Wyatt and Wyatt
[2020] FamCA 406
•5 June 2020
FAMILY COURT OF AUSTRALIA
| WYATT & WYATT | [2020] FamCA 406 |
| FAMILY LAW – PROPERTY SETTLEMENT – Application by wife for alteration of property interests – assessment of contributions – marriage of forty-nine years – two children of the marriage – husband seeks alteration of property interests in his favour – where all assets owned wholly accumulated during the marriage and post-separation – wife assumed primary role as homemaker – husband made significant financial contributions –where husband exercised control of parties’ income and capital post-separation – orders made to effect an equal division of property and superannuation interests. |
| Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4), 79(4)(a), 79(4)(c), 106A 117(2A), 117(2A)(f) Family Law Rules 2004 (Cth) |
| Chang v Su (2002) FLC 93-117 Fields & Smith (2015) FLC 93-638 Grier & Malphas (2016) 55 Fam LR 107 In the Marriage of Kowaliw [1981] FLC 91-092 In the Marriage of Townsend (1995) FLC 92-569 In the Marriage of Weir (1992) FLC 92-338 Jabour & Jabour (2019) FLC 93-898 Kannis v Kannis (2002) 30 Fam LR 83 Mallet v Mallet (1984) 156 CLR 605 Nemeth & Nemeth (1987) FLC 91-844 Petruski & Balewa (2013) 49 Fam LR 116 Rosati v Rosati (1998) FLC 92-804 Stanford v Stanford (2012) 247 CLR 108 W & W (1997) FLC 92-723 Wallis & Manning (2017) FLC 93-759 |
| APPLICANT: | Ms Wyatt |
| RESPONDENT: | Mr Wyatt |
| FILE NUMBER: | MLC | 3480 | of | 2017 |
| DATE DELIVERED: | 5 June 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 11-12 November 2019 and 7 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney with Dr Smith |
| SOLICITOR FOR THE APPLICANT: | Efron & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Oner Family Law |
Orders
Amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth)
All previous orders of the Court save for the orders made by the Court on 25 October 2017 be and are hereby discharged.
Notwithstanding order 1 hereof the husband shall be entitled to sell real property held personally and within companies and trusts referred to herein for the sole purpose of making the Payment to the wife under order 4 hereof and for that sole purpose and notwithstanding order 6 hereof the wife shall remove, at her expense, any caveat registered by her or on her behalf in respect of the real property being sold by the husband pursuant to this order.
Upon the Payment under order 4 hereof being made in full to the wife the orders made on 25 October 2017 be and are hereby discharged.
Within 60 days of these orders (‘the Date’), the husband pay to the wife the sum of $18,855,637.50 (‘the Payment’).
The husband and the wife sign all documents (including any authority required) to direct WV Lawyers or Ms WX of that office to release and pay to the wife all funds retained by her from the sale of the real property situate at and known as D Street Melbourne in the State of Victoria and
one half of thethose monies received by the wife be applied in reduction of the Payment.Contemporaneously with the Payment:-
(a)the wife do all things and sign all documents necessary to transfer to the husband, at the husband’s expense, all of her right, title and interest in the real property situate at and known as B Street Suburb C in the State of Tasmania and the husband indemnify the wife against all payments and liability pursuant to any mortgage registered against the real property situate at and known as B Street Suburb C in the State of Tasmania and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind;
(b)the wife do all things and sign all documents necessary to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real property situate at and known as E Street Suburb F in the State of Queensland and the husband indemnify the wife against all payments and liability pursuant to any mortgage registered against the real property situate at and known as E Street Suburb F in the State of Queensland and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
(c)the wife remove, at her expense, any caveat registered by her or on her behalf against the real properties situate at and known as:-
(i)B Street Suburb C in the State of Tasmania;
(ii)H Street Suburb J in the State of Queensland;
(iii)K Street Suburb L in the State of Queensland;
(iv)M Street Suburb F in the State of Queensland;
(v)N Street Suburb O in the State of Queensland;
(vi)P Street Suburb Q in the State of Queensland;
(vii)R Street Suburb S in the State of Queensland; and/or
(viii)10 T Street Suburb U in the State of Queensland.
(Collectively referred to as ‘the real properties’)
(d)the husband be entitled to retain his sole ownership of, and indemnify the wife against all outgoings, taxes and liabilities related to the real properties situate at and known as:-
(i)R Street Suburb S in the State of Queensland; and
(ii)M Street Suburb F in the State of Queensland.
The wife be entitled to retain her sole ownership of, and indemnify the husband against all outgoings, taxes and liabilities related to the real property situate at and known as V Street Suburb W in the State of Victoria.
The husband be entitled to retain his ownership and possession of, and indemnify the wife against:-
(a)all bank accounts held in his sole name;
(b)the motor vehicle 1 (registration …);
(c)the motor vehicle 2 (registration …);
(d)the Aircraft (registration …);
(e)the identified painting;
(f)his Rolex watch; and
(g)any other property in his name.
The wife be entitled to retain her ownership and possession of, and indemnify the husband against:-
(a)all bank accounts held in her sole name; and
(b)any other property in her name.
By consent, and within seven days of these orders, the husband cause to be delivered to the wife:-
(a)all rugs previously placed in the real property situate at and known as E Street Suburb F in the State of Queensland;
(b)the table lamps from the real property situate at and known as D Street Melbourne in the State of Victoria;
(c)all paintings previously held in the real property situate at and known as E Street Suburb F in the State of Queensland save for the identified painting;
(d)the baby photo gifted to the wife by her mother;
(e)the dinner sets gifted to the wife by her mother; and
(f)the white baby dress that the child Ms Y wore home from hospital
with the wife to be entitled to retain and have ownership of the said items.
Within seven days of these orders, the parties do all things and sign all documents necessary to close any bank accounts held in the parties’ joint names, with any funds held in those accounts to be paid to the husband, noting such funds form part of the overall asset pool of the parties to be divided equally.
Each party retain the sum of $225,000 of the trust monies disbursed to each of them from the Oner Family Law Practice Trust Account.
Save as set out otherwise in these orders, each party be solely liable for any credit card; store card; taxation; debt recovery liability; and/or other personal debts standing in that party’s name together with any liability attaching to an asset the party is to retain pursuant to these orders and indemnify the other party in relation thereto.
Contemporaneously with the Payment the parties do all things and sign all documents necessary, with such documents to be prepared by the husband at his sole expense, to cause the wife’s interest in the following entities (‘the husband’s entities’) to be transferred to the husband and/or his nominee:-
(a)Z Pty Ltd;
(b)AA Pty Ltd;
(c)BB Pty Ltd;
(d)the Wyatt Investment Trust;
(e)the Wyatt Family Trust;
(f)CC Pty Ltd; and
(g)DD Pty Ltd.
Save as otherwise set out in these orders and contemporaneously with the Payment:-
(a)the wife resign as director, secretary, trustee, principal, appointor or any other position held by the wife in the husband’s entities and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liability arising as a result of her resignation;
(b)the wife transfer to the husband or his nominee, the wife’s shareholding in the husband’s entities and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liability arising as a result of her transfer;
(c)the wife forgive, transfer and/or assign all of the wife’s rights, responsibilities, title and interest in any debit or credit loan account that she has within the husband’s entities to the husband or his nominee, and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liabilities arising as a result of the wife so acting;
(d)the wife do all acts and sign all documents necessary to renounce any interest or right the wife holds as a beneficiary of the husband’s entities and the husband indemnify the wife and keep her indemnified in relation to any liabilities or duty, capital gains tax, income tax, fringe benefits tax, goods and services tax, or any other tax or liability arising as a result of her renouncement; and
(e)the wife do all things and sign all documents necessary to remove the wife as an account holder or signatory, whether in a personal or office-holder capacity, from all bank accounts of whatsoever nature associated with the husband’s entities.
Save as set out otherwise in these orders, the husband (and the wife where necessary) forthwith do all things and sign all documents necessary for:-
(a)the husband to indemnify and keep indemnified the wife in respect of all claims, debts and liabilities of whatsoever nature arising out of her interest and/or involvement in the husband’s entities and/or arising from anything done or which has failed to be done;
(b)the husband shall use his best endeavours to secure the release to the wife of all personal guarantees given by her, if any, on behalf of the husband’s entities or any other document by which she pledged security for the due performance of a financial commitment of the husband’s entities and indemnify and keep indemnified the wife with respect to those guarantees and like security, if any; and
(c)the husband to indemnify and keep indemnified the wife in relation to any liability in respect of any office held by her in the husband’s entities and without limiting the generality of this provision to include any liability arising prior to and from the date of these orders in respect of any and all taxation payable as a consequence of the wife having been a shareholder or director of the said entities within the husband’s entities or payment in respect of any income declared or payable to the wife but only arising from anything done or which was failed to be done.
Upon the Payment, the husband and wife in their capacities as trustees of the Wyatt Superannuation Fund do all acts and things and sign all documents necessary to transfer, by way of a superannuation split, 50 per cent of the shares owned by the Wyatt Superannuation Fund and with such shares being 50 per cent of the value of the total shareholding of the Wyatt Superannuation Fund to the wife’s self-managed superannuation fund.
Upon completion of order 17 hereof, the husband and wife in their capacities as trustees of the Wyatt Superannuation Fund do all acts and things and sign all documents necessary to:-
(a)effect the wife’s resignation as a trustee and member of the Wyatt Superannuation Fund, with all requisite documents to be prepared by the husband at his sole expense, with the wife to relinquish any claims she may have to the balance of the Wyatt Superannuation Fund; and
(b)thereafter enable the husband to retain the balance of the Wyatt Superannuation Fund, with the husband to be responsible for the management and control of the Wyatt Superannuation Fund.
In the event a liability issues of whatsoever nature from the Australian Tax Office or other like entity whether in the parties’ personal names, any of the husband’s entities names, or in the name of the Wyatt Superannuation Fund, as a result of the wife having lived in the real property situate at and known as D Street Melbourne in the State of Victoria, the Wyatt Superannuation Fund shall be solely liable for payment of such liability in full by the due payment date, with proof of payment to be made to the wife.
Notwithstanding any default of the Payment by the Date the wife resign as a trustee and member of the Wyatt Superannuation Fund after receipt by her of the monies due under order 17 hereof and the husband indemnify the wife and be solely liable for any liability which may arise as a result of the wife’s resignation as a trustee and member of the Wyatt Superannuation Fund and/or the wife’s past involvement as a trustee and member of the Wyatt Superannuation Fund.
Until the Payment, the husband be and is hereby restrained from doing any act or thing or signing any document that has the effect of:-
(a)withdrawing any amount from his member balance with the Wyatt Superannuation Fund;
(b)diminishing the value of his member balance with the Wyatt Superannuation Fund; and
(c)dealing with his member balance with the Wyatt Superannuation Fund;
save for the sole purpose of making the Payment.
In default of the Payment by the Date and in addition to any further order herein, the husband and wife in their capacities as registered owners of the real properties or office holders in the husband’s entities who are registered owners of the real properties shall do all acts and things and sign all documents necessary to appoint the wife as trustee for sale of the real properties.
Upon her appointment as trustee for sale under order 22 hereof the wife shall forthwith sell the real properties or so many of those real properties she shall in her absolute discretion deem necessary and upon the settlement of the sale of each of the real properties the proceeds of sale be applied as follows:-
(a)first, to pay all costs, commissions and expenses of the sale;
(b)second, to pay any outstanding rates, taxes or charges encumbering the title to those properties;
(c)third, to pay interest on so much of the Payment as is then outstanding in accordance with the Family Law Rules 2004 (Cth); and
(d)finally, the balance be paid to the wife in reduction of the Payment then owing save that when the payment has been fully made then any excess amount received at settlement shall be repaid to the husband.
The husband pay and indemnify the wife in respect to any liability that may arise or be assessed, including any taxation payable by her or any of the husband’s entities, in the event of any sale consequent upon or arising from the default of the husband in making the Payment.
There be liberty to apply to the chambers of the trial judge on short notice to seek further enforcement orders in the event that the real properties are unable to sell or remain unsold for more than three months after the husband’s default in making the payment.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)each party be solely entitled to the exclusion of the other to all superannuation, work related entitlements and other property (including choses-in action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named thereon;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(d)any joint tenancy of the parties is hereby expressly severed.
Pursuant to s 106A of the Family Law Act 1975 (Cth) and in the event a default exists beyond seven days after written request from the other party to rectify same:-
(a)a Registrar of the Family Court of Australia be appointed to execute all documents in the name of the party in default and do all acts and things necessary to give validity and operation to these orders;
(b)the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purposes of enforcing this order; and
(c)for the purposes of this order, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of default.
Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.
Note: This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) by amending paragraph (5).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wyatt & Wyatt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 of the Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3480 of 2017
| Ms Wyatt |
Applicant
And
| Mr Wyatt |
Respondent
REASONS FOR JUDGMENT
Preliminary
Before the Court was an application for final property orders filed by the Applicant wife (‘the wife’) on 11 April 2017. The wife, in essence, sought orders for an alteration of property interests to effect an equal division of the legal and equitable property interests of the parties, together with their superannuation entitlements, in circumstances where the parties had been married for forty-nine years. The Respondent husband (‘the husband’) likewise sought final, but differing, property orders, to adjust the parties’ property interests in his favour. He sought that he retain 62.5 per cent of the parties’ asset pool. Such alteration of property interests in his favour, the husband argued, was supported by his continued income earning role after the parties’ children became adults. At that time, on the husband’s case, the wife’s contributions did not equal his, as her caregiving and home duties roles had become less onerous by virtue, simply, of the children no longer being children. The parties also differed in their assessment of the quantum of the asset pool and their approach to its construction.
The matter proceeded to a final hearing on 11 November 2019 and 12 November 2019. On 12 November 2019 the Court raised concerns about the capacity of the husband to give evidence and partake in the proceedings. Thus, on the afternoon of the second day of trial, the proceedings were adjourned to 20 November 2019 for mention to allow for the husband to be assessed by a medical professional as to his capacity.
On 19 November 2019, the report of Dr QR, Consultant Psychiatrist (working as a Neuropsychiatrist) dated 15 November 2019 was provided by email to the Court by the husband’s solicitors. In his report Dr QR outlined the husband’s diagnosis with Parkinson’s disease in 2010, and the treatment procedures the husband had completed to alleviate his tremors. Dr QR noted that in 2016 the husband “abruptly developed changes in mood and behaviour after a deep brain stimulation programming session during which the source of electrical stimulation within the brain was repositioned.” As a result of the changes to the husband’s mood and behaviour, the husband’s deep brain stimulation device was returned to its original settings.
Dr QR described the husband’s medical condition as follows:-
Mr Wyatt has an idiopathic, tremor-dominant Parkinson’s disease of almost 10 years duration. This is a progressive, incurable, neurodegenerative disorder that is diagnosed on the basis of motor symptoms (tremor, rigidity, slowness of movement), but frequently manifests non-motor symptoms such as cognitive dysfunction. Amongst cognitive difficulties experienced by people with Parkinson’s disease, executive dysfunction is common. Executive functioning refers to those processes responsible for planning, initiating, maintaining and sequencing behaviour and difficulties in this domain may be manifest with poor working memory, difficulties in motivation and impulsivity. Mr Wyatt has evidence of mild executive dysfunction, consistent with his stage of his Parkinson’s disease. Mr Wyatt has problems initiating verbal responses and problems retrieving learned information…
With respect to the husband’s ability to partake in the proceedings, Dr QR continued:-
…given time and without the presence of undue stress, Mr Wyatt is able to engage in higher-order discussions of his financial arrangements and his desired strategy with respect to this legal matter. He is able to consider and weigh relevant information and reach a coherent decision that follows from these processes. He is able to convey these opinions in a clear and concise manner. He is consistent in his views. My impression is that he maintains capacity to participate in these proceedings and instruct his Counsel.
I would also note that Mr Wyatt is currently using a low dose of an opioid analgesic for chronic shoulder pain. This may also have a detrimental effect upon his working memory.
Dr QR recommended that:-
Mr Wyatt’s working memory could be supported by allowing him access to written records and notes during the cross-examination process. Providing cues and reminders to individuals with cognitive impairment is a well-recognised way to maintain and support their decisional capacities. I would suggest to Mr Wyatt that he does not employ his opioid painkiller on the days that he is required to give evidence in the courtroom, due to the potential effects of this on his cognitive functioning. I would suggest that Mr Wyatt be allowed a break every 30 minutes if he is to be cross-examined, to reduce the impact of fatigue on his cognitive performance. Finally, I would recommend that Mr Wyatt is allowed to use a microphone to amplify his speech, which is reduced in volume as a result of his Parkinson’s disease.
On 20 November 2019, the Court being satisfied that the husband had capacity to continue with the proceedings and, noting the practical recommendations of Dr QR which the Court could (and did) implement to assist the husband in the giving of his evidence, the matter was adjourned to 16 December 2019 for the final day of hearing. The matter was unable to proceed on that date due to an illness of the husband’s counsel and next proceeded on the 7 February 2020, when judgment was reserved.
Each of the parties sought various final orders. They agreed in respect of a number of such orders, for instance that the husband would retain all of the real property of the parties save that which the wife currently owns and resides in, and that he would make a payment to the wife in respect of his retention of such assets. The husband would also retain other assets in respect of which he would likewise make a payment to the wife. These reasons deal with those matters where there was dispute between the parties as to the orders sought by each of them. In that regard, the pertinent issues are that:-
a)the husband sought the wife transfer her interest in real property to the husband prior to any payment by the husband to her. The wife sought a contemporaneous payment. To avoid further litigation in enforcement proceedings as much as possible; because it is just and equitable; and because there is no proper reason to deprive the wife of the security to which she is entitled, the wife’s proposed orders are preferred;
b)the husband sought that he be given until 30 September 2020 to make any payment ordered to the wife. The wife sought a period of 60 days for such payment to be made. Whilst by this stage of the proceeding, there is little material difference, the wife is entitled to a payment date of 60 days. The husband has had the use of the wife’s funds (in part) for a long time and has been aware for an equally long time that he must act to pay out the wife if that is (which it is) his preferred course;
c)the wife sought a payment representing an alteration of property interests such that she received 50 per cent of the parties’ asset pool. The husband sought for her to receive 37.5 per cent of the parties’ asset pool. The husband sought the non-inclusion of the entirety of payments already received by him whilst the wife sought the inclusion of such sums in respect of each of the parties. The wife’s approach ensured a far more equitable approach and a consistent way of looking at the asset pool of the parties;
d)the husband sought, in the event of any liability issues arising in the parties’ personal names, their entities or in the name of the Wyatt Superannuation Fund from the Australian Taxation Office, that the wife be solely liable for any payments due as a result of her having lived in the apartment situate at D Street Melbourne in the State of Victoria (‘the D Street property’). Conversely, the wife sought that the Wyatt Superannuation Fund be solely liable for payment of any such liabilities, meaning ultimately the husband;
e)the husband sought the wife be solely liable for, and attend to payment of, any outstanding rates and outgoings incurred by the wife in her occupation of the D Street property. The husband further sought reimbursement of any payments made by him in respect of same. The wife opposed that order sought;
f)the wife sought an equalisation of the parties superannuation entitlements by way of a transfer of half the shares and value of the shares owned by the Wyatt Superannuation Fund, to the wife’s self-managed superannuation fund. She did not seek a payment from the husband (as he proposed) representing an equal current dollar division of the shareholding of the Wyatt Superannuation Fund. The wife sought to resign from the Wyatt Superannuation Fund upon completion of the transfer of shares to her self-managed superannuation fund. The husband sought to retain the assets of the Wyatt Superannuation Fund; for the wife to resign all positions held by her and any shareholdings within 30 days of orders being made by the Court; and for him to make to the wife a payment in a fixed sum rather than there to be a percentage division of the shares themselves;
g)the wife sought that the husband be restrained from adversely dealing with the Wyatt Superannuation Fund until payment was made to her;
h)the wife sought orders that in the event of a default of payment to her by the husband, she be appointed as a trustee for the sale of the parties’ real properties and for distribution of any proceeds as payment to her of any amount outstanding; and
i)the husband sought that the wife pay for his costs on an indemnity basis.
Material Relied Upon
The wife relied upon the following material:-[1]
a)Initiating Application filed 11 April 2017;
b)affidavits sworn by her 24 July 2019 and 27 August 2019;
c)Financial Statement sworn 24 July 2019;
d)affidavit of Mr RQ, Registered Valuer, sworn 22 August 2019;
e)affidavit of Mr SS, Certified Practising Valuer, sworn 21 August 2019;
f)affidavit of Mr ST, Residential Property Valuer, affirmed 27 August 2019; and
g)Case Outline filed 13 September 2019.
Additionally, the wife relied upon an Aide-mémoire ‘F’ of orders sought by her which was handed up to the Court on 7 February 2020.
[1] Case Outline of the wife filed 13 September 2019, 1.
The husband relied upon the following material:- [2]
a)Further Amended Response filed 5 November 2019;
b)affidavits sworn by him 13 August 2019 and 5 November 2019;
c)Financial Statement sworn by him 13 August 2019;
d)affidavit of Ms EE sworn 13 August 2019;
e)affidavit of Mr TU, Chartered Accountant, sworn 11 September 2019; and
f)Further Amended Case Outline filed 10 December 2019.
Additionally, the husband relied on a document entitled ‘Comparable Net Asset Pool’.
[2] Further Amended Case Outline of the husband filed 10 December 2019.
Background
Statements of fact in these reasons are findings of fact on the balance of probabilities.
The husband was born on … 1949 and is now aged 70 years. He was a tradesman but many years ago became self-employed as a Company Director involved in the management of the assets controlled by the parties’ entities, those entities including Z Pty Ltd, the Wyatt Investment Trust, the Wyatt Superannuation Fund, and BB Proprietary Limited.
The wife was born on … 1950 and is now aged 69 years. Throughout the marriage the wife was primarily engaged in homemaker and parenting duties. She has no skills to apply in the workforce, having never worked outside the home. She is, in any event, beyond normal retirement age.
The parties were in a relationship for a very long time. The husband and wife met in 1963 whilst at school in the United Kingdom when they were aged 14 and 13 years respectively. On 21 October 1967, the parties married and commenced cohabitation. At this time, the wife was just 17 years old and pregnant with the parties’ first child.
There are two children of the relationship, Mr X born … 1968 and Ms Y born … 1977 both of whom are adults and financially independent. Ms Y however suffers from multiple sclerosis and is increasingly dependent on the wife for some physical, emotional and financial support. Ms Y’s health has declined significantly since the latter part of 2018. She resigned from her long-standing job in April 2019. The wife’s support of Ms Y will continue “for as long as required.”[3]
[3] Affidavit of Ms Wyatt sworn 27 August 2019, [33(a)].
On 16 November 2016, the parties separated when the wife departed the former matrimonial home. The wife departed the former matrimonial home after the husband became physically and psychologically abusive towards her. Thereafter, the husband’s time spent with and dependence upon Ms EE, his personal assistant of many years, increased. His involvement, at the least financial, with Ms EE, spelt the end of the parties’ marriage. The husband’s evidence was that Ms EE “…has only ever worked as my personal assistant.”[4] The wife described her husband and Ms EE’s relationship, in her evidence, as ‘‘regardless of whether it is a romantic or emotional relationship, [Ms EE] was the third person in this marriage”.[5] The wife has, in the years since separation, not re-partnered.
[4] Affidavit of Mr Wyatt sworn on 13 August 2019, [294].
[5] Affidavit of Ms Wyatt sworn 27 August 2019, [22(a)].
The relevant existing companies of the parties are as follows:- [6]
a)Z Pty Ltd. The husband is the director and secretary of the company. Two ordinary beneficially owned shares are held by each of the husband and the wife;
b)AA Pty Ltd. The husband is the director and secretary of the company. Both the husband and the wife each hold one ordinary beneficially owned share in their name; and
c)BB Pty Ltd. The husband is the director and secretary of the company. There is one ordinary beneficially owned share held in the name of the husband.
[6] Affidavit of Mr Wyatt sworn on 13 August 2019, [16].
Z Pty Ltd manages property, carries out development and construction works, generally manages group assets and holds the following real property:- [7]
a)K Street, Suburb L in the State of Queensland; and
b)P Street, Suburb Q in the State of Queensland.
[7] Affidavit of Mr Wyatt sworn on 13 August 2019, [12], [17].
AA Pty Ltd acts as trustee for the Wyatt Investment Trust (of which the husband is the appointor and a beneficiary) and as trustee holds the following real property:-[8]
a)10 T Street, Suburb U in the State of Queensland;
b)N Street, Suburb O in the State of Queensland;
c)HH Street, City JJ New Zealand; and
d)H Street, Suburb J in the State of Queensland.
[8] Affidavit of Mr Wyatt sworn on 13 August 2019, [12], [18].
BB Pty Ltd runs the BB Business Centre, a business with no value, and owns the properties situate at 10 MM Street and 20 T Street, Suburb U in the State of Queensland.[9]
[9] Affidavit of Mr Wyatt sworn on 13 August 2019, [12], [19].
Asset Pool at trial
The assets and liabilities of the parties are as follows:-
REAL ESTATE
Property
Ownership
Value
E Street Suburb F, Queensland
(agreed value)
The parties are Tenants in Common in equal shares
$8,800,000
B Street Suburb C, Tasmania
(valuation)
Jointly by the parties
$3,600,000
M Street Suburb F, Queensland
(agreed value)
Husband
$2,400,000
R Street, Suburb S, Queensland
(agreed value)
Husband
$4,500,000
V Street Suburb W, Victoria (including cash in bank account)
Wife
E$3,000,000[10]
(this value is included in (and excluded here) the funds already received by the wife of $5,021,000 having deducted $145,000 of maintenance payment)
K Street Suburb L, Queensland
(agreed value)
Z Pty Ltd
$1,400,000
P Street, Suburb Q, Queensland
(agreed value)
Z Pty Ltd
$3,800,000
FF Street Suburb GG, Queensland. Property amount foregone as described hereafter in paragraph 58 - $50,000
formerly owned by Z Pty Ltd
$50,000
HH Street City JJ, New Zealand
(valuation)
AA Pty Ltd as trustee
$2,100,000
Sale proceeds of D Street Melbourne, Victoria
AA Pty Ltd as trustee
$3,600,000
10 T Street Suburb U, Queensland
(agreed value)
AA Pty Ltd as trustee
$3,500,000
Sale proceeds of KK Street Suburb LL, Queensland
(agreed)
AA Pty Ltd as trustee
$900,000
N Street Suburb O, Queensland
(agreed value)
AA Pty Ltd as trustee
$850,000
H Street Suburb J, Queensland (ownership with NN Pty Ltd, a company controlled by the husband)
(agreed value)
AA Pty Ltd as trustee
$450,000
10 MM Street & 20 T Street, Suburb U, Queensland
(agreed value)
BB Pty Ltd
$1,000,000
(this value is included in (and excluded here) the funds already received by the husband of $5,728,788)
Suburb OO, Region PP property purchased for $1,375,000 including costs and gifted to the parties’ son
Husband
$1,300,000
(this value is included in (and excluded here) the funds already received by the husband of $5,728,788)
SUB TOTAL
E$35,950,000
[10] Wife’s comparable net asset pool handed up in Court as ‘Aide-mémoire A’ on 7 February 2020 (‘Aide-mémoire A’), item 33.
(The real property situate at 10 YZ Street Suburb GG in the State of Queensland represents to the parties a value of $50,000 to be ‘added back’ to the asset pool for the reasons described in paragraph 62 hereafter. Thus the asset pool sub-total is increased by this amount.)
NON-REAL ESTATE ASSETS
Property
Ownership
Value
Motor vehicle 1
Registration: …
(agreed value)
Husband
$30,000
Motor vehicle 2
Registration: …
(agreed value)
Husband
$4,500
Aircraft
Registration: …)
(agreed value)
Husband
$60,000
Identified painting
(agreed value)
Husband
$10,000
Rolex Watch
(agreed value)
Husband
$6,000
Motor vehicle 3
Registration: …
(agreed value)
Z Pty Ltd
$45,000
Motor vehicle 4
Registration: …
(agreed value)
Z Pty Ltd
$300,000
Motor vehicle 5
Registration: …
(agreed value)
Z Pty Ltd
$45,000
Motor vehicle 6
Registration: …
(agreed value)
Z Pty Ltd
$45,000
Boat
Registration: …
(agreed value)
Z Pty Ltd $1,580,000
(this value is included in (and excluded here) the funds already received by the husband of $5,728,788)
Motor cycle
Registration: …
(agreed value)
Z Pty Ltd
$20,000
Plant and Equipment of BB Business
(agreed value)
Z Pty Ltd
$234,777
SUB TOTAL
E$800,277
PUBLIC SHARES
Property
Ownership
Value
Public shares
(as at March 2020)
Wyatt Family Trust
$19,256[11]
Public shares
(as at March 2020)
Wyatt Superannuation Fund
$7,579,840.50[12]
SUB TOTAL
E$7,599,096.50
[11] Joint correspondence from the parties sent to the Court on 27 March 2020.
[12] Joint correspondence from the parties sent to the Court on 27 March 2020.
CASH AT BANK
(not including the parties personal accounts)
Property
Ownership
Value
LM Bank Cash management account …32
Joint
$9,389
Working Account
Z Pty Ltd
$26,644
Working Account
Wyatt Investment Trust
$50,741
Working Account
Wyatt Family Trust
$3,181
Working Account
Wyatt Superannuation Fund
$23,136
Websaving Account
Wyatt Superannuation Fund
$94,782
($1,800,000 of the monies previously in this account has been equally distributed between the parties since the commencement of the trial)
Ms Wyatt Superannuation Fund
(comprising of part property payments of $489,000 and $732,000)
Wife
$1,221,007
(this value is included in (and excluded here) the funds already received by the wife of $5,021,000 having deducted $145,000 of maintenance payment)
BB Business Pty Ltd Account
BB Pty Ltd
$26,081
SUB TOTAL
E$233,954
FUNDS PAID TO THE HUSBAND AND WIFE POST-SEPARATION
Property
Ownership
Value
Total monies received as part property distribution up until 23 September 2019 (by agreement or order)
Husband
$5,728,788
Total monies received as part property distribution up until 23 September 2019 (by agreement or order)
Wife
$5,021,000
SUB TOTAL
E$10,749,788
TOTAL:
E$55,333,115.50
Matters going to the asset pool
Not included in the asset pool by agreement of each of the parties are further sums that have been received equally by them by way of further advances of property settlement; receipt of superannuation monies; and receipt of the net sale proceeds of the property situate at QQ Street Suburb RR in the State of Queensland (‘the QQ Street property’).
Real Property
The property situate at E Street Suburb F in the State of Queensland (‘the E Street property’), has a value agreed between the parties. The property was valued by Mr SS on 26 June 2019 at $8,000,000. The parties had an offer of $9,000,000 prior to trial which the wife would accept and the husband would not accept, the husband believing he will obtain a sale price of $9,500,000. The wife has no issue if the husband obtains a price higher than $8,800,000. She arrived at that figure on the offered price of $9,000,000 less $200,000 of sale costs.
The QQ Street property has been sold by the husband who received net $585,158. He asserts that there is Capital Gains Tax (‘CGT’) payable in respect of that sale but no evidence was provided by him of the ‘cost base’ calculated with reference to expenditure on the property or losses which may be available to adjust against any CGT assessment.
Funds Paid to the husband and wife post-separation by way of advance of property distribution
The total monies received by the husband post-separation as listed in the asset pool consist of the following sums:-
a)$185,000 withdrawn from the parties’ Wyatt Superannuation Fund, as $160,000 and $25,000 withdrawn in April 2017 and paid to account number ending 3394 which was an undisclosed account;
b)$200,000 withdrawn from the parties’ Wyatt Superannuation Fund in July 2017 and paid to an undisclosed account;
c)$1,580,000 for a boat purchase in June 2018;
d)$1,296,502.17 withdrawn on 23 October 2018[13] and applied toward the purchase of a property for Mr X in Suburb OO, Region PP in the State of Queensland for a purchase price of $1,300,000.[14] Prior to separation the parties purchased a home in Suburb XY for their daughter Ms Y. The monies derived from the parties’ joint account and it was the intention of them both to benefit their daughter in such a manner. The purchase price of the property in its entirety was met by the parties. Prior to their purchase of a home for Ms Y, the parties had assisted in the purchase of a home for their son, Mr X, using joint funds. Mr X had some financial difficulties which resulted in the possibility of the lender selling up the home. This in turn resulted in the husband having to, “at great expense”[15] on the wife’s evidence, transfer the property into the husband’s name. During the course of the proceeding, the husband purchased a subsequent property for Mr X without the wife’s consent. The husband initially sought that the wife share equally in that cost. The wife refused on the basis that “[Mr X] has had a chance to have a house” in the parties initial assistance provided to him. [16] She sought the husband’s expenditure on the purchase for Mr X be solely the husband’s and not be shared by her. The husband in evidence ultimately conceded that he should bring into account, in the proceeding, the monies he had applied to that purchase. These monies formed part of the advance of property settlement he had received;
e)$942,288.71 withdrawn on 5 November 2018 and applied toward the purchase of the T Street property for $1,000,000 in the name of BB Pty Ltd;
f)$485,000 cash payment withdrawn on 1 November 2018;[17]
g)$739,996.21 cash payment withdrawn on 5 November 2018;[18] and
h)$300,000 withdrawn 29 March 2019 from the Wyatt Superannuation Fund;[19]
the total being $5,728,788.
[13] Document entitled ‘Amounts Withdrawn by the husband in November 2018 (and applied to his benefit)’ handed up in Court by counsel for the wife as ‘Aide-mémoire C’ on 7 February 2020 (‘Aide-mémoire C’), 8.
[14] Oral evidence of the husband from the transcript of proceedings dated 7 February 2020, page 19, lines 40-45; Husband’s comparable net asset pool handed up in Court on 7 February 2020, page 11, item 2.
[15] Oral evidence of the wife from the transcript of proceedings dated 11 November 2019, page 27, lines 10-15.
[16] Oral evidence of the wife from the transcript of proceedings dated 11 November 2019, page 27, lines 20-25.
[17] Aide-mémoire C, 7.
[18] Aide-mémoire C, 7.
[19] Document entitled ‘Total lump sum amounts received by the husband since February 2017’ handed up in Court by counsel for the wife as ‘Aide-mémoire B’ on 7 February 2020 (‘Aide-mémoire B’), 18.
The total monies (including those initial monies for the wife’s support) received by the wife post-separation as listed in the asset pool, consist of the following sums:-
a)$3,000,000 comprising of cash in the wife’s bank account and the purchase of V Street Suburb W. There was no evidence before the Court to further distinguish the application of these funds;
b)$489,000 transferred to the Ms Wyatt Superannuation Fund in March 2017;
c)$732,000 transferred to the Ms Wyatt Superannuation Fund in November 2018;
d)$300,000 withdrawn on 29 March 2019 from the Wyatt Superannuation Fund and $500,000 payment withdrawn from the Wyatt Superannuation Fund in June/July 2019;[20]
e)$145,000 in monies withdrawn as described in paragraph 52 hereafter.
[20] Aide-mémoire B, 18; Husband’s comparable net asset pool handed up in Court on 7 February 2020, item 48; Aide-mémoire A, item 41; Affidavit of Mr Wyatt sworn on 13 August 2019, [306].
The total received by the wife being $5,021,000 (having deducted $145,000 of maintenance payment).
Additionally each of the parties received by way of partial property settlement from Oner Family Law Practice trust account on 15 August 2019, the funds deriving from the settlement of sale of the YZ Street property, which occurred on 27 June 2019.[21] This was a sum of $225,000 each.
[21] Oral evidence of the husband from the transcript of proceedings dated 7 February 2020, page 20, lines 20-30; Aide-mémoire A, items 41 and 42.
The Wyatt Superannuation Fund Websaving Account had an account balance of $1,893,045 at the commencement of the trial but the sum of $900,000 was distributed to each of the parties following the commencement of the trial leaving the balance which now appears in the asset pool.
Contributions at commencement of cohabitation
At the commencement of the marriage, the parties owned no property of any value. All of the property that is currently owned by the parties, or corporate interests under their control, was wholly accumulated in the period of the marriage and by virtue of that accumulation, in the period following the marriage.
Neither the husband nor the wife received any inheritance, windfall or substantial gift at the time of the marriage or during the marriage.
Contributions during the relationship
Throughout their marriage the parties performed traditional roles whereby the husband engaged in full-time work to support the family, and the wife engaged in full-time parenting and homemaker duties. From the outset of the marriage the parties agreed that the wife would remain in the home to care for the parties’ son, Mr X, who was born within five months of the parties’ marriage, and later the parties’ daughter, Ms Y. Around the time of the commencement of the marriage the husband was an apprentice joiner, working for a family friend.[22] He worked long hours. On occasion, he worked overtime in the evenings, engaging in private work where he could. The husband also delivered newspapers every Sunday morning. Whilst the husband worked long hours the wife solely cared for the parties’ child Mr X and ran the household. The husband completed his apprenticeship aged 20 years. He was then a qualified carpenter and undertook work in that field.[23]
[22] Affidavit of Mr Wyatt sworn on 13 August 2019, [36].
[23] Affidavit of Mr Wyatt sworn on 13 August 2019, [43]-[44].
In the early years of the parties’ marriage, the husband and wife resided in a flat rented from the local government authority in the United Kingdom (‘the flat’). Approximately six years after the parties married,[24] the husband obtained employment in the construction industry in Africa. The husband subsequently travelled to Africa to take up that employment whilst the wife remained with Mr X in the United Kingdom.[25] The husband’s contract for the construction project was approximately six months, after which time he returned to the United Kingdom.[26] Upon return to the United Kingdom, with work sparse, the husband applied for a supervisor position with a large British company, Company UU, contracting in Africa.[27] The husband worked in this role for two years by signing two separate 12 month contracts.[28] For the first 12 month contract, the husband was required to work at the worksite alone. The wife and Mr X were not permitted to accompany him to Africa.[29] The wife again remained by herself caring for Mr X in the United Kingdom. A year later (in or around 1974-1975) the wife and Mr X travelled to Africa to join the husband.[30] The parties’ gave up the flat upon the wife and Mr X moving to Africa.[31]
[24] Affidavit of Mr Wyatt sworn on 13 August 2019, [6]; [46]-[48].
[25] Affidavit of Ms Wyatt sworn 24 July 2019, [10].
[26] Affidavit of Mr Wyatt sworn on 13 August 2019, [60]-[61].
[27] Affidavit of Mr Wyatt sworn on 13 August 2019, [62]-[63].
[28] Affidavit of Mr Wyatt sworn on 13 August 2019, [64].
[29] Affidavit of Mr Wyatt sworn on 13 August 2019, [64].
[30] Affidavit of Mr Wyatt sworn on 13 August 2019, [68].
[31] Affidavit of Ms Wyatt sworn 24 July 2019, [13].
Whilst in Africa the parties were provided with accommodation and assistance with a housekeeper and gardener as paid for by the husband’s employer.[32] The parties’ living expenses too were paid for by the husband’s employer.[33] The wife devoted herself to the care of Mr X and the husband. Whilst the wife had assistance from the housekeeper with the cleaning and washing, she was responsible for the full time care of Mr X outside of school hours and all of the cooking for the family.[34]
[32] Affidavit of Mr Wyatt sworn on 13 August 2019, [70]; [72]-[73].
[33] Affidavit of Mr Wyatt sworn on 13 August 2019, [70].
[34] Affidavit of Mr Wyatt sworn on 13 August 2019, [74]-[75].
The wife and Mr X stayed in Africa until about late 1975/ early 1976 and thereafter the parties returned to the United Kingdom and to WW Town.
The parties and Mr X commenced to live with the maternal grandparents.
Whilst the parties lived with the wife’s parents, the husband commenced to build their first home, which was paid for by savings he had accumulated from his employment in Africa. The parties did not need to borrow money for their first home.[35] The husband started a job as a construction supervisor with the same company as in his years in Africa, but in City XX, which was an approximately six hour drive from the home of the wife’s parents in the United Kingdom.[36] The husband would leave the home on Monday morning and return on Friday evening. He rented a property in City XX where he stayed during the week. The wife was responsible for the care of Mr X. The completion of the building of the parties own home occurred prior to Ms Y’s birth in 1977, although the wife asserted it was later in time. Understandably, neither party challenged the other parties’ version as to this matter given that it was immaterial in the entire context of the parties’ lives together. In or about 1976/1977 the parties were able to take up residence in their own home.[37]
[35] Affidavit of Mr Wyatt sworn on 13 August 2019, [78].
[36] Affidavit of Mr Wyatt sworn on 13 August 2019, [78]-[80].
[37] Affidavit of Ms Wyatt sworn 24 July 2019, [14].
The husband continued his employment with the same company, and commenced employment in City YY, closer to home, and in a higher role. During this time, the husband was again offered another job, as a project manager for the construction of a building in Africa and once again the parties and Mr X travelled to Africa for the husband’s work, on the husband’s evidence. The time line in this period of the parties’ history differs, as does whether they had together one or two trips to Africa. But nothing turns on that, and there was no challenging of each of the parties respective recall of their history.
In or around 1982 the husband received an invitation for a meeting from a former employee of his from City XX, the United Kingdom, Mr ZZ.[38] Mr ZZ had immigrated to Brisbane and was employed there.[39] At the meeting with Mr ZZ, the husband was invited to visit Brisbane and it was suggested to him to find work in Australia, as “… greater employment opportunities in the construction industry existed there”.[40] The husband searched out employment in Australia and accepted an offer as a manager for a company, AB Pty Ltd prior to leaving the United Kingdom.[41]
[38] Affidavit of Mr Wyatt sworn on 13 August 2019, [89].
[39] Affidavit of Mr Wyatt sworn on 13 August 2019, [89].
[40] Affidavit of Mr Wyatt sworn on 13 August 2019, [89].
[41] Affidavit of Mr Wyatt sworn on 13 August 2019, [90].
The parties migrated to Australia in 1982 and the husband commenced employment with AB Pty Ltd in or about 1982 to 1983.[42] They settled in Brisbane in the State of Queensland, initially renting a house and then two months following their arrival, buying a house situate at BC Street, Suburb CD in Brisbane (‘the Suburb CD property’). They paid for the home in cash having sold their home in the United Kingdom prior to their departure.
[42] Affidavit of Mr Wyatt sworn on 13 August 2019, [91].
In Brisbane the husband was required to work Monday to Saturday, usually from about 7.00am to 5.00pm. The wife continued her role as homemaker and the children’s primary carer, Mr X being approximately 14 years of age and Ms Y being approximately 5 years of age.
In or about 1984 to 1985, the husband started his own building company, DE Pty Ltd with his business partner, Mr EF, whom he had met at AB Pty Ltd where they had both been employed. The husband and Mr EF each held a 50 per cent shareholding in DE Pty Ltd. On the husband’s affidavit evidence, Mr EF eventually left the business in the period between 1994 and 1999.[43] Initially, for a period of four to five years, DE Pty Ltd focused on local projects, in particular, the construction of commercial office buildings that were subsequently sold or leased. DE Pty Ltd was not required to borrow funds to undertake the construction of the buildings. The husband was responsible for the projects in a construction manager/supervisor role capacity which required him to be present on the worksites five days a week, generally from 8.00am to 5.00pm.
[43] Affidavit of Mr Wyatt sworn on 13 August 2019, [104].
Around this time, the Suburb CD property was sold and the parties moved into another home which they had built in the suburb of Suburb RR in Brisbane.
In around 1990, DE Pty Ltd successfully tendered for its first island development job being a project on FG Island for GH Company. The tender was for the building of guest accommodation units on FG Island consisting of approximately two dozen apartments. DE Pty Ltd retained all of the profits for the next project. As a result of the successful completion of the FG Island project, DE Pty Ltd went on to develop a relationship with GH Company and completed a number of developments over a 20 year period. The husband generally worked Monday to Friday and on average approximately two weekends per month. For most of this time the husband solely owned DE Pty Ltd. The business, and indeed any other entity the husband was involved in, did not have to borrow money to complete development projects.
For a period of time, DE Pty Ltd, along with paying the husband and Mr EF equal salaries, also paid the wife a salary. It is not disputed that the payment of a salary to the wife was for taxation purposes and the wife never physically received these payments. Instead, as outlined in the husband’s evidence, the money remained in the business to allow for expansion.
In or about 1990, the husband also established DE Victoria Pty Ltd. Mr EF was not involved, and the husband solely controlled this company. Through DE Victoria Pty Ltd, the husband purchased and developed a number of projects including the construction of HJ Project in Tasmania. For a two year period, the husband lived in Victoria to oversee projects also being completed in Victoria and would travel to Tasmania on the weekends. During this period, the husband was developing and building other commercial buildings in Victoria, including the JK Project at KL Town and a commercial building in Melbourne.[44] The HJ Project took a total of approximately two years to complete and the husband spent the majority of his weekends in Tasmania. When the husband was not in Tasmania he would travel to Brisbane to be with the wife and family. They too travelled to join him when that was practicable for all.
[44] Affidavit of Mr Wyatt sworn on 13 August 2019, [122]-[123].
During the many and sustained absences of the husband from the home, the wife was the sole carer for the children and sole homemaker. As stated in the husband’s evidence “both children were at home with Ms Wyatt full-time until they were old enough to commence primary education”.[45] Throughout all the years of the children’s primary and secondary school, the wife was involved in the school community and supported the children in their various school and extracurricular activities. She attended all parent teacher interviews, concerts, and sports events. The husband, due to his absence from the home, was unable to participate to any great extent but did so when he could.
[45] Affidavit of Mr Wyatt sworn 13 August 2019, [97].
When the husband was at home the wife also cared for him. She did all the washing, cooking, including preparing breakfast for him each morning before work, and cleaning. On the husband’s evidence, the wife “never used paid cleaners to help her with the housework” until about 2003, when the wife engaged a house cleaner to attend the E Street property for approximately five hours each week. She laid out the husband’s clothes for him to wear to work each day. She “doted on [him] as a husband” as accepted in evidence by the husband.[46] These caring activities in respect of the husband did not cease upon the children’s adulthood. They continued until separation. Likewise, the wife’s involvement with caring for, and the support of, the parties’ children continued beyond school and continues in a different way to this day. She remains their supportive and loving mother.
[46] Oral evidence of the husband from the transcript of proceedings dated 11 November 2019, page 44, lines 35-45.
The parties’ marriage revolved around an agreement struck by them in their teenage years which never ceased to operate. The home and children were the wife’s responsibility. Earning an income to support the family was the husband’s responsibility. They each, according to the other, “excelled” in their allocated spheres. The wife had nothing to do with the business dealings of the entities and partnership of she and the husband. The husband never did, nor sought to, include her in his handling of their finances. He did however frequently discuss with her the parties’ finances and told her of what was occurring in his working world. She abided by their agreement. She in return did not require the husband to assist her in the performance of her various and at times onerous tasks, due to the absence of the husband, save she always welcomed and encouraged his input.
As said by the husband in his affidavit evidence:-
… As a result of our mutual intention/agreement, Ms Wyatt never worked in any paid employment during our marriage and has no employment skills.[47]
Ms Wyatt excelled in her role at raising our children and maintaining our homes…’[48]
[47] Affidavit of Mr Wyatt sworn on 13 August 2019, [33].
[48] Affidavit of Mr Wyatt sworn on 13 August 2019, [34].
Post-separation
Since separation in November 2016, the husband has made payment of all outgoings with respect to all of the parties’, and their controlled entities’, various properties save the Suburb W home, more recently acquired solely by the wife for her occupation. He has had control of the income and capital to do so. He has simply continued to carry out those functions which he always attended to and with which he was very familiar.
Following separation and in or about 3 February 2017, the wife withdrew two amounts from the parties’ joint account: one amount of $80,000; another of $50,000; totalling $130,000.[49] She withdrew such amounts after determining that “…the marriage was over and couldn’t be saved.”[50] She needed such immediate funds, having no income with which to support herself, and no control over the capital or income of the parties. As the husband said, “I always controlled it.”[51] The husband, further, of his own volition, transferred to the wife $15,000 on 8 March 2017 for her to spend “wisely”.[52] These monies, the Court finds, were for the wife’s support on the evidence before the Court including the wife’s Financial Statement. These monies were not an advance of property settlement. Rather they were monies for the maintenance of the wife. After this time, each of the parties had advances on property settlement as described in these reasons.
[49] Affidavit of Ms Wyatt sworn 24 July 2019, [33]; Affidavit of Ms Wyatt sworn 27 August 2019, [24(a)]; Affidavit of Mr Wyatt sworn on 13 August 2019, [306]; Oral submissions by counsel for the wife from the transcript of proceedings dated 7 February 2020 at page 73, lines 5-15.
[50] Oral evidence of the wife from the transcript of proceedings dated 11 November 2019, page 29, lines 35-40.
[51] Oral evidence of the wife from the transcript of proceedings dated 11 November 2019, page 45, lines 35-40.
[52] Affidavit of Ms Wyatt sworn 27 August 2019, 24(b); Affidavit of Mr Wyatt sworn on 13 August 2019, [30]6
On 25 October 2017, it was necessary for the Court to make orders which included an injunctive order as follows:-
UPON THE UNDERTAKING of the wife to meet any claim for damages ordered to be paid by this Court arising from the orders made this day IT IS ORDERED;
1.That until further order or the prior written consent of the wife the respondent husband be restrained, personally and as a director or office holder from:-
(i)selling, further encumbering, alienating or disposing of shares held by him or on his behalf (whether legally or beneficially held), in the following entities:
a)Z Pty Ltd
b)AA Pty Ltd
c)Any other company in which he is a shareholder
(“the entities”)
(ii)voting in favour of any resolution to increase the number of shares or diluting the rights attaching to the shares in the entities.
(iii)resigning as a director or officeholder of the entities.
(iv)voting in favour of any resolution to appoint any further directors or officeholders in the entities.
(v)selling, further encumbering, alienating or disposing of any property, real or personal, held or owned by the entities or of which the entities may be entitled to ownership.
(vi)resigning as an Appointor or Trustee of the:
a)Wyatt Superannuation Fund
b)The Trustee for Wyatt Family Trust
c)Any other Trust of which he is an Appointor or Trustee personally or as a director of a corporate Trustee
(“the Trusts”)
(vii)removing himself as a beneficiary of the Trust or any of them.
(viii)selling, further encumbering, alienating or disposing of any property owned or held by the parties personally or jointly with any other person including but not limited to:
a)D Street, Melbourne, VIC
b)20 MM Street, Suburb U, QLD
c)10 KK Street, Suburb LL, QLD
d)KK Street, Suburb LL, QLD
e)K Street, Suburb L, QLD
f)N Street, Suburb O, QLD
g)E Street, Suburb F, QLD
h)QQ Street, Suburb RR, QLD
i)10 YZ Street, Suburb GG, QLD
j)H Street, Suburb J, QLD
k)HH Street, City JJ NZ
l)B Street, Suburb C, TAS
(ix)accessing, withdrawing from or alienating the money held in the following accounts:
a)CBA Acc …52
b)CBA Smart Access - …78
c)CBA NetBank Saver - …86
d)CBA CDIA - …43
e)CommSec Shares - …18
f)LM Bank BIA - …22
g)LM Bank Cash Management Account - …82
h)LM Bank Cash Management Account - …26
i)LM Bank Cash Management Account - …50
j)LM Bank Cash Management Account - …32
k)LM Bank Bus WebS – …58, save for the sum of $300,000 for living and discretionary and fixed expenses
l)LM Bank Bus WebS - …68
m)LM Bank Bus WebS - …88
n)Westpac Bank Account/s in the names of himself, the entities and Trusts
Thereafter, by contract of sale dated 16 January 2018, the husband sold the parties real property situate at KK Street Suburb LL in the State of Queensland without informing the wife of his intention to sell or the sale. This was in breach of the existing order of 25 October 2017. Such behaviour was a continuation of the pattern of the husband’s unilateral decision-making in respect of the parties’ assets, him asserting that he had control and could exercise it regardless of the changed relationship between the parties post-separation. An order of the Court did not stop this behaviour. The husband understood the nature of his behaviour. During cross-examination, the husband further conceded that he understood the meaning of the orders to be that he “…couldn’t deal with the assets unless [he] had [the] wife’s consent”.[53]
[53] Oral evidence of the husband from the transcript of proceedings dated 7 February 2020, page 17, lines 25-30.
The husband owned the property situate at 10 KK Street, Suburb LL in the State of Queensland from about 2007. He sold this property post-separation with settlement taking place on 12 March 2018 for $620,000.[54] The proceeds now exist in the asset pool as described.
[54] Affidavit of Mr Wyatt sworn on 13 August 2019, [267]-[268].
Additionally, in breach of the injunctive order made in October 2017, the husband sought to purchase, in November 2018, and without the wife’s consent,[55] a real property in MN Town, New Zealand. That action ultimately resulted in the husband forfeiting the $91,000 of deposit monies that he paid on signing the contract in August 2018.[56] These were monies forming part of the asset pool of the parties that he wasted, and spent in breach of a Court order. They therefore form part of the monies already advanced to him.
[55] Oral evidence of the husband from the transcript of proceedings dated 7 February 2020, page 17, lines 10-15.
[56] Husband’s comparable net asset pool handed up in Court as ‘Aide-mémoire A’ on 7 February 2020, page 11, item 3; Oral evidence of the husband from the transcript of proceedings dated 7 February 2020, page 16, lines 10-30.
Included in the monies received by the wife since separation, in the sum of approximately $5,166,000 is the total amount of $145,000 received and/or taken by the wife in February and March 2017, when she needed funds to meet her living expenses (see paragraph 52 herein). Thereafter the wife received a payment of $732,000, received by the wife on 24 March 2017,[57] by verbal agreement between the parties. The wife later learned this amount was her own pension entitlement from the Wyatt Superannuation Fund.[58] The husband, on 5 November 2018, withdrew a similar amount of $739,996.21 from the LM Bank Bus WebS account ending in 2658.[59]
[57] Document entitled ‘Part Property payments to the wife in March 2017 and November 2018’ handed up in Court by counsel for the wife as ‘Aide-mémoire D’ on 7 February 2020 (‘Aide-mémoire D’), 2.
[58] Affidavit of Ms Wyatt sworn 27 August 2019, [24(c)]; Affidavit of Mr Wyatt sworn on 13 August 2019, [306].
[59] Aide-mémoire C, 7.
The parties agreed that on 29 March 2019 they should each receive $300,000 from the Wyatt Superannuation Fund,[60] and on 13 June 2019, a further $500,000 by way of advance on property settlement.[61] Further, and by consent order, the parties each received $225,000 in August 2019, the payment of such sum being derived from the settlement of the property situate at YZ Street Suburb GG Queensland (‘the YZ Street property’).[62]
[60] Aide-mémoire B, 18.
[61] Affidavit of Mr Wyatt sworn on 13 August 2019, [306]; Affidavit of Ms Wyatt sworn 27 August 2019, [24(f)]; [24(g)].
[62] Oral evidence of the husband from the transcript of proceedings dated 7 February 2020, page 20, lines 20-30; Aide-mémoire A items 41 and 42.
In October 2019, in the lead up to trial, the parties agreed for the part-payment to each of them of a further sum of $160,000.[63] Other equal property settlement part payments were thereafter made. Each of the parties have paid their legal fees from equal advances of property settlement and no further sum needs to be ‘added back’ to the asset pool in respect of these payments.
[63] Oral evidence of the husband from the transcript of proceedings dated 7 February 2020, page 20, lines 25-35.
The husband owns the business BB Pty Ltd, which owns the T Street properties and runs the BB Business. [64] It is a business which employs six people, including a manager. It operates out of a premises owned by the husband which until the start-up of the business, was being rented to a long term tenant who paid in excess of $300,000 a year. BB Business (the husband) pays no rent and is a business which to date sustains losses each month. This foregoing of rental income in respect of a property forming part of the parties’ asset pool was a decision made by the husband for his benefit and not a decision which provided the parties with that they would expect, namely, income and a return on their investments. It does however provide off-setting losses for the husband.
[64] Affidavit of Mr Wyatt sworn on 13 August 2019, [19].
Ms EE
Ms EE is the husband’s personal assistant. She has occupied this role for many years. She began working for the husband under contract on 5 May 2007.[65] Ms EE has resided in the parties’ property situate at P Street, Suburb Q, Queensland (‘the Suburb Q property’) registered in the name of Z Pty Ltd,[66] for a period in excess of one year at the husband’s instigation. That property has a value of $3,800,000.[67] Ms EE pays no rent. The husband has failed to consult with the wife about this particular application of the parties’ capital. The husband has provided Ms EE with a motor vehicle with personalised number plates, he claims, as part of her employment. The vehicle is owned, and has been paid for, by Z Pty Ltd. The husband has paid for interstate and overseas air travel for Ms EE, both for personal travel and for, on his evidence, to help him in business meetings when he is struggling; to be “… [his] voice and [his] memory”.[68] He pays her a salary in monthly instalments of approximately $100,000.[69] He allows her regular use of and access to the property situate at the Suburb C property in circumstances where,[70] post-separation, the husband has dictated to the wife what use she could have of the parties’ various properties. He has told her she was not to go to the Suburb C property. The Suburb C property was not tenanted and rarely used by the husband prior to separation. He has in the last three and a half years approximately made that property available, from time to time, to Ms EE, at no cost.
[65] Oral evidence of Ms EE from the transcript of proceedings dated 7 February 2020, page 38, lines 35-40.
[66] Affidavit of Mr Wyatt sworn on 13 August 2019, [264].
[67] Affidavit of Mr Wyatt sworn on 13 August 2019, [264].
[68] Oral evidence of the husband from the transcript of proceedings dated 11 November 2019, from page 71, lines 25 to page 82, line 5.
[69] Oral evidence of the husband from the transcript of proceedings dated 11 November 2019, page 81, lines 25-30.
[70] Affidavit of Mr Wyatt sworn on 13 August 2019, [301].
During the marriage, the husband purchased, through Z Pty Ltd, a real property situate at YZ Street property. He paid approximately $800,000 together with costs.[71] In the following year the property was extensively renovated and furnished, with the costs of same exceeding $120,000, and being met by the husband. Ms EE, after the purchase by Z Pty Ltd, and on 17 November 2015, bought into the property by acquiring a 40 per cent ownership of the property for the sum of $300,000.[72] Subsequently, on 12 April 2017, Ms EE purchased the remaining 60 per cent ownership of the property for $450,000 with funds advanced by way of a loan from the husband, and in exchange for a mortgage over the property registered in the husband’s name on 23 May 2017.[73] The husband did not consult with the wife about such use of the parties’ monies. Ms EE’s evidence during cross-examination was that she did not pay the husband any money in respect of the loan for the first two years.[74] Ms EE subsequently sold the property for $1,065,000 and made a significant capital profit, after repaying the husband his $450,000.[75] There was in fact no requirement for her to ever sell the property, however interest was payable upon the sale.[76] The benefit to Ms EE of these various transactions was at least $50,000 and on the evidence significantly more. The wife sought that the modest sum of $50,000 be included in the asset pool of the parties in respect of the husband’s actions and the Court considers that such monies should be so included.
[71] Oral evidence of the husband from the transcript of proceedings dated 11 November 2019, page 76, lines 20-30; Affidavit of Mr Wyatt sworn on 13 August 2019, [181]-[183].
[72] Affidavit of Mr Wyatt sworn on 13 August 2019, [275]; [278]; Oral evidence of the husband from the transcript of proceedings dated 11 November 2019, page 77, lines 15-25.
[73] Affidavit of Mr Wyatt sworn on 13 August 2019, [287]-[290].
[74] Oral evidence of Ms EE from the transcript of proceedings dated 7 February 2020, page 37, lines 5-20.
[75] Affidavit of Mr Wyatt sworn on 13 August 2019, [292]; Oral evidence of Ms EE from the transcript of proceedings dated 7 February 2020, page 37, lines 15-20.
[76] Oral evidence of Ms EE from the transcript of proceedings dated 7 February 2020, page 38, lines 15-20.
Capital Gains Tax (‘CGT’) Issue
Counsel for the husband, in closing submissions of 7 February 2020, submitted that the Court should make no adjustment for factors pursuant to s 75(2) of Family Law Act 1975 (Cth) on the following bases:- [77]
a)both of the parties are of similar age;
b)both have some health issues;
c)the husband will, by virtue of the orders that he seeks, be personally responsible for CGT and the costs of sale for any assets to make the payment to the wife that he advances; and
d)the size of the pool is, in his counsel’s words, ‘enormous’.
[77] Outline of submissions of the husband dated 7 February 2020, 4.
In the event there is determined to be an equality of contributions and a division of the parties’ asset pool equally, the wife also seeks no adjustments pursuant to s 75(2) of the Act as described elsewhere in these reasons.
In his comparable net asset pool document dated 7 February 2020, the husband nevertheless seeks to include an amount of CGT in the sum of $214,249 to be paid by the parties, thus reducing the value of the asset of the D Street property from the agreed value of $3,600,000 to $3,315,983. This property has been sold by the parties so there is no issue as to whether or not, and when, it would be sold. In the same category is the QQ Street property, which has been sold by the husband with the net sale proceeds being agreed in the sum of $585,158. The husband claims that there is also CGT payable in respect of this sale. He placed no evidence before the Court of the quantification of such taxation liability in respect of either property including the ‘cost base’ calculated with reference to expenditure on the property, or losses which may be available to adjust against any CGT. This absence of evidence results in no allowance being made to the husband in respect of these payments.
The D Street Property
During the wife’s occupation of same, the husband attended to payment of the outgoings, continuing his role as manager of the parties’ finances, controlling the income and capital save that which the wife had taken for her living expenses. Those funds he paid in those circumstances should not be reimbursed to him by the wife. Nor should the wife be responsible for any monies not paid by the husband but which remain outstanding. The husband was throughout that time (and indeed has continued and still is) controlling all of the parties’ real properties and determining whether he would or would not receive rental payments on vacant assets; terminate rentals; sell properties; and otherwise deal with monies of the parties as he saw fit. It is trifling in the circumstances of this case for the husband to seek that the wife meet or reimburse these payments. Any liability that may be incurred by the parties in respect of the wife’s occupation of the D Street property should likewise be the husband’s. It is he who effectively controls and manages the parties’ assets including their Superannuation Fund assets.
The public shareholding
The Court determines that the most equitable approach is to adopt the wife’s position of dividing the parties’ superannuation shareholding equally between them to avoid crystallising recent losses as a result of the COVID-19 pandemic on such shareholding for either of them.
Section 75(2) of the Act
Both parties agreed that there is no need for an adjustment, by way of matters pursuant to s 75(2) of the Act, in favour of either party, given in particular the size of the asset pool available for distribution between them. It exceeds $55 million. The parties are of similar age, with their own health issues. However, by way of a claim in the alternative, were the Court to find an inequality of contribution, resulting in a greater percentage to the husband, the wife’s counsel argued that the matters referred to in s 75(2) of the Act would favour the wife. The husband has a greater income earning capacity and continues to work. Furthermore, the husband has provided significant financial support to Ms EE, reducing the assets available to the parties for division. The Court accepts these matters.
It was further submitted by counsel for the wife that the husband had failed to provide adequate explanations as to his expenditure post-separation, both by way of discovery and in the witness box. The Court accepts, in the history of the matter, this to be so. In Kannis v Kannis (2002) 30 Fam LR 83 at 84, the Full Court held:-
…On the issue of non-disclosure, the Full Court held (referring to Chang v Su (2002) 170 FLR 244; 29 Fam LR 406; (2002) FLC 93-117 and In the Marriage of Weir (1992) 110 FLR 403; 16 Fam LR 154; (1993) FLC 92-338) that whether the non-disclosure was wilful or accidental, was a result of misfeasance, or malfeasance or nonfeasance, was beside the point. The duty to disclose was absolute and where the court was satisfied that the whole truth had not come out it might readily conclude that the asset pool was greater than demonstrated. In those circumstances it might be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
In light of the above, if it were assessed that the parties’ contributions taken overall were not equal, the wife submitted that the matters referred to in s 75(2) of the Act would warrant an adjustment such that overall adjustment pursuant to s 79 of the Act resulted in equality of position.
Conclusion
The husband’s evidence as to why he should receive an adjustment of the parties’ property interests to represent a percentage adjustment to him of 62.5 per cent is “because [he] earned it”.[78]
[78] Oral evidence of the husband from the transcript of proceedings dated 12 November 2019, page 2, line 35.
During cross-examination, the husband agreed that both parties should be held to account for all the monies they received by way of part property settlement.
Counsel for the husband, in closing submissions, reiterated that his argument for a greater percentage adjustment in the husband’s favour was not put on the basis of this matter being a ‘special skills’ nor ‘special contribution’ case. But it was nevertheless argued that the husband’s contributions in his sphere called for an adjustment in his favour.
Those contribution did mean the parties never borrowed to acquire their assets. As the husband swore at paragraph 113 of his affidavit sworn 13 August 2019:-
Furthermore, not once have I ever either personally, through DE Pty Ltd, or any other entity I have been involved with, had to borrow money to fund the building of a house or work project. Similarly, DE Pty Ltd or any other entity I was ever involved with never had to borrow money to complete its work projects/purchases. The purchase of any private real estate, payment of any business construction of whatever form, was always paid for in cash with no borrowings required.
The parties accumulated, in this manner, an asset pool of at trial, over $60,000,000.[79] The husband urges the Court to look to the time at which the parties’ younger child Ms Y turned 18 in 1995. He argues that thereafter the increase in the value of the asset pool of the parties was a contribution of his and to a lesser extent, the wife’s, by virtue of the wife having no children under the age of 18 years to care for. Counsel for the husband submitted in closing that the wife’s “…contributions changed once Ms Y turned 18” describing that change as a ‘significant’ one, whilst submitting that the husband’s contributions did not alter but rather continued in the same manner. [80] Thus, at that point in their lives and onwards (from 1995) the parties’ contributions were different, the wife not continuing her role as a care-giving parent.
[79] Closing submissions on behalf of the husband from the transcript of proceedings dated 7 February 2020, page 52, lines 10-15; Husband’s comparable net asset pool handed up in Court on 7 February 2020, page 8.
[80] Closing submissions on behalf of the husband from the transcript of proceedings dated 7 February 2020, page 53, lines 0-25.
Additionally, the husband claimed a greater contribution in his successful negotiations, with the assistance of various legal and accounting advisors, as paid for by the parties, with the Australian Tax Office (‘the ATO’) to reduce significant taxation liabilities that were said to be owing by the husband and the wife, and their various entities. It is conceded by the wife that those negotiations were not participated in by her and were handled entirely by the husband, as was usual, in the course of their 49-year marriage.
In Petruski & Balewa (2013) 49 Fam LR 116, the Full Court said at [49]:-
The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship (Dickons & Dickons [2012] FamCAFC 154). As was also said by the Full Court in Lovine & Connor and Anor [2012] FamCAFC 168, at paragraphs 40 and 41 such an evaluation “inevitably involves value judgments and matters of impression”, and accordingly it cannot be treated as “a mathematical exercise”.
In Grier & Malphas (2016) 55 Fam LR 107 their Honours Murphy and Kent JJ stated:-
135. What skill or skills a person brings to a relationship which are said to result in the making of money or accumulation of capital is no more or less relevant than the skill set a person brings to a relationship as a homemaker and parent, or as the performer of two roles as a homemaker and parent and income earner. The “skill set” or “potential” of “talent” a party brings to the role or roles which the parties have determined each will undertake in the relationship is, for s 79’s purposes, relevant only to how those attributes manifest themselves in what s 79 says must be considered.
136. It is not a party’s “skill set” which must be considered, but their contributions. Contributions are the product of many things: talent, industry, selflessness and, indeed, luck, to name a few. It is the contributions (in all senses in which that expression is used in s 79) that fall for consideration and assessment, not the combination of factors that has created the capacity for the making of those contributions.
The husband’s argument must fail on the facts of this case. As conceded by the husband, the exceptional performance of the wife in her role as parent and homemaker never ceased. Indeed, her role as his attentive and loving spouse. It has not been possible for the wife to enter the workforce in any significant income earning role, given the lifestyle of the parties and the roles they each adopted by happy agreement. The wife had no significant income earning skills, having being pregnant at age 17 which meant the commencement of her role as caregiving parent in the family dynamic. This of itself was no doubt a confronting job for a 17 year old. The parties throughout their marriage accepted their differing roles and brought to the marriage contributions of different qualities, but equal.
Both parties urge the Court to adjust their legal and equitable property interests pursuant to s 79 of the Act. There is no issue as between them that it is just and equitable to make orders pursuant to s 79(2) of the Act. The parties separated after a marriage approaching 50 years. There is not, and has not, since separation, been a common use of property by the husband and the wife.[81]
[81]Stanford v Stanford (2012) 247 CLR 108, [42].
Whilst there is no presumption of equality,[82] the parties both diligently excelled in their respective roles throughout their approximately 50 year relationship. They each contributed equally to the relationship. In Fields & Smith (2015) FLC 93-638, the Full Court considered:-
97.…it is inevitable in some cases that a very significant contribution to the welfare of the family will be of a different kind when parties have separated and the family is no longer constituted by the husband, wife and children. That does not mean that the role completely ceases — in some cases it might take another form such as where a wife became a significant carer for a grandchild. It is also to be noted that s 79(4)(c) requires the court to consider “the contribution made by a party to the marriage to the welfare of the family … including any contribution made in the capacity of homemaker or parent” (emphasis added). Thus, in our view, the wording of the section itself contemplates a contribution to the welfare of the family as being something more than a contribution in the capacity of homemaker and/or parent. The section has been given wide interpretation and there is no reason to read it down (see Nemeth & Nemeth (1987) FLC 91-844 and W & W (1997) FLC 92-723).
(Emphasis in original)
[82]Mallet v Mallet (1984) 156 CLR 605 per whole Court (with some qualification from Deane J).
Similarly, in Wallis & Manning (2017) FLC 93-759 at paragraphs 122 and 123, the Full Court considered a case whereby each party had performed different roles in a farming enterprise, and concluded that neither role had any predominance:-
122.There can be little doubt on the evidence that each party contributed to the maximum of their respective capacities and abilities within these various roles. There was a genuine mutuality to their relationship and it, and the financial decisions and arrangements within it, were subject to the “unstated assumptions” that devolve from that mutuality…
123.We see no reason to attribute to the role of either party any predominance or any greater “value”.
Relevantly, and as raised in the closing submissions of the wife in relation to a holistic assessment of the contributions of the parties, the Full Court in Jabour & Jabour (2019) FLC 93-898 has endorsed the earlier decision of Dickons v Dickons (2012) 50 Fam LR 244, which expressly rejects the notion that “…there must be a relationship between contributions and what they produced in terms of property…”[83] Relevantly, a quoted passage from Dickons says the following:-
Within that context, then, it is self-evident that financial contributions (whether direct or indirect) can be made to a relationship that have an effect on the property of the parties without those financial contributions finding their way directly into, or being directly linked to, specific property or, indeed, directly to the totality of the property available for distribution at the time of trial. Financial contributions can be made to the “...acquisition, conservation or improvement...” of property “...directly or indirectly...” (s 79(4)(a). Emphasis added). A financial contribution can be made indirectly by, for example, the use by parties of income or assets for purpose A freeing up the use of other income or assets for purpose B. Moreover, a particular financial contribution might have been used wholly in discretionary expenditure which, but for that contribution, would not have been available to the parties or would have required borrowings or a diminution of capital. Such a contribution can also, in that way, be seen, for example, as an indirect contribution to the conservation of property. Indeed, the principles discussed for example in In the Marriage of Kowaliw [1981] FamCA 70; (1981) FLC 91-092 and In the Marriage of Townsend [1994] FamCA 144; (1995) FLC 92-569, can be seen as an exception to that general proposition.
Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).[84]
…
[83]Jabour & Jabour (2019) FLC 93-898, [61].
[84]Dickons v Dickons (2012) 50 Fam LR 244, [17]-[18].
In the circumstances of the parties’ cohabitation, marriage and relationship, an equal division of the legal and equitable property interests of the parties and their superannuation entitlements is just and equitable.
The total asset pool remaining available for distribution between the parties is $55,333,115.50. The wife is to receive one half. That is a sum of $27,666,557.75. The wife shall have by virtue of the orders made by the Court:-
a)$5,021,000; and
b)$3,789,920.75 in her one half share of the Wyatt Superannuation Fund monies;
the total being $8,810,920.75.
Thus:-
a)$27,666,557.75;
b)less $8,810,920.25;
equals $18,855,637.50.
The payment to be made by the husband to the wife is therefore $18,855,637.50. This shall then be reduced by virtue of order 5 of the orders made.
Costs
The husband sought an order that the wife pay his costs of the proceedings on an indemnity basis. The wife sought no costs orders in accordance with the general approach that each party pay their own costs. Each party has done so to date in the proceeding.
The husband’s application as to costs was not pressed in the running of the proceeding. It may be hereafter. However, the husband’s claim for indemnity costs has no merit at all. Indeed his claim for costs could not succeed under any ground as set out in s 117(2A) of the Act, save for s 117(2A)(f). If that ground was to be applicable then the husband may have some prospects of pursuing an order. Otherwise it is the wife who had some cause for complaint. The facts applicable to any such application however, as known to date, would most likely see the general approach being adopted.
I certify that the preceding eighty-six (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 5 June 2020.
Associate:
Date: 5 June 2020
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