Whitten and Roberts
[2012] FMCAfam 647
•5 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHITTEN & ROBERTS | [2012] FMCAfam 647 |
| FAMILY LAW – Property – long marriage – informal agreement that parties would keep their finances separate – no children – claims for the Court to consider expenditure by Husband on extra-marital relationships during the relationship and post separation as part of asset pool – just and equitable considerations. |
| Family Law Act1975, ss.75(2), 79(2) |
| Clives v Clives (2009) 40 Fam LR 273 C v C (2005) FLC ¶93-220 Gollings v Scott (2008) 37 Fam LR 428 TWN v PAQ (2006) 34 Fam LR 190 AJO v GRO (2005) 33 Fam LR 134 Pierce & Pierce (1994) FLC ¶92-485 Russell v Russell (1999) FLC ¶92-877 |
| Applicant: | MS WHITTEN |
| Respondent: | MR ROBERTS |
| File Number: | SYC 7620 of 2010 |
| Judgment of: | Neville FM |
| Hearing dates: | 3 February 2012 and 3 May 2012 |
| Date of Last Submission: | 28 June 2012 |
| Delivered at: | Canberra |
| Delivered on: | 5 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Tonkin |
| Solicitors for the Applicant: | Evans Family Lawyers |
| Counsel for the Respondent: | Mr J Millar |
| Solicitors for the Respondent: | Paul & Paul Lawyers |
ORDERS
Within 60 days of the date of these Orders, the Respondent pay the Applicant the sum of $280,000.00.
In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Roberts from his interest in the (omitted) Superannuation Scheme, Ms Whitten is entitled to be paid (by the Trustee of the (omitted) Scheme) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $240,000.00 and there shall be a corresponding reduction in the amount Mr Roberts would be entitled to receive but for these Orders.
The Operative time for Order 2 is four (4) business days after the service of these Orders upon the Trustee.
Unless as otherwise provided for in these Orders, the parties are to retain the property (real and personal) currently in their possession.
Each party will be solely responsible for any liability in their name as at the date of these Orders and will indemnify the other party and keep them indemnified with respect to those liabilities.
In the absence of any submissions in writing within seven (7) days of the date of these Orders, there will be a self-executing Order that each party shall pay their own costs.
IT IS NOTED that publication of this judgment under the pseudonym Whitten & Roberts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
SYC 7620 of 2010
| MS WHITTEN |
Applicant
And
| MR ROBERTS |
Respondent
REASONS FOR JUDGMENT
Introduction
In no pejorative way do I observe that this marriage of approximately 16 years was conducted between parties, who are now aged 55 years (Wife) and 58 years (Husband), in a significant number of respects, with a particular – and often singular – eye on financial management. In a great many dimensions, it was more of an economic partnership. Of course, people are free to conduct their marital relationship as they choose. I do not suggest that there was little or no tenderness, romance or love between the parties during their relationship. However, the traditional marriage vow that promises to take the other “for better for worse, for richer for poorer”, and often with the additional pledge or acknowledgement, according to the Book of Common Prayer, “with this Ring I thee wed, with my body I thee worship, and with all my worldly goods I thee endow”, was noticeably nuanced, if not varied, on the facts of this matter.
Put another way, while there were clearly areas of common interest and common life together, there were markedly distinct and discernibly individualised lives of each of the parties. Of course, the gravamen of these reasons and the duty of the Court under s.79(2) of the Family Law Act 1975 (“the Act”) is to ascribe properly to each party, in accordance with the evidence, and according to what is just and equitable, what is due to each of them in the light of their quite unique relationship.
For example, rather early in her oral evidence, the Wife confirmed that, from the outset of the relationship, the parties agreed to keep their finances separate. Thus, in the course of cross-examination, she said:[1]
[1] Transcript (3rd February, 2012) pp.17 – 18. Unless otherwise specified, all references will be to the Transcript of this date, thus “T followed by page number.” See also T 18 - 19, where the Wife confirmed that the parties kept their finances throughout their marriage just as they had agreed at the start of the relationship, namely, separately.
Now, when you started living together, do you agree with this proposition: that you made an agreement that, in fact, you would keep your finances separate from each other?‑‑‑We did make that agreement.
And that’s what happened, wasn’t it, with very few exceptions?‑‑‑It was. We were mature adults when we entered in the relationship.
I’m not asking you for the reasoning. I’ve just asked ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ whether you agree with that proposition?‑‑‑Yes.
In the light of this (and similar) evidence, and the Husband’s reliance on it, a significant issue in the case is whether, and to if so to what degree, this “agreement” (which was never reduced to writing)[2] between the parties to keep their finances separate – which was honoured to a significant degree throughout the 16 year relationship – should be determinative, or otherwise significantly inform, the Court’s just and equitable assessment of property orders.
[2] See T 18.
Two examples may be given at the outset to highlight some of the further unique features of this matter, and of the relationship between the parties.
First, in the course of the Wife’s detailed submissions, her learned Counsel contended that among many indicia of a shared, common life between the parties, described by Counsel as a “joint venture” (I need not comment on the language and connotation of financial enterprise associated with the terminology of “joint enterprise”), it is said (emphasis added) that “the Wife permitted X to live with the parties from time to time without any additional financial contribution and undertook cooking and housework for X from time to time.”[3]
[3] See Applicant Wife’s Submissions, filed 24th May 2012, par.7(b).
“X” is the Husband’s daughter from a prior relationship. At the time of the commencement of the parties’ relationship in 1993 X was 8 years old.[4] The parties to the current proceeding had no children, and it was not in issue that the parties agreed to have no issue (i.e. no offspring).
[4] The parties commenced cohabitation in (omitted) 1993 and married in (omitted) of that year. The parties separated in April 2009: thus a relationship of 16 years. Mr Roberts has re-partnered; the Wife has not.
The evidence of the Wife in relation to X was relevantly in the following terms:[5]
[5] T pp.20-21.
And you said to him on a number of occasions words to the effect, “I know your daughter has to come around, but keep her out of my way,” or words to that effect?‑‑‑Not exactly.
Well, words to that effect?‑‑‑She was welcome in my home. Words to that effect were around the, “I don't want any lip if – and in that case, keep her out of my way.”
Ma’am, you didn’t want to be involved in care. That was really the point, wasn’t it?‑‑‑No, I didn’t. She was his daughter and still is his daughter.
Indeed. And he usually arranged for her visits to coincide with the weekends when you were participating in (omitted) activities, didn’t he?‑‑‑We negotiated together that X would come on one of those weekends so that he and I could spend more time together and he could devote himself to his daughter solely.
Ma’am, you preferred that she come on the weekends when you were at the (omitted), didn’t you?‑‑‑Yes.
And you were at the (omitted) about - was it about every second weekend?‑‑‑No, one weekend a month.
And then when you were at home on a weekend and it was a weekend when X was visiting, my client would take X out for the day to various activities – cinema, shops, whatever it might be. Do you agree with that?‑‑‑That is correct, yes.
That gave you time to yourself?‑‑‑It did and to do housework.
And gave him time with his daughter?‑‑‑It did.
And when his daughter was at home and you were at home, he attended to looking after her, didn’t he?‑‑‑He did.
Slightly later in her cross-examination, I inquired about the nature of her relationship with Mr Roberts’ daughter.[6] The following exchange took place:
[6] T pp.25-26.
Ms Whitten, can I just ask you this. Nothing turns on it, but in terms of your relationship with Mr Roberts’ daughter X, how would you describe it?‑‑‑Civil. As in she was welcome in my home, but I’ve never been one to tolerate bad behaviour, so - - -
No. Well, I think it would be a reasonable comment – at least I hope it is – that most people don’t, though. But I’m just trying to get something of a feel in terms of either the dynamics or the nature of the relationship between you and X?‑‑‑Yes.
And you say that it’s civil?‑‑‑Yes.
If you were to speculate, and I appreciate that really that that’s all it probably can be, how would you think X would describe her relationship with you? In similar terms?‑‑‑Similar.
And has it basically stayed the same for the time that you’ve known her?‑‑‑Yes.
Would you ever describe the relationship as close?‑‑‑No.
In the light of this evidence from the Wife, I have some difficulty seeing the basis for Counsel’s submission to which I have referred. Leaving aside what is intended by Counsel’s reference to “without any additional financial contribution”, which might be taken to be a suggestion that some financial recompense would normally be sought for any child staying with the couple (respectfully, a curious notion of ‘family’), with the Wife agreeing (among other things) that Mr Roberts attended to X’s needs and welfare when his daughter visited, I have significant difficulty seeing how the claim for X’s visit – said to be “permitted” by the Wife – can be an indication of this marriage being a “joint venture.”
A second and rather different example concerns the evidence of Mr Roberts – helpfully supplemented by Ms Whitten.
Mr Roberts does not deny that in the course of his relationship with Ms Whitten he had a number of extra-marital relationships, of which she was unaware, and which involved the expenditure of funds, including for the purchase of property and jewellery and payment for holidays. Save as to the quantum involved, these matters were essentially not disputed. The Wife also contended that Mr Roberts purchased a car for one of his paramours, but he disputed this. Ultimately, more information about these matters came to Ms Whitten from Mr Roberts’ first female friend, Ms S, when she and Mr Roberts ended their relationship and she then sided with and aided Ms Whitten, as Mr Roberts pursued a relationship with the lady who has become his current Wife but with whom he does not [yet] reside because he works in (country omitted) and she lives and works in Sydney.
While learned Counsel for Mr Roberts understandably took objection on the ground of relevance to the material (both as to content and as to volume) in the Wife’s trial affidavit concerning these extra-marital sorties,[7] the Wife pressed the Court to take into account the expenditure by the Husband, during the marital relationship, on these extra-marital relationships. Although not strictly a ‘waste’ argument, it is submitted by the Wife that it is nonetheless a factor that should be taken into consideration by the Court in determining what are just and equitable orders.
[7] For example, see pars.95, 103, 113, 120-121, 122, 125-130 & 143 of the Wife’s trial affidavit, and par.13 of the Respondent Husband’s Submissions.
It is not disputed that the Wife earns an annual income of $110,000, while the Husband earns, via income and allowances, $244,174 per annum. The Wife contends that her employment is somewhat tenuous, while (she says) the Husband’s career will continue to rise and that he will continue to earn significantly more than she can or will.
The Wife has not re-partnered, while (as previously noted) Mr Roberts has re-married. His current Wife has a half-interest in a property in (omitted) in Sydney, worth approximately $600,000 (net); she earns approximately $420 (gross) per week, has a small amount of superannuation, and an interest in a company, the value of which was of some dispute. In any event, to speak in somewhat general terms here, there is no question that Mr Roberts is in a significantly superior financial position to Ms Whitten, both in terms of income (current and future) and in terms of his Wife and her income-earning and property holdings. No such support is [currently] available to the Wife.
Two further relatively short, preliminary matters may be noted here.
First, on 21st June 2012, by consent, the Court made orders for the proceeds of sale of a property in Property N, purchased in the sole name of Mr Roberts in 2008, be held in an interest bearing account, pending the determination of the current proceeding. Those same consent orders also provided for the net proceeds of sale of a property in Property B in the ACT, purchased in 1999, also be held in trust until either the determination of the current proceeding, or written agreement between the parties.
Secondly, there was a very significant impasse between the parties over an extensive list of chattels – from designer furniture, to period history books, to dinner suits, to (omitted), and much more besides (such bland descriptions is a genuine disservice to the detail and quality of the listed items) – and who should retain what. Fortunately, that impasse was overcome in the course of the first day of the trial. Consent orders were made on 23rd February 2012 in relation to the chattels.
Finally, according to the agreed ‘asset schedule’ that was used in the course of the trial, and excluding items that are subject to the Court’s determination in relation to add-backs, the combined net property pool totals $4,114,225, comprised of [combined] superannuation of $2,468,588, and non-superannuation assets of $1,645,637.
After setting out the orders sought from each party, these reasons proceeded by a consideration of (a) the evidence – oral and documentary – and (b) the usual four-step process.[8] It is appropriate here, however, to note that there is an agreed ‘balance sheet’ of the assets (to which I have previously referred); accordingly, the first step of identifying the asset pool is [relatively] certain, save for some contest in relation to some add-backs.[9] It is in relation to steps two (contributions) and three (s.75(2) factors) that command the Court’s primary attention.
[8] See, for example, AJO v GRO (2005) 33 Fam LR 134 at [46].
[9] See Respondent Husband’s Submissions, filed 21st June 2012, par.1.
Orders Sought
Orders sought by the Wife:
1. Subject to these Orders, the wife be declared sole and absolute owner as against the husband of the following assets in her name, possession or control including but not limited to:
i. The property known and situate at Property C, ACT;
ii. Monies standing to the credit of the wife in any savings or other account;
iii. Shares held in any publically listed company in the wife’s name;
iv. The wife’s superannuation entitlements;
v. The wife’s motor vehicle;
vi. Contents and items of personalty.
2. Within 7 days of the date of these orders the husband will cause the funds held in the (omitted) Bank Term Deposit account (account number (omitted)) in the sum of $320,000 to be paid to the wife.
3. Within 7 days of the date of these Orders the husband will cause the funds held in trust by Joseph Talaritta solicitor to be applied as follows:
a. To the wife in the sum of $205,000;
b. The balance then remaining to the husband.
4. Subject to these Orders the husband be declared sole and absolute owner as against the wife of the following assets in his name, possession or control including but not limited to:
i. Monies standing to the credit of the husband in any savings or other account;
ii. The husband’s superannuation and pension entitlements.
iii. Contents and items of personalty.
5. In accordance with s.90MT(1)(a) of the Family Law Act 1975 (the Act) whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Roberts from his interest in the (omitted) Superannuation Scheme, Ms Whitten is entitled to be paid (by (omitted)) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $200,000 and there is a corresponding reduction in the entitlement Mr Roberts would have had but for these Orders.
6. Order 5 binds the Trustee of the (omitted) and these Orders take effect from the operative time being the fourth business day of service of these Orders on the Trustee.
7. Each party will be solely responsible for any liability in their name as at the date of these Orders and will indemnify the other party and keep them indemnified with respect to those liabilities.
8. The wife will make available to the husband the items hereunder set out, at a date and time negotiated with the husband (such items hereinafter referred to as the “husband’s items”) with the cost of such removal to be borne by the husband:
8.1 (omitted) Desk and (omitted) style bookcase;
8.2 Silver napkin rings (already collected);
8.3 The (omitted) coffee maker, provided that the husband return to the wife the (omitted) coffee maker;
8.4 Set of weights consisting of heavy weights and barbell;
8.5 The (omitted) silk carpet (already collected);
8.6 (omitted) cuff-links (already collected);
8.7 (omitted) (already collected);
8.8 Book (omitted) (already collected);
8.9 Book (omitted) (9 Volumes);
8.10 The (omitted) dinner suit;
8.11 The (omitted) silver salver;
8.12 2 (omitted) wine stands;
8.13 (omitted) silver wine pourer;
8.14 (omitted) silver place card holders;
8.15 8 Silver butter dishes;
8.16 (omitted) Coffee Service (coffee pot, milk jug and sugar bowl);
8.17 4 small silver mugs;
8.18 (omitted) Cutlery Set for 8;
8.19 Leather bound cigar box;
8.20 (omitted) Crystal;
8.21 (omitted) Crystal wine decanter water jug;
8.22 Serving dish – high quality glass art;
8.23 (omitted) poster in French;
8.24 Gold and Silver plated coffee pot;
8.25 Desk set made from the (omitted);
8.26 The badges from (omitted) course and framed photo;
8.27 Sterling silver small box with (omitted);
8.28 (omitted) print;
8.29 (omitted) Etching female statue;
8.30 (omitted) fountain pens and roller ball;
8.31 All books other than the (omitted);
8.32 (omitted) Wardrobe;
8.33 The husband’s personal diaries and financial papers;
8.34 A pair of hiking boots;
8.35 Silver plate tray;
8.36 One chair for the round table.
9. For the purpose of the Order 8, the husband must give the wife not less than 14 days notice of his intention to arrange a removalist to attend upon the Property C property and the wife shall provide to the husband’s removalist a copy of the inventory of the said husband’s items.
10. The husband and wife agree that any of the husband’s items that the husband cannot remove from the Property C property, will remain at the Property C property in safe keeping by the wife on the following conditions:
10.1 The husband will maintain a policy of insurance as against the husband’s items and pay as and when they fall due all premiums of insurance until such time as the husband has removed all of the said items from the Property C property;
10.2 In the event of any loss or damage to the husband’s items (save for fair wear and tear) the husband will be paid the amount recovered under the policy of insurance in lieu of the items lost or damaged;
10.3 That the wife be at liberty to use the husbands’ items whilst they remain in the Property C property and will maintain the husband’s items in a fair and reasonable condition;
10.4 That upon the husband’s return to Australia from his current posting (anticipated to be in 2014) the husband will give the wife 14 days notice of his intention to remove the balance of items remaining at the Property C property, the removal of those items to be at the husband’s sole expense;
10.5 That the husband will pay for any damage caused to the wife’s home during the removal of his property, payment to be within one month of the damage occurring.
11. Pursuant to s.106A of the Family Law Act that if either party refuses or neglects to comply with a direction to execute any deed, document, instrument or writing to give effect to these Orders, then the Registrar of the Family Court of Australia can be appointed to execute the deed, document, instrument or writing in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed, document, instrument or writing.
12. That these Orders are binding upon the parties’ heirs, executors and assigns.
NOTATION
A. The parties note that this Order, and payments made as a result, will be effected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on the 18th May 2004 and the Family Law (Superannuation) Regulations which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
Orders sought by the Husband:[10]
[10] These Orders sought were updated after the trial concluded following the sale of two of the properties. Orders 4 as sought by Mr Roberts in relation to a large number of not insignificant chattels, as indicated earlier in these reasons, was resolved on the first day of the trial and is included here, as with the Wife’s orders sought, solely for the sake of completeness.
1. That the Orders made 21 June 2012 be discharged and that proceeds of sale of both properties may be paid to the husband.
2. The husband be declared sole and absolute owner and against the wife of the following assets in his name, possession or control including but not limited to:
2.1 Monies standing to the credit of the husband in any savings or other account;
2.2 The husband's superannuation and pension entitlements;
2.3 Contents and items or personalty, motor vehicles and chattels.
3. Subject to Order 4 below, the wife be declared sole and absolute owner as against the husband of the following assets in her name, possession or control including but not limited to:
3.1 The property known and situate at Property C, ACT;
3.2 Monies standing to the credit of the wife in any savings or other account;
3.3 Shares held in any publically listed company in the wife's name;
3.4 The wife's superannuation entitlements;
3.5 Contents and items of personalty, motor vehicles and chattels.
4. That the wife make available the items hereunder set out to the husband:
4.1 The (omitted) pepper shaker.
4.2 The (omitted) plate wine stands
4.3 (omitted) teapot
4.4 The (omitted) coffee maker
4.5 Set of Weights (but not the hand weights)
4.6 The wine collection
4.7 The (omitted) Leather pen holder
4.8 The (omitted)
4.9 Book (omitted)
4.10 Book (omitted) (9 Volumes)
4.11 The (omitted) dinner suit;
4.12 The (omitted) silver salver;
4.13 2 (omitted) wine stands;
4.14 (omitted) silver wine pourer;
4.15 (omitted) silver place card holders;
4.16 8 Silver butter dishes;
4.17 (omitted) Coffee Service (tea pot, milk jug and sugar bowl);
4.18 4 small silver mugs;
4.19 2 (omitted) candlesticks;
4.20 (omitted) Cutlery Set for 8;
4.21 Leather bound cigar box;
4.22 (omitted) Crystal;
4.23 (omitted) Crystal wine decanter water jug;
4.24 Serving dish – high quality glass art;
4.25 (omitted) poster in French;
4.26 Gold and Silver planted coffee pot;
4.27 Desk set made from the (omitted);
4.28 the badges from (omitted) course and framed photo;
4.29 Sterling silver small box with (omitted);
4.30 (omitted) print;
4.31 (omitted) Etching female statue;
4.32 (omitted) fountain pens and roller ball;
4.33 All books other than the (omitted) 1 to 9, 5 (omitted) Novels and the (omitted).
4.34 (omitted) Wardrobe
4.35 The husband’s personal diaries and financial papers
4.36 A pair of hiking boots
4.37 All of the husband’s books other than those specified in the wife’s affidavit sworn 21 October 2011;
4.38 silver plate tray;
4.39 chairs for the round table.
(“the husband’s items”)
and that the wife do make available the husband's items which are declared to be his sole property upon the husband giving not less than 7 days notice to such removalist or agent as the husband may nominate.
5. For the purpose of the preceding order the husband must give the wife not less than 7 days notice of his intention to arrange a removalist to attend upon the Property C property and the wife shall provide to the husband’s removalist a copy of the inventory of the said items.
6. Each party will be solely responsible for any liability in their name as at the date of these Orders and will indemnify the other party and keep them indemnified with respect to those liabilities.
7. That except as provided by these orders each party shall be and remain the sole, legal and beneficial owner of all real and personal property in their name and possession as at the date of these orders.
Outline of Evidence
The following overview will assist in the consideration of the relatively narrow range of discrete issues addressed in the course of the trial. I take little of the following to be contested.
Prior to the commencement of their relationship, both parties commenced contributing to superannuation, the Wife in 1979, and the Husband in 1981.
In September 1989, the Wife inherited a half interest in a property in (omitted) from her Father’s estate, together with $40,000 in cash.
In 1991, the Husband separated from his first wife, with whom he had a daughter, X, who is now approximately 26 years old.
The parties commenced co-habitation in (omitted) 1993 and married in (omitted) of that year.
Between 1993 and 1995, the parties lived, without paying rent, in the Wife’s Mother’s property in (omitted). While living in the (omitted) property, the Husband contributed 50% towards the cost of food and utilities.
In 1995, the (omitted) property was sold and the Wife received $265,000 from it, which sum she used to purchase a property in Property C, (ACT), for cash.
In June 1995, the Wife moved to Canberra for employment reasons, while Mr Roberts remained living in the (omitted) property until September, when he too moved to Canberra for employment.
From September 1995, the parties resided at the Property C property, which was regarded as the matrimonial home.
In 1998, the Husband contends that he received an inheritance of $82,191. The Wife says that she was unaware of the inheritance, and in turn, what actually became of it.
The Husband further contends that in 1999 he received $55,000 from his first Wife pursuant to a property settlement with her. As with the inheritance, there are conflicting accounts or assertions in relation to the use of these funds.
In 1999, another property was purchased, in the Husband’s sole name, which can conveniently be styled the Property B property, which was also in Canberra. The purchase price was $170,000, with a mortgage of $100,000. The Husband says that he used the inheritance from his Mother’s estate (the $82,191 earlier referred to) to aid this purchase.
In early 2000, the Husband took up employment with the (employer omitted) in (country omitted). His contract was for two years. The Wife remained in Canberra, employed with (employer omitted). During his employment in (country omitted), Mr Roberts’ income was tax free.
In March 2001, the Wife resigned her (omitted) position to take up employment with (employer omitted) in (country omitted). She continued to work with (employer omitted) until approximately mid 2002, when she moved to (country omitted) to reside with the Husband. For the first six months of her time there, she was not in paid employment, but then secured a position with the (employer omitted) at (omitted).
In late 2007, the parties returned to live in Canberra at the marital residence [Wife’s property] in Property C. Both of them resumed employment with the (omitted).
Some improvements were undertaken on the Property C property.
Also in 2007, a Honda car was purchased, with $30,000 being paid by the Husband and $13,000 by the Wife. The vehicle was registered solely in the Wife’s name.[11]
[11] The Husband says that the vehicle was sold, post separation, without his knowledge. The Wife says that it was sold in October 2009 for $30,000. The Wife says that she with-held the Husband’s share of $15,000 (a curious division given the initial outlay) and those proceeds applied to outstanding debts of the relationship. Counsel for the Husband points out, in my view not unfairly, that (a) the Husband has no way of knowing what happened to those proceeds in any detail, and (b) it is unthinkable, given the way the parties looked after their financial matters, that there were any remaining debts of the marriage and so long after the parties separated in April 2009. In those circumstances, I agree that the $15,000 should be added back into the pool.
In July 2008, the Husband moved to Sydney with his employment, and in September of that year, he purchased a property in Property N for $389,000.
Between July and September 2008, the Husband lived rent free in the Wife’s Mother’s property in (omitted) in Sydney, and allegedly (at times) did so with a Ms S, with whom he was then, or shortly thereafter, engaged.
In April 2009, the parties separated, essentially upon the Wife finding out about the Husband having a [long-time and continuing] affair with Ms S.
While still in a relationship with Ms S, the Husband began a relationship with Ms F, who he later married in (omitted) 2010. Ms S subsequently seems to have provided certain details about her relationship with Mr Roberts to Ms Whitten.
I interpose to note here that, of course, extra-marital relationships are not usually of any relevance to property proceedings, but they are recorded here because part of the Wife’s case is that there were certain expenditures by Mr Roberts, certainly in relation to Ms S (such as the assistance with the purchase of property in the (country omitted)), that should, in her view, be taken into account in the determination of the just and equitable orders to be made in the current proceeding. Ms Whitten also contended that certain post-separation expenditure by Mr Roberts in relation to Ms F, such as his financial support for her in the sum of $250 per week, is also a matter that warrants the Court’s attention and consideration.
The Wife filed the Initiating Application in January 2011, and in the same month, the Husband took up a position – still with the (employer omitted) – in (country omitted).
In her Case Outline, Counsel for the Wife submitted that the principal issues for determination are: (a) the weight to be given to the Wife’s initial contribution in relation to the Property C property “which enabled the parties to accrue significant savings and investments and to purchase subsequent properties”, (b) whether the Husband has made full and frank disclosure, (c) the assessment of contributions, and (d) whether any [further] adjustment in the Wife’s favour was appropriate under s.75(2) on the basis of the disparity in income between the parties. Respectfully, this is a convenient summary of issues for consideration.
The Wife’s Evidence
First, I leave to one side the Wife’s understandable grief at the demise of her relationship with the Husband, as well as a degree of angst if not hostility in finding out about the extra-marital relationships of the Husband. Unless otherwise indicated, I do not think it coloured her evidence sufficiently for me to discount her evidence in any material respect.
Secondly, and partly related to the first comment, I do not think that Ms Whitten’s assistance in her evidence against Mr Roberts, courtesy of the spurned Ms S, similarly tainted the Wife’s evidence either at all or sufficiently, for those parts of it relating to material(s) from Ms S.
Thirdly, it was not disputed that there were, at least at the outset of the trial, a significant number of chattels that belonged to Mr Roberts but which were still in the possession of Ms Whitten. She also retained his diaries as well as various documentary records of Mr Roberts. Clearly, in addition to Ms Whitten feeling aggrieved at Mr Roberts’ actions, and in addition to her using various entries from those diaries to assist her case (e.g. various entries and a schedule relating to them became Exhibit M), by so keeping his records hampered Mr Roberts to quite some degree in the preparation and presentation of his case.[12] Accordingly, subject to specific comment later, to the degree that he was so hampered, issues raised in relation to his alleged non-disclosure are, in my view, rather more shrill and unsustainable than they otherwise might be.
[12] For example, see the discussion at T 53 – 56.
Subject to the above comments, and those recorded at the outset of these reasons which I need not and will not repeat, the Wife’s evidence was of quite limited scope.
Thus, for example, there was a difference, in my view, of degree regarding improvements to the garden at the Property C property. Ms Whitten played down somewhat the Husband’s contributions in this regard. Similar questions of degree arose in relation to some stone-work: did he do it all? Ms Whitten said he did most of it.[13] Such distinctions are hardly illuminating or of assistance to the Court.
[13] See T 38 – 39.
Of more direct relevance was Ms Whitten’s evidence that her decision, obviously discussed with Mr Roberts, to take up a job with (employer omitted) in (country omitted) was a ‘great career opportunity.’[14] This is particularly important because of the claim that Ms Whitten has limited career prospects, and not just in comparison with Mr Roberts. Further, she confirmed that she secured a masters degree in (omitted) which, the Court may assume, will not have damaged her career prospects.
[14] T 42 & 43.
In relation to the parties’ time in (country omitted), Ms Whitten confirmed that Mr Roberts paid the rent (which included utilities) and that he contributed to a health care scheme that included her as a beneficiary.
In relation to the purchase of a Honda vehicle that was registered in her sole name, Ms Whitten confirmed that Mr Roberts paid $30,000 of the purchase, and she paid $13,000.
Ms Whitten also confirmed that both the Property B and Property N properties were purchased in Mr Roberts’ sole name.[15] The parties did not operate a joint bank account.[16]
[15] See T 48.
[16] T 49.
Post separation, the Wife has received $40,000 from her deceased Mother’s estate, with the likelihood of further funds to come, of relatively modest compass, from the estate.
The Husband’s Evidence
Mr Roberts’s evidence was given over two days – firstly on 3rd February, and again on 3rd May. As will be clear soon enough, his cross-examination was much more extensive than that of Ms Whitten. In part, that was because of certain inaccuracies and omissions in his first trial affidavit that was filed in October 2011, and an updated affidavit and financial statement, filed in January 2012.
As with Ms Whitten, I took Mr Roberts’ evidence to be essentially truthful. I took his explanations of any omissions to be genuine and not calculated or designed to be a means to hide or obfuscate financial matters from Ms Whitten.
Respectfully, he was unblushingly candid about his ‘other relationships’, and I took the few matters he said he genuinely had forgotten (e.g. for how long he supported his daughter financially, or his advance of $55,000 to his first Wife in relation to a property she purchased in (omitted), which advance was made one year prior to his relationship commencing with Ms Whitten)[17] to be reasonable in the circumstances – curious, perhaps, but nonetheless genuine. That said, there was a somewhat peculiar tension in his evidence. By this I mean that someone like Mr Roberts, who gave evidence clearly and with particularity, and who kept regular if not detailed notes on such a large number of things in his diaries, also confirmed that matters of administration were not his forte and that he relied – and to a significant degree I might add – on Ms Whitten and her organisational prowess.
[17] See T 77 – 77 regarding Mr Roberts’ daughter, and MFI 1, and T 66 – 67 & 68 – 69 regarding the ‘advance’ to his first Wife. There was also some evidence, a tad opaque, in relation to Mr Roberts receiving some funds from the sale of a property in (omitted) in 1999 and that those funds were said to be used in the purchase of the Property B property. See T 7 (3rd May 2012).
Two other comments are apposite at this juncture.
First, the totality of the evidence of both parties satisfies me that, however unique their relationship, which I described in the course of the trial as rather akin to two ships travelling in the same direction but on parallel courses, there was more than sufficient mutuality and common life between the parties that it would preclude me from making orders as sought by Mr Roberts, whereby each party basically kept what property is currently in their possession.[18]
[18] Among other places regarding the ‘two parallel ships’ analogy, see T 72.
Secondly, the allegations made by Ms Whitten concerning Mr Roberts’ alleged non-disclosure are not supported on the evidence. For example, while he made no mention of Ms F, his current Wife, in his October affidavit and financial statement, he disclosed in his January 2012 financial statement her financial position.
Further, I accept the submission by Mr Roberts’ Counsel to the effect that even where there are instances of inaccuracy in the evidence (of either party) that does not necessarily translate into the Court making a finding of deceit, duplicity or knowingly giving false evidence. Moreover, I repeat that Ms Whitten with-held Mr Roberts’ diaries and various personal papers and records, which necessarily made it more difficult for him to provide all the information sought of him. I note too that Ms Whitten confirmed that she had the diaries, that she kept them, notwithstanding that there was a request from Mr Roberts’ solicitor for their return.[19]
[19] See T 28.
Turning then to his evidence proper on particular matters, I note the following.
Mr Roberts confirmed that he lived, essentially ‘rent free’ between 1999 and 2000, firstly at the Wife’s Mother’s premises in (omitted) and later in the Wife's Property C residence. He confirmed that he contributed otherwise, such as with the purchase of food and generally made contributions of various kinds to which I have already referred, including that Ms Whitten paid the utilities and other expenses on the Property C property and later provided Mr Roberts with a schedule of those expenses which he then reimbursed to her.[20]
[20] See T 75.
At the outset of these reasons I noted the Wife’s confirmation of the agreement between the parties to keep their finances separate. When asked about this, Mr Roberts said that his emphasis on the parties keeping their finances separate did not mean that the parties necessarily operated their finances with a lack of transparency between them.[21]
[21] T 74.
Mr Roberts confirmed that he and Ms Whitten went together to a joint financial planning meeting, but which he considered to be a waste of time.[22]
[22] T 80 – 88.
Of more direct relevance was Mr Roberts’ evidence that, prior to his move to (country omitted), he gave Ms Whitten a power of attorney, details of his bank accounts, and said that he trusted and relied on her. He also agreed that he was still in a loving relationship with Ms Whitten at that time (in 2000) as “husband and wife.”[23]
[23] See T 90 – 92, and Exhibit C.
Mr Roberts confirmed that he advanced $14,000 to his then fiancée (Ms S) in November 2009, which was post-separation from Ms Whitten. He also confirmed that he had been in a relationship with Ms S since 2002, that he purchased an engagement and wedding ring for her worth ‘a few thousand dollars’, and that the $14,000 is now ‘lost’ – i.e irrecoverable.[24] He denied emphatically that he purchased a new vehicle for or with Ms S, which is referred to in Annexures H and I to Ms Whitten’s affidavit, filed 13th January 2012.
[24] T 90 – 96. All such expenditure was post-separation.
A large part of Mr Roberts’ cross-examination that was resumed on 3rd May focussed on entries in his diaries. I took then, and do so now in these reasons, that this line of questioning was to reinforce the submission that the parties were in fact in a relationship that was financially (and otherwise) intertwined and which, thereby, warrants orders for some financial adjustment that are more in keeping with those sought by the Wife, rather than those sought by the Husband. And this is so notwithstanding the mutually acknowledged agreement that the parties lived financially separate lives.
Thus, Mr Roberts acknowledged the entries in his diaries, between 2002 and 2005 where he (a) noted or referred to “our collective and individual lives”, and (b) recorded positive comments about Ms Whitten, including their “joint personal goals.” He said that the entry that referred to the preservation of the marriage “wasn’t a focus but it was an aspiration.”[25]
[25] See Transcript (3rd May 2012) pp.12 – 21. Hereafter, all entries will be to the transcript of this date, and in the usual, abbreviated form “T followed by page number.” Somewhat in passing, I note that Mr Roberts also confirmed that he held an investment of $10,000 in some pearls. T 11.
Mr Roberts confirmed that the premises in (country omitted) were subject to a joint lease, and that while stationed there, he got a dependant allowance for Ms Whitten.[26] He also agreed that while the parties lived in (country omitted), and during his various travels away from that city, Ms Whitten “kept the home fires burning”, including significant home-making responsibilities, to which Mr Roberts said he contributed also, which I have no doubt he did.[27]
[26] See T 25.
[27] T 32.
He rejected emphatically that Ms Whitten effectively acted as his personal secretary.[28] There is little doubt, however, that Ms Whitten did much of the organising of the moves to and from (country omitted).
[28] See T 31.
In relation to his current Wife, and in addition to what is set out in his most recent financial statement in relation to her, Mr Roberts rejected the suggestions that a company with which his Wife is associated is a multi-national corporation, and confirmed that she has interests in two properties in suburban Sydney (at (omitted) and (omitted)).[29]
[29] T 44 – 46.
Mr Roberts confirmed that his posting to (country omitted) will conclude in February 2013.
In addition to what I have already said, in my view, the evidence generally and the diary entries in particular to which I have referred, and which became Exhibit M, confirm that notwithstanding the agreement between the parties to keep their finances separate, the marital relationship between Ms Whitten and Mr Roberts was more than merely a financially functional or utilitarian convenience. In my view, there were plainly a diverse range of contributions made by the Wife during the relationship, housekeeping and otherwise. The task of assessing them in the light of the unique features of this matter is, therefore, a matter of some delicacy.
The Asset Pool
Save as noted in the separate schedule of add backs, the asset pool as agreed during the trial and for the purposes of discussion is as follows:
NON SUPERANNUATION ASSETS
| ITEM | WIFE | HUSBAND | AGREED/NOT AGREED |
| Real property | |||
| Property C | $695,833 | Agreed | |
| Property B (sale proceeds) | $400,000[30] | Agreed | |
| Property N (sale proceeds) | $320,000[31] | Agreed |
[30] Originally agreed as being worth $500,000, the Court was informed by way of email dated 28th August 2012 that this property had sold for a net realisation of $399,061.55 which is currently being held in Trust with the conveyancing solicitor. For the purposes of the asset pool and with the consent of the parties, this figure has been rounded to $400,000.
[31] Following the completion of the trial, the Court was similarly notified that the Property N property realised net proceeds of $318,000 resulting in a term deposit in the husband’s name of (rounded to) $320,000. Noting the sale of both properties and subsequent adjustments to their respective values, the ‘liabilities’ section of the asset table containing the outstanding mortgage amount has been removed.
| Cash | ||
| (omitted) Bank | $5,044 | Agreed |
| (omitted) Bank | $17,253 | |
| (omitted) Bank savings | $3,000 | Agreed |
| (omitted) Bank Chq | $135 | Agreed |
| (omitted) Bank Savings | $40,198 | Agreed |
| (omitted) Bank Account | $12,381 | Agreed |
| (omitted) Cash Investment | $102,891 | Agreed |
| Pearls | $10,000 | Evidence these exist (3rd May 2012 transcript pp.10-11) |
| (omitted) Bank | $1,182 | Agreed |
| (omitted) Bank | $2,218 | Agreed |
| (omitted) Credit Union | $1,189 | Agreed |
| Shares/Investments | ||
| $7,615 | Agreed | |
| $26,698 | Agreed | |
| SUBTOTAL | $728,880 | $916,757 |
ADD BACKS
| Mazda | $24,000 | NOT AGREED |
| Transferred to (country omitted) | $20,000 | NOT AGREED |
| Jewellery | $2700 | NOT AGREED |
| (country omitted) property | $14,000 | NOT AGREED |
| (omitted) ring | $4300 | NOT AGREED |
| Engagement ring | $1700 | NOT AGREED |
| Balance of car | $15,000 | NOT AGREED |
| TOTAL | $15,000 | $66,700 |
SUPERANNUATION ASSET POOL
| (omitted) fund (W) | $4508 | Agreed |
| (omitted) fund (W) | $893,209 | Agreed |
| (employer omitted) | $324,201 | Agreed |
| (omitted) fund | $5434 | Agreed |
| (omitted) fund | $1,240,793 | Agreed |
| SUBTOTAL | $897,717 | $1,570,428 |
TOTAL NET POOL
| TOTAL NON SUPER | $1,645,637 | Excluding Add backs |
| TOTAL SUPER | $2,468,588 | |
| COMBINED NET POOL | $4,114,225 | Excluding Add backs |
I note the following in relation to arguments concerning add-backs.
I have earlier noted that the Husband claims that a half-share (of $15,000), being the proceeds of sale of a Honda motor vehicle that was purchased during the relationship, should be added back to the pool. He contends that in the absence of a proper accounting, other than the Wife’s submission that it was spent on some existing relationship debts, it comes within the categories outlined by the Full Court in AJO v GRO, at [30]. I agree; in my view, in the absence of proper accounting of such funds, it is a premature distribution of matrimonial assets.
The Wife contends that various sums, such as the $14,000 provided by Mr Roberts to his former fiancé for the purchase of property in the (country omitted), the purchase of a Mazda vehicle for his now Wife (in the sum of $24,000), various purchases of jewellery, and an issue concerning the transfer of $20,000 to his current Wife in relation to a wedding and trip to (country omitted), all of which are accepted to have been made post-separation, should be added back to the asset pool.
This submission is met by the Husband who contends that the direction by the Full Court in Gollings v Scott governs the situation, as well as the amounts claimed not coming within the categories recognised in AJO v GRO.[32] In Gollings v Scott, at [68], the Court emphasised that, as a general proposition or rule, and subject to some recognised exceptions noted by the Court, “once parties have separated … each party is entitled to get on with his or her life independent of the other.”
[32] See Gollings v Scott (2008) 37 Fam LR 428.
In short, I agree with the submissions on behalf of the Husband on the basis of the principles set out in Gollings v Scott and therefore do not accept that the funds expended by Mr Roberts, post-separation, should be added back to the asset pool.
Should it need to be stated, and in no disparaging way is it said: compared to many parties whose relationship has ended and who have had to secure judicial separation and determination of their assets, the parties here are indeed fortunate in the sense that they have very significant assets, and significant income. Neither of them will be impoverished. I do not suggest that the parties will necessarily welcome such comment, but some perspective, respectfully, is important.
Contributions
The consideration of contributions, in my view, may be approached in the following manner.
First, in Clives v Clives, at [44], the Full Court (Warnick, Boland & Cronin JJ) cautioned that the task to be undertaken at trial “in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise.”[33]
[33] Clives v Clives (2009) 40 Fam LR 273. See also similar comments by the Full Court (Bryant CJ, Finn & Boland JJ) in TWN v PAQ (2006) 34 Fam LR 190 at [79].
That task is complicated further here by the agreement between the parties, and the often-times regular separation of the parties’ finances, especially in relation to what might be described as “big-ticket items”, namely houses.
Secondly, it will be noted that both parties have significant amounts of superannuation standing to their respective accounts. The Wife has approximately $898,000, and the Husband has $1,570,429. In my view, it would make little difference to the end result were I to treat the contributions to superannuation as a discrete matter, in accordance with the Full Court decision in C v C,[34] or in the course of a consideration of contributions more generally. I propose to take the latter course.
[34] C v C (2005) FLC ¶93-220.
Thirdly, for ease of reference, I consider firstly contributions for the period from the commencement of the relationship until Mr Roberts taking up the post in (country omitted), thus from 1993 until 2000, then in relation to the second period of the relationship, from 2000 until separation in 2009, to which there are two parts – (country omitted) and Canberra.
In the light of the evidence to which I have referred, I make the following findings.
While the parties, or even one of them (Mr Roberts), lived in (omitted) in the Wife’s Mother’s residence, in my view, the greater contribution was provided by Ms Whitten.
There is no issue that Ms Whitten bought the Property C property and did so from her own funds. In cross-examination, Mr Roberts acknowledged it to be the matrimonial residence.[35] In general terms, the parties lived there from 1995 until 2000, and again after their return from (country omitted) (in 2005) until separation in 2009.
[35] T (3rd May 2012) p.34.
There is no issue – other than to what degree and by whom – that both parties contributed to the upkeep of the Property C property.
In these circumstances, the principal issue is the weight to be given to this significant initial contribution “in all the circumstances.”[36]
[36] See generally Pierce (1994) FLC ¶92-485 at [28]; Clives v Clives (2009) 40 Fam LR at [43].
In my view, a quite significant weight should be ascribed to the role the Property C property played in the relationship. Whether viewed (solely) as the marital residence, or even (more crassly) as a comfortable convenience that enabled both parties to have a secure base from which they ventured forth in their respective employment, here and overseas, and which enabled the parties to save quickly and considerably, it was nonetheless a significant ‘base’ asset, and appropriate “weight” needs to be given to this initial (and on-going) contribution.
In relation to what might be described generally as ‘home-making’ responsibilities during the relationship between 1993 and 2000, having regard to (a) the agreement previously referred to, and (b) the conflicting evidence where both parties acknowledge the contribution of the other but differ in relation to degree and detail, in my view, the only appropriate course is to consider the home-making (and related matters, such as car expenses) as equal.
There is no question that the financing of the purchases of the Property B and the Property N properties was by Mr Roberts alone. There is little doubt, however, that some administrative labours were contributed by Ms Whitten in relation to this asset-acquiring activity by Mr Roberts.
In relation to what might conveniently be called the (country omitted) years or the (country omitted) period, again having regard to (a) the agreement, (b) the joint lease on the apartment(s), (c) the dependant allowance obtained by Mr Roberts for Ms Whitten (acknowledging that for a not insignificant period, Ms Whitten was working in (country omitted), and that Mr Roberts was paying the rent, all utilities and health insurance), (d) the evidence of the parties and (e) the evidence from Mr Roberts’ diaries, which confirm the contributions of Ms Whitten, in my view the most appropriate course is to assess the contributions for this period also as essentially equal. Having said that, I acknowledge that they could, and some others might, in monetary terms alone, determine that they likely favour Mr Roberts. In the result, in my view, little turns on such relatively fine distinctions.
I should also add here that especially from the time of Mr Roberts’ employment in (country omitted) with the (employer omitted) where he enjoyed tax free income, his income, although invariably greater than Ms Whitten’s, increased most appreciably. While relevant directly to consideration under s.75(2) of the Act, it was submitted that precisely because of his greater income, his financial contributions were greater than those of Ms Whitten.
Respectfully, there is insufficient evidence for such a stark conclusion to be drawn. Indeed, to give a distinctive and perhaps an unfair example, notwithstanding his financially superior income, the parties whilst in (country omitted) dined, it is fair at least to say sumptuously, to celebrate his birthday in 2005. In his diaries, Mr Roberts described it thus: “All in all, it was a wonderful evening of excess. The cost was around [$]1700 Australian, making it probably the most expensive dinner we have ever had.” He confirmed that Ms Whitten paid for this dinner.[37]
[37] See T 22 – 23 (3rd May 2012)
The Husband contends that the evidence supports a percentage finding that contributions favoured the Husband 60%, and 40% to the Wife.
I confess that I do not share the same view of the evidence. Having regard to the duration of the relationship, and the various contours of it, not least being the times overseas – by both parties – I am more to the view that the likely greater financial contributions of Mr Roberts during and after the (country omitted) period tended to balance out somewhat the very significant and ongoing contribution of the Wife via the Property C property. I earlier described it as a ‘significant base asset.’ In my view, that is exactly what it was – for both parties. And it will remain with Ms Whitten, whatever the outcome of this proceeding.
Having regard to all the circumstances, in my view, the final assessment of contributions for each of the parties should be considered to be equal.
Section 75(2) Factors
There are relatively few matters to consider here.
This was a marital relationship of significant years – 16 years to be precise.
Both parties are employed. I cannot make any formal determination on the security of Ms Whitten’s employment. Both have significant income, but Mr Roberts’ income is clearly superior to that of Ms Whitten. The Wife is aged 55 years, and the Husband 58 years.
There is no evidence of either of them being in ill health.[38] There are no children of the marriage. Neither party is financially responsible for any other person. And both will be able to sustain their respective standards of living and life-styles, excluding perhaps dinners of ‘wonderful excess’ of the kind experienced in (country omitted).
[38] In her January 2012 trial affidavit, pars.165 & 166, the Wife deposes to having contracted Ross River fever in 2010 from which she says that she has some on-going effects. Apart from these paragraphs there is no evidence before the Court in relation to ‘health issues.’
Only Mr Roberts has re-married, and his new Wife is employed and has some real estate assets, although encumbered to some degree.
On balance, particularly having regard to the Husband’s manifestly superior income, in my view there should be a modest adjustment in favour of Ms Whitten under s.75(2) factors.
Just & Equitable Considerations
The Wife contends that she should receive 75% of the non-superannuation pool.[39]
[39] In more detail, see the Wife’s Submissions at par.30.
The Wife also seeks part of the proceeds of sale of both the Property B and Property N properties, as well as a further adjustment from the Husband’s superannuation, of $200,000. This latter aspect is on the basis that in taking up the position in (country omitted), and then joining the Husband in (country omitted), she was no longer able to contribute to her superannuation. In my view, there is some force in the latter, but not the former. The Wife’s clear evidence was that the move to (country omitted) was a good career move. To now claim it as something of a liability is not, respectfully, completely accurate.
In any event, on the basis of the matters claimed by the Wife, she says that this would give her $2,341,597, which represents 56% of the pool of $4,126,950 (excluding addbacks).
The Husband submits that the parties should, in effect and in reality, walk away from this proceeding with each party simply retaining what they have, thus there should be no [further] adjustment.
Notwithstanding the agreement between the parties to keep their finances separate, which to a significant degree they did, the relationship patently and regularly manifested many of what might be called the usual incidents of marriage, not least mutual support and mutual assistance. While not a formal agreement in the same way that a binding financial agreement is, for example under Part VIIIA of the Act, the agreement, in my view, is but one factor among those that are required to be considered by the Court in determining what are just and equitable orders pursuant to s.79(2) of the Act.
In my view, the following are central considerations: both parties are employed, and each has significant income; the Husband’s income, and income-earning capacity, is clearly greater than the Wife’s. That said, the Wife has significant superannuation (admittedly not as much as the Husband), and she has the unencumbered property in Property C, with an agreed value of just under $700,000. The Husband has re-married and his current Wife has some property and modest income.
Subject to what follows, the parties should retain the property currently in their possession, such as funds in bank accounts, shares and the like.
In Russell v Russell, the Full Court (Ellis, Finn & Mushin JJ) said (emphasis in original):[40] “… it must be remembered … that under s.79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets.”
[40] Russell v Russell (1999) FLC ¶92-877 at p.86,439.
In the light of the Full Court’s admonition, rather than reduce the relationship to banal percentages, in my view it is best to make orders in so-called ‘concrete’ (but doubtless still banal) dollar-terms. Accordingly, Ms Whitten should receive a cash payment from Mr Roberts – whether from the proceeds of sale of the Property B and Property N properties or otherwise - in the sum of $280,000, as well as the sum of $240,000 in superannuation from his (omitted) fund.
On this basis Ms Whitten would retain (a) the Property C property (which remains unencumbered), (b) superannuation of $897,717, and receive (c) a cash payment of $280,000, and (d) a payment from Mr Roberts’ superannuation of $240,000.
Two final matters require attention.
First, for the first time in written submissions, Mr Roberts sought a specific order in relation to an anticipated capital gains tax liability arising from the sale of the Property B property. No evidence has been adduced in relation to such a matter. The Wife opposes any such order on the grounds that it was not raised during the trial, and no evidence is available in relation to it.
I accept the submissions of the Wife. Moreover, Mr Roberts consistently argued that both of his investment properties were his and his alone. In the absence of relevant evidence and the opportunity properly to consider it at trial, which took place over two days separated by a not insignificant period of time, any such liability should remain with Mr Roberts.
Secondly, in the absence of any submission in writing within seven (7) days of these orders, there will be a self-executing order that each party shall pay their own costs.
The Court so orders.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 5 October 2012
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