSETS INCLUSIVE OF ADDBACKS	783,010	1,210,858
SUPERANNUATION
Super Fund 2 – Accumulation Interest	Wife	NK	164,647

ASSETS	Ownership	Value
Balance of proceeds of sale of FMH	Joint	525,439
Motor Vehicle 1	Wife	37,715
Motor Vehicle 2	Husband	39,915
Artwork	Wife	8,000
Artwork & antiques	Husband	25,250
TOTAL	636,319
LIABILITIES
NAB Credit Card (pre-separation)	Wife	(10,000)
NAB Credit Card (pre-separation)	Husband	(50,000)
Debt to G Company	Husband	(2,000)
C Finance debt	Husband	(33,806)
Debt to V Business	Husband	(10,994)
TOTAL	(106,800)
NET NON-SUPERANNUATION ASSETS	529,519
ADDBACKS
Legal fees paid from FMH proceeds	Husband	150,000
Legal fees paid from FMH proceeds	Wife	150,000
TOTAL	300,000
NET NON-SUPERANNUATION ASSETS INCLUSIVE OF ADD BACKS	829,519
SUPERANNUATION
Super Fund 2 – Accumulation Interest	Wife	163,942