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Upton & Upton [2023] FedCFamC2F  1296  (12 October 2023)

Last Updated: 5 December 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Upton & Upton  [2023] FedCFamC2F 1296 

File number(s):	ADC 1577 of 2022
Judgment of:	JUDGE DICKSON
Date of judgment:	12 October 2023
Catchwords:	FAMILY LAW – PROPERTY – Relationship of approximately 16 years – Where the two adult children of the relationship remain living with the wife – One pool approach – Alleged prior property settlement agreement between the parties – Consideration of add-backs – Whether monies advanced by the wife’s parents are a genuine loan – Where the Court makes final orders for property settlement to effect a 75 per centum division in favour of the wife.
Legislation:	Family Law Act 1975 (Cth) ss 72, 75, 79, 81, 117. Federal Circuit and Family Court of Australia 2021 r 12.06.
Cases cited:	AJO & GRO [2005] FamCA 195 Babette & Falconer [2015] FamCAFC 124 Bevan & Bevan (2013) FLC 93–545 Bolger & Headon [2014] FamCAFC 27 C & C [1998] FamCA 143 NHC & RCH [2004] FamCA 633; (2004) FLC 93-204 Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244 DJM & JLM [1998] FamCA 97; (1998) FLC 92-816 Dovgan & Dovgan [2021] FamCA 306 Fields & Smith [2015] FamCAFC 57 Halstron & Halstron [2022] FedCFamC1A 65 Hickey & Attorney-General (Intervener) [2003] FamCA 395; (2003) FLC 93-143 Jabour & Jabour [2019] FamCAFC 78 Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 Martell & Martell [2023] FedCFamC1A 71 Mayne & Mayne [2011] FamCAFC 192 Perrin & Perrin (No. 2) [2018] FamCAFC 122 Stanford & Stanford [2012] HCA 52 Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858.
Division:	Division 2 Family Law
Number of paragraphs:	220
Date of hearing:	2 – 4 August 2023
Place:	Adelaide
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	All Family Law
Counsel for the Respondent:	Mr Tredrea
Solicitor for the Respondent:	Randle & Taylor

ORDERS

THE COURT ORDERS THAT:

1. Within sixty (60) days of the date hereof, the wife do pay to the husband the sum of ONE HUNDRED AND TWENTY-FIVE THOUSAND FIVE HUNDRED AND SEVENTY ONE DOLLARS ($125,571.00) (‘the settlement sum’).
2. The wife do retain as her sole property free from all claim and demand by the husband, the following:

(a) The property situate at B Street, Suburb C in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume ... Folio ... (‘the Suburb C property’);

(b) Her motor vehicle;

(c) Her furniture and effects;

(d) Her savings and investments; and

(e) Her superannuation entitlements.

3. The husband do retain as his sole property free from all claim and demand by the wife, the following:

(a) The settlement sum referred to in paragraph 1 herein;

(b) His motor vehicle;

(c) His furniture and effects;

(d) His savings and investments;

(e) His interest in a financial resource; and

(f) His superannuation entitlements.

4. The wife do indemnify the husband and keep him indemnified in relation to any liability incurred in her sole name.
5. The husband do indemnify the wife and keep her indemnified in relation to any liability incurred in his sole name, including but not limited to:

(a) D Pty Ltd;

(b) E Pty Ltd.; and

(c) The Australian Taxation Office.

6. In the event that the wife fails to pay the said settlement sum pursuant to paragraph 1 herein and should such default continue for a period of thirty (30) days, then:

(a) The said Suburb C property shall be sold by the wife on terms and conditions to be agreed between the parties, and failing agreement on terms as recommended by the Secretary of the Real Estate Institute of South Australia and the proceeds of sale shall be disbursed as follows:

(i) To discharge the mortgage secured over the Suburb C property;

(ii) In payment of all sales costs and commissions; and

(iii) The said settlement sum to the husband together with interest accruing from the date of default to the date of payment in accordance with the rate of interest prescribed in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

7. Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event that any party should fail, refuse or neglect to execute any document necessary to implement the terms of these orders, then upon proof of such failure, refusal or neglect by affidavit, a Judicial Registrar or Deputy Registrar of this Honourable Court is hereby authorised to execute any such document on behalf of the defaulting party.
8. All extant applications are hereby dismissed.

REASONS FOR JUDGMENT

JUDGE DICKSON:

INTRODUCTION

1. Ms Upton (‘the wife’) and Mr Upton (‘the husband’) are in dispute as to the division of their matrimonial property after a marriage of approximately 16 years.
2. These are the Courts reasons following a Trial between the parties concerned.

BACKGROUND

3. The applicant wife is aged 51 years. The respondent husband is aged 53 years.
4. The parties married in 1998 and separated on a final basis on 14 February 2014.
5. The parties are not yet divorced.
6. There are two adult children of the relationship, namely Ms F born in 2002 and Mr G born in 2004, both of whom continue to reside with the wife.
7. The parties maintained a relatively amicable post-separation relationship until in or around 2021.
8. On 12 April 2022, the wife initiated proceedings for property settlement. The impetus for the application was said to be the wife learning that in the absence of a final Court order, the husband could make a claim on her assets.^[1]

DOCUMENTS RELIED UPON

9. The wife filed an Outline of Case Document on 31 July 2023 which sets out that she relies upon the following documents:

(1) Initiating Application filed 12 April 2022;

(2) Trial Affidavit of wife filed 23 June 2023;

(3) Affidavit of Mr H filed 23 June 2023;

(4) Financial Statement of the wife filed 26 June 2023;

(5) Affidavit of Mr J filed 30 June 2023;

(6) Affidavit in Reply of the wife filed 31 July 2023; and

(7) Costs Notice filed 1 August 2023.

10. The husband filed an Outline of Case Document on 1 August 2023 which sets out that he relies upon the following documents:

(1) Further Amended Response to Final Orders filed 24 July 2023;

(2) Trial Affidavit of the husband filed 24 July 2023;

(3) Affidavit of Mr N filed 24 July 2023;

(4) Financial Statement filed 24 July 2023; and

(5) Costs Notice filed 31 July 2023.

11. Counsel’s final submissions were also supplemented by updated Balance Sheets setting out the amended assets and liabilities after the evidence had closed.

EXHIBITS TENDERED AT TRIAL

12. The wife tendered Exhibits W1 to W14 inclusive.
13. The husband tendered Exhibits H1 to H6 inclusive.

ORDERS SOUGHT AT TRIAL

14. The wife’s Initiating Application filed 24 April 2022 proposed orders that there be:

A division of property on a final basis 80/20% in favour of the wife UPON NOTING that part of such settlement is the $68,000 the wife has paid to the husband since separation.

15. In the wife’s Outline of Case Document, the wife sought the orders as set out in paragraph 14 herein.
16. Further, the wife proposed in her Outline of Case Document that in the event that the Court did not find that the $500,000.00 advanced by the wife’s parents could be categorised as a ‘loan’, the wife then sought an amount representing 99 per centum of the assets in her favour.
17. By way of his Further Amended Response filed 24 July 2023 the husband sought orders that there be:

A division of property on such basis that the net assets of the parties be divided as to 70% to the applicant and 30% to the respondent and that each of the parties do otherwise retain their respective superannuation interests.

18. In his Outline of Case Document dated 31 July 2023, the husband amended his proposed orders to seek that the parties’ assets, on a ‘one pool’ basis, be divided as to 75 per centum to the wife and 25 per centum to the husband with the parties to retain their respective superannuation interests and all other assets in their respective sole names without further adjustment.
19. At Trial, the parties are in agreement that their assets and superannuation should be divided on a one pool basis.

CHRONOLOGICAL EVENTS

20. The parties commenced a relationship in or around 1991.
21. After marriage in 1996, the parties lived in private rental accommodation and boarded at the home of the husband’s parents before purchasing their own home.
22. In 1999, the parties jointly purchased a property at K Street, Suburb L for the sum of $185,000.00. The property was purchased with a modest deposit and the balance secured by way of mortgage.
23. In 2007, the parties drew down on the mortgage secured over the Suburb L property to purchase a site at Town M upon which a house was constructed.
24. In or about 2007 or 2008, the parties decided to develop the Suburb L property. The parties agreed to sub-divide the Suburb L property and to build a home on each site. The parties then planned to then sell one of the blocks and to pay down the mortgage on their home block.
25. The home on the Suburb L property was demolished. The parties lived elsewhere whilst the construction was underway.
26. In 2009, the parties jointly secured a further home loan in the sum of $150,000.00 for development costs associated with the Suburb L sub-division.
27. In 2010, the parties sold one half of the sub-divided land to the husband’s father, Mr N. The total sum paid to the parties for the purchase of the land by Mr N is in dispute. The parties and Mr N then constructed two houses on the block of land which shared a central wall.
28. By 2011, the development of the Suburb L property was complete. The property which had previously been known as ‘K Street’ then became known as ‘K and K(A) Street’ Suburb L. The parties jointly retained K Street subject to a secured mortgage. Mr N retained K(A) Street.
29. In 2011, the husband commenced working for O Company after P Company was wound up by the owner, Mr Q.
30. The parties separated on 14 February 2014.
31. At separation, the children were aged 12 and nine years respectively. It was an agreed position at Trial that the children remained in the primary care of the wife following separation and spent time with the husband by agreement. The husband spent some minimal overnight periods with the children. For the most part, the husband assisted in the children’s care by undertaking school pick-ups and watching Mr G play sport.
32. At Trial, the parties agree that post-separation, the husband did not pay any formal child support to the wife via an assessment from the Child Support Agency and that any financial assistance made via deposits into the parties’ joint bank account ceased in or about late 2015.
33. In 2015, O Company experienced financial difficulty and subsequently went into liquidation. The husband alleged that he was not paid outstanding wages as Managing Director resulting in a loss of about $34,546.00 from the previous financial year.^[2]
34. From early 2015 to in or about mid-2016, the husband was unemployed.^[3] The husband undertook small handyman jobs but otherwise was reliant upon monies advanced from acquaintances and friends. The wife continued to support the parties two children and paid the mortgage for the Suburb L property.
35. In late 2016, the husband commenced trading as “D Pty. Ltd.” with Mr R and Mr T as fellow Directors. I will refer to this company as ‘D Pty Ltd’ in these Reasons.
36. From the get-go, D Pty Ltd experienced financial setback when money was paid from D Pty Ltd to discharge outstanding liabilities for O Company. D Pty Ltd was reported as having a liability of about $80,000.00 even before it commenced trading in any meaningful way.^[4]
37. In early 2017, the wife received the sum of $500,000.00 from her parents. A ‘Loan Agreement’ was drawn up by U Lawyers and signed by the wife and her parents in early 2017.^[5] The funds were deposited into the Suburb L mortgage and drawn down by the wife to meet outgoings and to reduce the interest owing on the loan.^[6]
38. On 2 May 2017, the husband transferred his interest in the Suburb L property to the wife for no consideration. The wife contended that the transfer occurred in circumstances where the parties agreed that the wife would retain the former matrimonial home as her sole property and that the husband would thereafter not pay child support to the wife for the children.^[7] For his part, the husband cannot recall why or how the transfer occurred, but he agrees that it did.
39. The parties did not seek to finalise their matrimonial property settlement by way of Court order nor any formal agreement. Neither party raised any estoppel arguments at Trial. The parties prior informal agreement does not oust the jurisdiction of the Court to make orders under section 79 of the Act. Any prior agreement may be relevant to determine if and what order should be made under section 79 of the Act with the Court required to consider each case on its merits having regard to the facts as they exist at the date of hearing.
40. At the date of transfer of the Suburb L property, the wife refinanced and opened a new home loan account in the sum of $285,000.00.
41. In mid-2017, the husband informed the wife that he had incurred substantial debts and that he had been threatened by “bikies” who had also threatened the safety of the parties’ son, Mr G. At Trial, it was agreed that the wife then assisted the husband in repayment of the “bikie” debts. The husband described in his evidence how during this period he also borrowed money from friends and family to pay debt describing it as the “Save The Upton Fund”.
42. On 12 July 2017, the wife made the first instalment payment to the husband via the bank account for D Pty Ltd. The final payment was made on 17 May 2018.^[8] In total, the wife paid to the husband the sum of $68,000.00 to discharge the alleged “bikie” debts. Under cross-examination, the husband agreed that the sum of $68,000.00 had been paid to him by the wife and should be brought to account in the Balance Sheet at Trial. The husband’s concession in his evidence was at odds with the position taken in his Outline of Case Document.
43. In mid-2018, the wife sold the Suburb L property at auction for $780,000.00. After payment of the mortgage in the sum of “just over $300,000.00” the wife received net sale proceeds of “$450,000.00 less agents’ commissions and sale costs.”^[9]
44. In mid-2018, the wife purchased a property at Suburb C in her sole name for $850,000.00 plus stamp duty and costs. The wife contends that she had the money from her parents and that she secured a loan over Suburb C to complete the purchase. The wife also borrowed money to purchase a new motor vehicle.^[10]
45. In 2018, the husband entered into a business arrangement with Mr J and his wife Ms W to start a new company known as “E Pty Ltd.” I will refer to this entity as E Pty Ltd in these Reasons. The husband was named as one of three co-directors.
46. It was not long before E Pty Ltd also experienced financial difficulty and cash flow problems. The husband alleged that funds received from progress claims were being paid into an account in the name of Mr J under the name of X Pty Ltd.^[11]
47. Consequently, the husband arranged for progress claims to be redirected into the account of D Pty Ltd so that he could meet expenses for E Pty Ltd.^[12]
48. In the 2019/20 financial year, E Pty Ltd made a loss of $312,538.61.^[13]
49. In 2020, the husband accessed $20,000.00 from his Super Fund 1 which he then paid into E Pty Ltd at the apparent request of Mr J.
50. The personal and business relationship between the husband and Mr J broke down. In 2021, the husband instructed Y Lawyers to represent him in relation to an allegation of misappropriation of funds by Mr J for D Pty Ltd. The husband later abandoned proceedings against Mr J as he was unable to afford payment of Y Lawyers ongoing fees.
51. At Trial, the husband contended that from the time he commenced trading as either D Pty Ltd and then E Pty Ltd, his income was used to pay creditors and to support each of those companies.^[14]
52. In July 2020, during the COVID-19 pandemic, the wife received a payout from her employer, being Z Company, in the sum of $60,125.00. The wife was not eligible for Job Keeper payments as her employer being an international company was not eligible for financial relief from the Australian government. The wife used the funds for her living expenses.
53. During the period from 2017 to 2021, the husband alleged that he experienced “serious mental health issues” which were “triggered” by his failed business ventures and failed marriage. These mental health issues included apparent attempts at suicide.^[15]
54. In July 2021, the wife sold the Town M house for $45,000.00 and deposited the proceeds of sale into her personal bank account. At Trial, there was no dispute that since 2014 the wife had been meeting all costs and outgoings for the Town M house without any contribution by the husband. The wife calculated the sum of $34,828.66 by way of outgoings for the Town M house excluding building and contents insurance and outdoor furniture.^[16] The husband must have been aware of the sale because he gave evidence that he had helped move furniture from Town M to the wife’s home at Suburb C prior to settlement.
55. In early 2022, the husband received correspondence from the Australian Taxation Office in relation to a warning of a possible Director Penalty Notice for an unpaid debt to the Australian Taxation Office of $32,000. ^[17]
56. At Trial, the balance said by the husband to be owing to family and friends on account of financial assistance provided to him during the currency of D Pty Ltd and E Pty Ltd $118,693.00 to unsecured creditors and $148,000.00 to family.^[18]
57. At Trial, the Suburb L property had been retrospectively valued by the husband at the time of transfer to the wife in May 2017 at $800,000.00.^[19]

ISSUES IN DISPUTE

58. The issues in dispute at Trial can be summarised as follows:

(1) What settlement sum (if any) should be paid to the husband by the wife?

(2) How should the Court assess the parties’ contributions to the marriage and in the period post-separation?

(3) Should certain sums be ‘added back’ to the assets available for division?

(4) Is the sum of $500,000.00 advanced by the wife’s father in early 2017 to be treated as a loan or as a contribution?

(5) Should there be any further adjustment in favour of either party pursuant to section 75(2) of the Family Law Act 1975 (Cth) (‘the Act’)?

EVIDENCE

The Wife

59. The wife confirmed that the current mortgage balance for the Suburb C property was $210,556.00. When asked why the mortgage had increased, the wife stated that she had paid her solicitor’s fees, her counsel fees for Trial, and, in the last month, had paid $7,000.00 to her credit card.
60. The wife confirmed that she was aware of the husband’s activity of gambling and being a member of a syndicate during their relationship.
61. The wife confirmed that as recently as 2019, the parties had travelled to Country AA as a family with their children when their son, Mr G, participated in a sports trip associated with his school. After the trip had concluded, the wife confirmed that the parties and their children had travelled to City BB where the family had stayed three to four days at a resort. The family had then travelled back to Australia together.
62. The wife confirmed in her oral evidence that she paid the sum of $68,000.00 to the husband after he informed her that the only way to “get rid of them [the bikies]” was to pay them money.
63. The wife confirmed that parties’ daughter, Ms F, had completed her final secondary year in 2019. After travelling for seven weeks in Europe this year, Ms F was said by the wife to be looking for work to earn an income. Moving forward, the wife anticipated that Ms F would return to study.
64. The parties’ son, Mr G, completed his final year of education in 2022. The wife stated that Mr G had deferred from university and was currently working at DD Company four days per week.
65. The wife confirmed that her contract role at EE Company expires in late 2023. The wife described herself as being “good at my job” and was hopeful of future offers of employment.
66. The wife agreed that following separation in 2014, and during 2015, the husband had deposited the sum of approximately $81,000.00 into the parties’ joint bank account from his income.
67. The wife denied having any knowledge of the husband experiencing mental health challenges in 2017 or 2018. She denied having heard of the husband attempting suicide until Trial.
68. The wife confirmed receiving the sum of $500,000.00 from her parents in 2017. The wife agreed that her parents had not, to date, asked for repayment. The wife stated that currently her parents “did not need the money” but that they “potentially down the track” may require the funds to be repaid if their health deteriorated. The wife denied having been told by her parents of the source of the funds or how much her parents received when their property was sold. The wife confirmed that the payment of $500,000.00 by her parents was related to her marital issues as her parents became aware that she (the wife) was “struggling to pay for the children”.
69. The wife denied ever having seen the FF Trust Deed and stated that she was not aware if she was a beneficiary of the Trust. The wife’s evidence, in fact, was that she was not aware of being a direct beneficiary of the Trust or any other Trust.
70. In relation to the development at Suburb L, the wife stated in her oral evidence that she could not recall receiving an extra sum of $50,000.00 from Mr N as asserted by him. The wife believed that Mr N had paid the parties the sum of $250,000.00. The wife had no knowledge of Mr N contributing towards the build on the Suburb L block or paying any other funds. The wife did concede, however, that the husband had an agreement with his family to “provide [products] for the build”. The wife was also unaware of Mr N paying a further sum of $30,000.00 to complete the build.
71. The wife conceded that the purchase price plus expenses for the Suburb C property was approximately $898,000.00 and that the Suburb L property had sold for $790,000.00. At sale, the wife recalled the mortgage balance being approximately $66,000.00. The wife stated that costs associated with the sale of Suburb L property were not known. When it was put to the wife that, based on those figures, she had received approximately $700,000.00 from the sale of Suburb L, the wife considered that this amount “sounds a bit high”. She agreed that when Suburb C was purchased, a mortgage in the sum of $300,000.00 was taken out to complete the purchase. On 27 June 2018 and 29 June 2018, the wife had paid two separate instalments totalling $200,000.00 off the mortgage balance. The wife agreed that the mortgage balance stood at approximately $99,000.00 by 29 June 2018.
72. The wife was cross-examined about the increase in the mortgage balance. The wife denied having any other accounts and denied ever owning a term deposit. The wife assumed that the transfer had occurred from the home loan to the offset account. This is despite the wife’s own Westpac bank accounts evidencing deposits from a term deposit account in mid-2020. When asked why it was that she had transferred the sum of $30,000.00 each to Ms F and Mr G, the wife stated that she “assumed” that during COVID-19, Ms F had no income and “what I did for Ms F, I did for Mr G.” The wife agreed that the transfers were into accounts in the names of the children over which she “potentially” had control. The wife agreed that a further sum of $80,000.00 was transferred to each of the children. When asked why these transfers had occurred, the wife answered, “to assist them in the future”. The wife could not recall having told the children of the deposits into their bank accounts but went on to add that she “potentially” would have had a conversation with Ms F but not with Mr G.
73. The wife agreed that from the $160,000.00 transferred to Ms F and Mr G, the sum of $20,000.00 was transferred back to her from Ms F’s account in late 2020. When asked as to where the balance of $140,000.00 was at the date of Trial, the wife considered that the money would still be in the children’s bank accounts or had been used to pay other expenses.
74. The husband’s counsel was critical of the wife having provided the Westpac statements evidencing the transfers to the children on the day before the Trial formally commenced. The wife denied that this was the case and added that she had provided the Westpac statements to her solicitor “one month ago”. The wife denied withholding Westpac ‘Statement Number 5’ because she sought to conceal the existence of the term deposit from the husband.
75. In re-examination, the wife was asked about a series of entries during the period 7 January 2019 to 26 March 2019, whereupon monies had been transferred back to the wife from Ms F. Several entries on 7 and 29 January 2019 totalling $10,000.00 was said to be reimbursement for a second-hand motor vehicle that the wife had purchased for Ms F.
76. A credit to the wife’s account in the sum of $10,000.00 on 26 March 2019 was “assumed” to have come from the children’s accounts to assist with everyday expenses. The same explanation was provided by the wife for transfers back into her account from Ms F and Mr G in April and May 2021 respectively.
77. Save for the wife’s evidence regarding the term deposit, I find that the wife was a credible witness and did her best to recall events from a long time ago. The wife made appropriate concessions where required. The wife’s evidence regarding the term deposit and subsequent transfers to Ms F and Mr G was difficult to understand and implausible given the age of the children and the amounts involved. I note, however, that these transactions occurred six years after separation and at least two years before the wife learnt that she remained vulnerable in the absence of a final order for property settlement. I find that the bank transfers between the wife and the children were not undertaken with some attempt to hide money from the husband.

Mr J

78. Mr J is an acquaintance of the parties and former business partner of the husband. He describes himself as a “[professional] and businessman” investing in large businesses. Like the husband, Mr J’s business interests have suffered financial difficulties with Mr J conceding in his evidence that the company “GG Company” had gone into liquidation in or about 2022.
79. The husband and Mr J share similar social interests, including gambling.
80. The husband resided with Mr J and his wife for a period of about 12 months following separation.^[20]
81. Mr J complains in his affidavit that the husband remains a creditor and owes him $50,000.00 arising from the E Pty Ltd failed business venture.^[21]
82. It is evident from reading the affidavit of Mr J and hearing his evidence in the witness box that he has a low opinion of the husband.^[22]
83. The husband alleges that his previous friendship with Mr J has broken down because it is Mr J who owes him money and not the other way around.^[23] Mr N also alleges that Mr J owes him money.^[24]
84. Mr J did confirm that the husband had disclosed to him having experienced mental health problems post-separation. On one occasion, after 2017, Mr J was so concerned about the husband’s mental health that he telephoned “Lifeline”.
85. The evidence of Mr J was of minimal assistance to the Court at Trial and I place little weight on his evidence generally.

The Wife’s Father, Mr H

86. Mr H is the father of the wife.
87. Mr H is a retired farmer, having worked in South Australia before his retirement at the age of 72 years in or about 2016.
88. Mr H and his wife, Ms H, have been extremely generous to their children and grandchildren.
89. In 2015, they established the “FF Trust”. A Deed of Trust was drawn up by U Lawyers and executed in 2015.
90. Through the Trust, Mr and Mrs H have assisted with the education costs for the parties’ two children, Mr G and Ms F, at JJ School and paid their tuition fees until each of the children completed year 12.^[25] They have also paid secondary school education costs for their other grandchildren via the Trust .
91. In 2017, Mr and Mrs H advanced the sum of $500,000.00 to the wife so that she would not “lose the house and had somewhere to live with Ms F and Mr G”.
92. Mr H agreed that he and his wife had advanced the sum of $500,000.00 to each of their three children being the wife in these proceedings, and two other siblings, Mr KK and Ms LL. The funds were paid around the same time in 2017 and after Mr H and his wife sold the “MM [Property].”^[26] Under cross-examination, Mr H agreed that he has not sought repayment of all, or even in part, of the funds from any of his three children describing it as “unknown” when he may do so.
93. Mr H denied that the wife was a beneficiary of the Mr and Ms H Investment Trust.
94. In 2017, Mr and Mrs H advanced the sum of $10,000.00 to the husband ostensibly to cover the husband’s rental arrears and repayments. I accept that this sum has not been repaid by the husband as alleged by Mr H. I also find that this debt is unlikely to ever be repaid by the husband.

The Husband

95. The husband was a poor witness and conceded that he was a poor historian describing his memory as “not brilliant.”
96. The husband conceded in evidence that he had withdrawn $20,000.00 from his superannuation fund in 2020 and had paid the funds to Mr J at his request.
97. The husband denied failing to provide documents as sought by the wife during this litigation.
98. The husband disagreed that the wife had told the husband not to proceed with the NN Company business and further denied when it was put to him by the wife’s counsel that this was “one of your get rich schemes”.
99. The husband conceded that the wife was “very good with money” and was a careful money manager. He had no complaints about the wife’s care of the children and agreed that she had been principally responsible for their care after separation.
100. The husband agreed that the wife was unaware at the date of marriage that he had a credit card debt. The husband conceded that the wife’s redundancy in 2010 had been utilised towards discharge of the credit card debt to purchase a motor vehicle and with the balance paid towards the Suburb L mortgage.
101. The husband agreed that during the relationship, the parties had operated joint bank accounts and had only one credit card.
102. The husband agreed that his expenses for “gambling” were not paid for from the joint accounts. The husband denied having a secret Post Office Box and further denied opening a personal account in his sole name in 2014 until a statement was put to him under cross-examination. The husband then agreed that his evidence on that topic was “totally wrong” and that he could not recall having opened such an account. In re-examination, the husband recalled that the Commonwealth Bank Account ending ...12 in his sole name was used for O Company.
103. The husband agreed that his consumption of alcohol was a point of contention between the parties. When asked to describe his alcohol consumption during the period between 2010 to 2012 and then between 2017 and 2021, the husband described it as “excessive”.
104. The husband agreed under cross-examination, that the wife’s parents had paid him $10,500.00 in 2016 for payment towards his rent describing them as “nice people”.
105. The husband conceded under cross-examination, that he enjoyed gambling. He agreed that he gambled most days but more so on Wednesdays and Saturdays of each week.
106. The husband was challenged on a number of withdrawals from ATM venues. The husband was unable to recall whether those funds were used for payment of alcohol and gambling but conceded that it was his practice to withdraw cash to “gamble”.
107. The husband agreed under cross-examination, that he has an outstanding liability with the Australian Taxation Office for D Pty Ltd in the sum of $32,725.00.
108. The husband conceded under cross-examination, that his contribution to the joint savings account post-2015 could be described as “very minor” because of his financial situation at the time. Under cross-examination, he agreed that his “actual” contribution to the Suburb C property was the sum of $350,000.00, being the net balance between the value of Suburb L at separation in 2014 at $625,000.00 and the mortgage balance at $275,000.00.
109. The husband agreed that it was unlikely he would have initiated property proceedings of his own volition. Once served however, and with the encouragement of those around him, the husband determined that he should seek orders in his own right. The husband was criticised for the final orders sought in his Response to Final Orders filed 31 May 2022 wherein he had sought an equalisation of the parties’ total net assets. I, note, however that even with the husband substantially amending his position by Trial, the parties remained significantly apart in terms of their respective positions for final orders and required a decision from the Court to resolve their dispute.

The Husband’s Father, Mr N

110. Mr N is the father of the husband.
111. Mr N previously owned a business called “OO Company” where the husband had been employed for many years.
112. On leaving OO Company, the husband then worked at P Company, an Adelaide based company.
113. I accept the evidence of Mr N that when the Suburb L townhouses were being constructed, he provided P Company with building products for the “first and second fix” free of charge which he estimated had a value of about $20,000.00 to $25,000.00. In addition, I accept that Mr N paid for fittings for the property at a cost of about $3,000.00.
114. Mr N alleged in his affidavit that he loaned the parties an additional $30,000.00 to complete their home, such sum having not been repaid.^[27] I accept his evidence.
115. Mr N was adamant in his evidence that he had paid the parties $300,000.00 (and not $250,000.00 as alleged by the wife) for the purchase of one of the two blocks when the subdivision of the Suburb L property occurred. I accept his evidence. The wife’s evidence about the practical arrangements for the construction of the Suburb L development was not reliable. This is understandable because she had left this task to the husband given that he worked in the building industry.
116. Mr N confirmed in his evidence that he continued to provide financial assistance to the husband including the provision of a motor vehicle. I find that any money advanced by Mr N to the husband is unlikely to be repaid.

LEGAL PRINCIPLES

117. The jurisdiction of the Court to make orders with respect to the financial matters arising out of a marriage is set out in Part VIII of the Act.
118. The legal principles relevant to adjusting property interests on the breakdown of a marriage were considered by the High Court in Stanford & Stanford (‘Stanford’).^[28]
119. In particular, the High Court identified:

(a) Firstly, that the Court must identify the existing legal and equitable interests of the parties in the property, liabilities and financial resources of the parties at the time of the hearing; and

(b) Secondly, and importantly, that in the application of section 79(2) of the Act the Court must not make any order adjusting the parties’ legal and equitable interests in property unless the Court is satisfied that “in all of the circumstances, it is just and equitable” to do so.

(c) If the Court determines that it would be just and equitable to make orders adjusting the parties’ interests in property, then section 79(4) of the Act requires:

(i) The consideration of the contributions made by the parties to the acquisition, conservation and improvement of any property, both of a financial nature but also of non-financial nature;

(ii) The effect of any proposed orders on the earning capacity of each of the parties;

(iii) Those relevant factors set out in section 75(2) of the Act;

(iv) Any other order affecting each of the parties;

(v) Any child support either party has or is liable to provide, or might be liable to provide in the future for a child of the relationship; and

(vi) Finally, the Court must consider the “justice and equity” of the actual orders to be made.

120. Prior to the decision in Stanford, the appropriate approach in a property settlement case was well settled and had been distilled into the ‘four step process’ as identified by the Full Court in Hickey & Attorney-General (Intervener) [2003] FamCA 395; (2003) FLC 93-143 as follows:

(a) Identification of the value of the property of the parties;

(b) Identification and evaluation of the contributions of the parties to the acquisition, conservation and improvement of the property;

(c) Identification and assessment of the relevant future needs factors of the parties; and

(d) Considerations of justice and equity.

121. The significance of the decision in Stanford, with reference to the four-step process, was discussed by the Full Court in Bevan & Bevan.^[29] In that decision, the Full Court identified that the four-step process “merely illuminates the path to the ultimate approach,”^[30] but that the overarching obligation of the Court is not to make an order unless it is just and equitable to do so.
122. Both parties have competing applications for property adjustment before the Court. It is a relevant consideration that the parties are not agreed as to how the property should be apportioned between them.
123. In circumstances where the parties were married in 1996 and separated in 2014, I am satisfied that it is just and equitable to make an order adjusting property between the parties following the course of a long marriage.

THE PARTIES’ LEGAL AND EQUITABLE INTEREST IN PROPERTY

124. The parties agree to approach the division of their assets on a one pool basis. I will adopt the approach sought by the parties. At the conclusion of the Trial, the parties’ positions as to their respective legal and equitable interests in property was as follows:

Items in Dispute from the Balance Sheet - Addbacks

125. As set out above, in addition to those items of property that tangibly exist, the parties are in dispute over the insertion of certain funds that have been distributed throughout these proceedings, despite the fact that those funds may have been expended.
126. It is well established that adding back notional property is the ‘exception rather than the rule.’^[31] The Court retains discretion whether or not to add back notional property and/or to treat any dissipated funds when considering the relevant section 75(2) factors, and in particular section 75(2)(o) of the Act.^[32]
127. However, as discussed by Murphy J in Trevi & Trevi,^[33] if funds that existed at separation have been applied to the payment of legal fees, then such amounts are likely to be favourably treated as notional property.
128. I will now address the items in the Balance Sheet which are the subject of dispute.

Item 4: Financial Resources Owned / Part-Owned by the Husband

129. The husband owns a 1.5 per centum share in a financial resource in a syndicate .
130. Under cross-examination, the husband estimated that his interest in the financial resource is valued at approximately $2,000.00.
131. The wife seeks to add-back the husband’s interest in the financial resource.
132. Given the husband’s concession, I propose to exercise my discretion to add-back in the value of the racehorse in the sum of $2,000.00.

Item 6: Sale Proceeds of Town M House

133. There is no dispute that the parties jointly purchased land at Town M in or about 2000 and built a house on site. The parties are in agreement that the purchase price and construction costs were paid for by way of a redraw from the joint mortgage secured over the Suburb L property.
134. In mid-2021, the wife sold the Town M house for $45,000.00 and retained the proceeds of sale. The husband seeks to add back the sum of $45,000.00 into the Balance Sheet as an asset retained by the wife.
135. In paragraph 161 of the wife’s Trial affidavit filed 23 June 2023, the wife deposes to having contributed the sum of $34,828.66 to the PP Recreational facility for fees, electricity and a new air-conditioning unit paid for by her following the parties’ final separation.^[34] The wife states that this sum excludes building and contents insurance and the purchase of other items such as outdoor tables and chairs, the cost of which were not particularised.
136. The husband’s counsel conceded in final submissions that the sale proceeds should be offset against the wife’s expenses as stated in paragraph 135 herein.
137. The proceeds of sale of the Town M house have now been disbursed. The sum now said to be added back is nominal and unquantified. I decline to exercise my discretion to add back the sum of $45,000.00.

Item 7: Monies in the Name of the Children controlled by the Wife

138. The wife was cross-examined regarding certain transactions identified from her Westpac account ending ...08 provided by way of disclosure.^[35]
139. Arising from the wife’s oral evidence the husband seeks to add back into the Balance Sheet as an asset retained by the wife the sum of $115,000.00. This sum represents the total of several separate transactions whereby the wife transferred money between her Westpac account into accounts held in the names of the parties two children during the period July 2020 to October 2020.
140. The wife’s evidence on the transactions identified in ‘Exhibit H1’ was vague and unhelpful. The wife denied ever having had a Term Deposit despite the entry dated May 2020 clearly showing deposits of principal and interest from “Term Deposit ...34” into her personal Westpac account. Over the next few months, the wife transferred to each child the sum of $80,000.00 from her Westpac account. The wife conceded in her evidence that the transfers were made to accounts that she “potentially” had control over. She couldn’t recall telling the children of the transfers considering that Mr G was 16 years of age at the time. When asked why the funds had been transferred to the children the wife simply responded that it was “to assist them in their future.”
141. The difficulty for the husband is that he has not established that these funds owed their origin to marital assets such as to notionally add them back into the Balance Sheet. I am not satisfied that the available evidence at Trial reaches anywhere near a level that would convince me that such an approach is warranted.
142. The Court observes that the transactions in question occurred six years post separation. The husband has conceded that he made no financial contribution to the parties’ joint accounts after 2015. There is evidence before the Court of the wife requiring funds from her parents to maintain her household and to support the children.
143. I decline to add back the sum of $115,000.00 into the Balance Sheet.

Item 8: Wife’s Legal Costs

144. Each of the parties filed Costs Notices pursuant to Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
145. In his Costs Notice filed 31 July 2023, the husband has either paid or has anticipated costs in these proceedings in the sum of $98,363.00 (rounded down). The sum of $38,078.00 exclusive of GST had been paid as at 31 July 2023. The husband’s evidence was that he had borrowed money to pay towards payment of his legal fees from family and friends and that he had paid further funds from his salary. In addition, the husband is still meeting legal fees to Y Lawyers associated with the threatened litigation involving Mr J.
146. In her Costs Notice filed 1 August 2023, the wife stated total of “Paid and Unbilled” costs in the sum of $46,204.83 and a total estimated cost of Trial in the sum of $28,580.00. The combined total of these two amounts is $74,784.83. This is the sum sought by the husband to be added back into the Balance Sheet on behalf of the wife.
147. In her Affidavit in Reply, the wife confirmed that she had withdrawn money from the Suburb C mortgage at the end of 2022 to “replace the hot water system $10,000.00, pay lawyers and update bathroom.”^[36] The amounts paid for each was not broken down.
148. Under cross-examination, however, the wife agreed that all of the legal costs set out in her Rule 12.06 Costs Notice had been paid by drawdowns from the Suburb C mortgage.

COUNSEL FOR THE HUSBAND: In your Financial Statement filed six weeks ago, you set out that your mortgage was $164,647.00, and today, six weeks later, your position to the Court is that your mortgage is now $210,556.00. What’s happened to the $46,000.00 or there abouts in the last six weeks?
WITNESS: In the last six weeks, I’ve paid legal fees to my lawyer, I guess, so I put money into her trust account for barrister fees and the remaining amount is redraw across to my credit card over the last month to pay that account, and the remaining $500.00 would be the mortgage package fee that’s just come through.
COUNSEL FOR THE HUSBAND: Of that amount, how much has been used to pay your lawyers?
WITNESS: So, I’ve paid All Family Law close to $14,000.00 and put in trust for my barrister $25,000.00.
COUNSEL FOR THE HUSBAND: And prior to the $14,000 you paid your solicitor, you’ve previously paid solicitors’ accounts, haven’t you?
WITNESS: Yes.
COUNSEL FOR THE HUSBAND: And when you paid solicitors’ accounts previously, was that drawn from the mortgage?
WITNESS: Yes, most of the time. Or actually, I think all of the time from memory. If that’s my only source of income is that redraw facility, then it would’ve definitely come from that.
JUDGE DICKSON: Just to follow that up, am I entitled to assume then that all the costs referred to in your Costs Notice, all of those funds would have come from the mortgage redraw because that’s your only source of income?
WITNESS: Yes, outside of my um salary, my fortnightly salary.^[37]

149. In November 2021, the sum of $36,358.27 was owing on the mortgage secured over the Suburb C property. By November 2022, the Suburb C mortgage was $123,770.22.^[38] At Trial, the Suburb C mortgage had an agreed balance of $210,556.00.
150. The payment of legal fees is one of the clear categories where it is appropriate to notionally add back to the pool of assets those assets which notionally no longer exist.^[39]
151. I consider that it is appropriate to exercise my discretion and to add back the wife’s legal fees in the sum of $74,784.00 to the Balance Sheet. I then propose to assess the wife’s access to these funds as part of the holistic exercise in considering the parties’ contributions.

Item 12: Monies Advanced by the Wife’s Parents

152. In early 2017, the wife and each of her parents, Mr and Ms H, executed a “Loan Agreement” prepared by U Lawyers. Mr and Mrs H are described as the “Lenders” and the wife as the “Borrower”.^[40] The front page of the Loan Agreement is recorded as “2015”. The date of “2015” appears to then amended by hand to read “2017” on the copy document produced to the Court at Trial.
153. No objection was made by the husband that the “loan” was statute barred. ^[41]
154. Under the heading “Background”, the Loan Agreement records that:
     1. The Borrower is the child of the Lender.
     2. The Borrower wishes to borrow funds from the Lender for the purpose of assisting the Borrower in relation to the Borrower’s personal affairs and/or for the purposes set out in Item 3 of the Schedule. Item 3 of the Schedule records “Not applicable” for any other purpose.
     100. The Lender has agreed to the Borrower the funds desired by the Borrower for the purposes mentioned on the terms and conditions as set out in the agreement.
     4. The parties wish to record the terms and conditions of their agreement in writing.
155. The Loan Agreement records that in view of the family relationship the Lender has agreed to provide the Advance interest free subject to the terms of compliance with Clause 2.2.
156. In early 2017, the wife received by way of transfer into her Westpac Bank Account two payments totalling $500,000.00.
157. I accept the wife’s evidence that she has drawn down on those funds to meet her living expenses from time to time as required.
158. Mr H stated that the Loan Agreement was made rather than gifting the money because he and his wife could call upon the loan if required.^[42]
159. Since the $500,000.00 was advanced to the wife by her parents, the Court observes that:

(1) The funds were advanced unsecured;

(2) No interest has been paid in relation to the funds;

(3) There was no evidence of any call at any time by the wife’s parents for all or part of the funds to be repaid;

(4) When the Suburb L property was sold, the wife retained the entire net proceeds and made no repayment to her parents. The net proceeds of the Suburb L sale were then used to purchase the Suburb C property;

(5) The wife’s parents have, on at least one other occasion, recorded financial arrangements as between them and their three children. Specifically, the “FF Trust” in relation to education costs paid by Mr and Mrs H for and on behalf of their grandchildren. The recording of interfamily financial payments is a prudent and sensible practise so as to minimise the potential for future disputation;

(6) The language used by Mr H in his affidavit makes it clear that the repayment of the funds is nothing more than a mere possibility rather than a certainty that this will occur during his lifetime; and

(7) The husband was not a party to the Loan Agreement which the wife now seeks to bring to account in the Balance Sheet as a joint liability.

160. For those reasons, the Court finds that the “loan” from the wife’s parents is not a true liability for the purpose of these proceedings. The Court will exclude this liability from the Balance Sheet and to bring it to account as a consideration of contributions.

Item 13: The Husband’s Superannuation Balance

161. The wife seeks to add back into the husband’s superannuation balance the sum of $20,000.00 withdrawn by the husband from his Super Fund 1.
162. The husband acknowledges that the sum of $20,000.00 was withdrawn by him in 2020 and paid to E Pty Ltd at the request of Mr J and that the sum was not used by him personally.^[43]
163. The parties are in agreement that the wife’s superannuation balance should be calculated proximate to Trial. The wife has continued to pay into her superannuation fund since separation in February 2014. The husband has not done so with such regularity.
164. In order to afford justice and equity as between the parties, I propose to exercise my discretion to add back in the sum of $20,000.00 withdrawn by the husband from his superannuation fund and paid to Mr J for a business venture which was ultimately a total failure.

REVISED BALANCE SHEET

165. In light of the Court’s findings as set out above, the revised Balance Sheet is as follows:

166. Based on the above revised Balance Sheet, the wife will be retaining Items 1, 2, 6, 7, 9 and 10 in the Balance Sheet. and the husband will be retaining Items 3, 4, 5 and 8. The wife’s net assets are $1,261,524.00 and the husband’s net assets are $253,079.00.

THE CONTRIBUTIONS OF THE PARTIES

167. In considering an evaluation of the parties’ contributions the Court must be careful to assess the totality of the parties’ contributions throughout their relationship together with contributions in the period post-separation.^[44] The Court must assess the contributions of the parties at the date of Trial not at the date of separation. The Court is not required to undertake a mathematical exercise in assessing the parties’ contributions. Nor does the Court need to dissect each individual contribution and ascribe a percentage figure to it.^[45]
168. In Mallet v Mallet, Wilson J said as follows:
     15. ... . However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. ...^[46]
169. The weight to be attached to an initial contribution must be assessed against the rubric of all contributions, however made, over the course of their relationship.^[47] All contributions must be weighed collectively. The Court would fall into error to segment the various contributions and weigh one against the remainder.^[48]
170. The approach to be taken in assessing contributions has been described as a broad discretionary assessment which is “neither an accounting nor mathematical exercise” and which requires a “broad brush approach.”^[49]
171. I now turn to considering the parties contributions holistically.
172. The husband alleges that the parties’ each had personal savings as at the date of marriage. This is disputed by the wife. The parties are in agreement that one of them owned a motor vehicle the value of which is not agreed. There was no independent corroborative evidence of either parties asserted value at Trial. The asserted values were minimal and made a long time ago.
173. I conclude that neither party brought any assets of significance to the relationship.
174. From 1998 until 2014, each of the parties engaged in employment and/or undertook home making and parenting duties. They operated a joint bank account and used a joint credit card. The secured borrowings were in joint names. The decision to redevelop the Suburb L block was a mutual one. Both parties were involved in the redevelopment.
175. There is no dispute that in 2001 the wife’s redundancy of $60,000.00 was applied to purchase a motor vehicle and to pay down a credit card debt.
176. The Court is unable to make a finding in regards to the husband’s assertion that in or about 2010, he received a redundancy payment of $10,000.00 which was paid into the Westpac Joint Account after the proprietor of P Company became unwell and deregistered the company.^[50]
177. The wife denied having any knowledge of the husband receiving a $10,000.00 redundancy from his employment at P Company and deposed that there was no record of a $10,000.00 redundancy being paid into the parties’ joint account.^[51] The wife did concede that the husband likely received a lump sum representing his paid out leave entitlements.
178. I do not consider that the husband’s interest in a proposed business called “NN Company” and the purchase of branded merchandise to be a negative contribution as the wife asserts. The business never eventuated and there was no evidence of the quantum of monies spent from joint funds on the branded merchandise.
179. The wife argues that the husband has made a “negative financial contribution” both during the parties’ relationship and post-separation by using his discretionary income to pursue extra-marital relationships, drink alcohol to excess and gamble.
180. I do not consider that the husband’s conduct should be considered as a negative contribution even though it was at times deliberate and reckless. Under cross-examination, the husband conceded heavy drinking during the period 2010 to 2012 and again post separation. Much of the focus of cross-examination was for the period post-separation when the parties were residing separately and where the wife asserted that an agreement had been reached for the husband not to pay child support in lieu of transferring the Suburb L property to her. Arguably in those circumstances, how poorly the husband chose to spend his post-separation income was a matter for him. There was no evidence as to quantum of the alleged wastage or the impact on the asset pool. There was no evidence regarding the wife’s allegation of wasted income spent by the husband pursuing extra-marital relationships.
181. The wife’s allegation that the husband made a negative contribution by failing to obtain a proper sale of the subdivided property at Suburb L is also not made out.^[52] The evidence at Trial does not allow the Court to make a finding on this issue as promoted by the wife.
182. The Court accepts that the parties received some saving in constructing the two dwellings on the Suburb L block as the husband was then employed by P Company who was engaged by the parties to construct the townhouses. I accept the evidence of Mr Upton that he paid for construction of the fittings at a cost of $3,000.00 and was likely to have made further financial contributions to ensure that the project was completed given that it was also in his interest to do so.
183. The evidence supports a finding that for about 12 months following separation the husband paid his salary into the parties’ joint bank account. Both parties continued to have access to this account in the immediate post separation period.
184. The wife’s counsel submits that in the period from the date of marriage to the date of separation the contributions should be assessed as 45 per centum to the husband and 55 per centum to the wife. The husband’s counsel submits that for the same period the contributions of the parties should be assessed as equal.
185. From the date of marriage until the date of separation (a period of 16 years), I find that the myriad of contributions made by the parties are assessed as equal.
186. Following separation in 2015 and onwards, the husband made a number imprudent financial decisions to involve himself in businesses which were ultimately failures. The husband’s evidence demonstrated that he had no real understanding of his role and duties as a company director. Monies were transferred from one entity to another to prop up companies that were struggling to survive. The husband was forced to borrow monies from family and friends and from the wife to discharge debts and to pay for his outgoings. He boarded with friends and family because he could not afford to pay for his own living costs.
187. From October 2015, I accept that the wife became solely responsible for the financial support of herself and the children.^[53] The husband concedes that his financial support of the family reduced at or about the time that he commenced working with D Pty Ltd in late 2016. The Court accepts the wife’s evidence in this regard. By 2016, the husband was in serious financial difficulty and was drinking heavily.
188. The husband takes no issue with respect to the significance of the contribution made by the wife as homemaker during the marriage and post separation. The evidence supports a positive finding that the wife made a very significant post-separation contribution to the care of the parties’ children which was not matched by the husband. This is conceded in the husband’s Outline of Case Document.^[54]
189. In addition, the wife’s parents have paid for the children’s secondary education from the FF Trust. The husband conceded that between 2015 and 2022 the wife’s parents paid the sum of approximately $315,802.00 to JJ School for school fees for the parties’ children.^[55] In the absence of these funds being paid, it was conceded by the husband that the children would have attended a public school.
190. The wife was not challenged regarding her evidence that she has only been able to financially support the children by using the redraw facility which was created by the advance from her parents in the sum of $500,000.00.^[56]
191. Correspondingly, the wife has also had the benefit of the offset account and the equity which followed the Suburb L property, to pay for her legal fees and which were converted into the equity of the Suburb C property.
192. Post-separation, in addition to meeting all of the expenses for the Suburb L property and the majority of expenses for the parties’ children, the wife met all expenses for the Town M house. The wife continued to pay private health insurance on behalf of the husband on a family cover from the date of separation until January 2022.^[57]
193. The wife’s “overall vastly superior contributions” is acknowledged by the husband in seeking a “just and equitable outcome” at Trial.^[58]
194. The Court accepts the husband’s evidence that between 2014 and 2021, he continued to provide practical support to the wife as requested from time to time. The husband also undertook maintenance, jobs around the Suburb L property, including gardening and mowing the lawn.^[59]
195. The parties’ business-like relationship extended to the parties holidaying together with the children in 2019 when the family travelled to Country AA for a sports trip for their son and a joint family holiday.
196. I have considered the contributions of each of the parties holistically bringing to account the myriad of contributions made over the course of the relationship as I am required to do.^[60] For the reasons set out herein, the evidence supports an adjustment of 25 per centum in favour of the wife on account of her overwhelming post-separation contributions.

RELEVANT SECTION 75(2) FACTORS

197. The parties each argue that an adjustment should be made in their favour on account of relevant section 75(2) factors.
198. The wife is 51 years of age. The husband is 53 years of age. Both parties are in good health.
199. From 2017 to 2021, the husband alleged that he experienced difficulties with his mental health triggered by failing in his marriage and in business.^[61] No medical or psychiatric evidence was called by the husband at Trial.
200. There was no evidence to suggest that either party was incapable of working for the foreseeable future due to any health complaint once these proceedings had concluded.
201. The wife works “[as a professional]” for EE Company. Her income is about $86,000.00 gross per annum. Whilst this is a contract position due to expire in late 2023, the wife struck me as an industrious and hard-working person and likely to obtain further employment in the event that her contract is not renewed.
202. The husband is employed as a clerk by QQ Company and receives an income of about $58,000.00 gross per annum. The husband presented as a resourceful person when required. He continues to receive financial support from his father which Mr N conceded is unlikely to ever be repaid.
203. The Court is confident that each of the parties have the capacity for gainful employment in the future.
204. Neither party has a duty to maintain a child or another person. The Court observes that the parties’ young adult children continue to reside with the wife. Both of the children have been working since leaving school. The wife has no legal obligation to support Ms F and Mr G but believes that it is her moral responsibility to do so.
205. The Court considers that the proposed orders will allow each of the parties to maintain a standard of living which is reasonable based on the circumstances of this case.
206. The wife has not re-partnered.
207. The husband is living with his partner, Ms RR. Ms RR was not called at Trial and her income is not disclosed in the husband’s Financial Statement. Ms RR also provides financial assistance to the husband from time to time.
208. The husband alleges that the wife being a beneficiary of her parents Family Trust is a significant financial resource available to her. There is no evidence available to support this submission having heard the evidence of the wife and her father, Mr H.
209. The evidence supports a finding that each of the parties have been fortunate to receive ongoing financial support from their respective families and that this is likely to continue as required.
210. Whilst raised in the husband’s Outline of Case Document that the husband may contend that there is a Section 75(2)(o) factor to be brought to account as a result of the Court being unable to determine the true and extend and value of the net asset pool due to non-disclosure by the wife, this was not pursued in final submissions. I therefore do not propose to consider it further.
211. The evidence does not support a finding in favour of either party under section 75(2) of the Act.

THE OVERALL EFFECT OF THE ORDERS

212. Having assessed contributions and other relevant matters, the Court is required to consider whether, in light of those assessments and the actual property to be divided, the proposed exercise of discretion is just and equitable.
213. Having regard to the facts of the case and my findings therein, I am satisfied that it is just and equitable to divide the parties’ net assets (including superannuation) on a 75 per centum to the wife and 25 per centum to the husband. The wife’s submission that, in the absence of a positive finding in relation to the alleged debt to her parents, the assets be apportioned 99 per centum to her and one per centum to the husband ignores 16 years of contributions made by the husband to the parties’ marriage.
214. The wife will retain Items 1, 2, 6, 7, 9 and 10 in the Revised Balance Sheet leaving her with a net position of $1,261,524.00.
215. The husband will retain Items 3, 4, 5 and 8 in the Revised Balance Sheet leaving him with a net position of $253,079.00.
216. The wife will be required to pay to the husband a settlement sum of $125,571.00.
217. There was no evidence by either party regarding the wife’s capacity for payment of a settlement sum to the husband. I have brought to account the potential need for the wife to refinance in the time frame for payment of the settlement sum to the husband. In the event that the wife is unable to pay the settlement sum to the husband, then the Court has exercised its discretion to make orders for the Suburb C property to be sold. On the facts of this case, I assess the risk to the Suburb C property being sold to meet the settlement sum as low given the available equity, the use of offset accounts and historical financial assistance from the wife’s parents.
218. For clarity the Court considers it prudent to exercise its discretion and to make orders confirming those liabilities that emerged from the evidence which should be borne by the husband alone.

JUSTICE AND EQUITY

219. I am satisfied given the length of the marriage, the parties’ contributions during the marriage and post separation and my findings thereon and the section 75(2) factors, the orders set out herein for an adjustment of the parties’ property interests are just and equitable.

CONCLUSION

220. For all of the above Reasons, the Court makes the orders as set out at the commencement of this Judgment.

Associate:

Dated: 12 October 2023

^[1] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 160.
^[2] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 59.
^[3] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 137.
^[4] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 63.
^[5] See the Book of Documents provided by the legal representatives for the wife at ‘Document F’.
^[6] See the Affidavit of Ms Upton filed 23 June 2023 at paragraphs 113 and 114, and the Affidavit in
Reply of Ms Upton filed 31 July 2023 at paragraph 25.
^[7] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 112.
^[8] See the Affidavit of Ms Upton filed 23 June 2023 at paragraphs 93 and 94.
^[9] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 137.
^[10] See the Affidavit in Reply of Ms Upton filed 31 July 2023 at paragraph 25.
^[11] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 76.
^[12] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 77.
^[13] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 78.
^[14] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 83.
^[15] See the Affidavit of Mr Upton filed 24 July 2023 at paragraphs 99 and 100.
^[16] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 161.
^[17] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 84.
^[18] See Affidavit of Mr Upton filed 24 July 2023 at paragraph 84.
^[19] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 102.
^[20] See the Affidavit of Mr J filed 30 June 2023 at paragraph 7.
^[21] See the Affidavit of Mr J filed 30 June 2023 at paragraph 13.
^[22] See the Affidavit of Mr J filed 30 June 2023 at paragraph 24.
^[23] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 43.
^[24] See the Affidavit of Mr N filed 24 July 2023 at paragraph 13.
^[25] See the Affidavit of Mr H filed 23 June 2023 at paragraph 18.
^[26] Mr H’s evidence is that the MM Property was sold for $9,000,000.00.
^[27] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 11.
^[28] [2012] HCA 52.
^[29] (2013) FLC 93–545.
^[30] Bevan & Bevan (2013) FLC 93–545, [71].
^[31] C & C [1998] FamCA 143; Mayne & Mayne [2011] FamCAFC 192.
^[32] NHC & RCH [2004] FamCA 633; (2004) FLC 93-204; Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858.
^[33] Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858, [31]; DJM & JLM [1998] FamCA 97; (1998) FLC 92-816; AJO & GRO [2005] FamCA 195.
^[34] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 161.
^[35] See ‘Exhibit H1’.
^[36] See the Affidavit in Reply of Ms Upton filed 31 July 2023 at paragraph 29.
^[37] Taken from Transcript of the Hearing.
^[38] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 157.
^[39] Martell & Martell [2023] FedCFamC1A 71; DJM and JLM [1998] FamCA 97; (1998) FLC 92-816; AJO & GRO [2005] FamCA
195.
^[40] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 113.
^[41] Halstron & Halstron [2022] FedCFamC1A 65.
^[42] See the Affidavit of Mr H filed 23 June 2023 at paragraph 30.
^[43] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 79.
^[44] Dickons & Dicksons [2012] FamCAFC 154; (2012) 50 Fam LR 244.
^[45] Bolger & Headon [2014] FamCAFC 27; Fields & Smith [2015] FamCAFC 57; Jabour & Jabour [2019]
FamCAFC 78.
^[46] [1984] HCA 21; (1984) 156 CLR 605.
^[47] Jabour & Jabour [2019] FamCAFC 78.
^[48] Dovgan & Dovgan [2021] FamCA 306.
^[49] Perrin & Perrin (No. 2) [2018] FamCAFC 122; Babette & Falconer [2015] FamCAFC 124.
^[50] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 31.
^[51] See the Affidavit in Reply of Ms Upton filed 31 July 2023 at paragraph 7.
^[52] See the Outline of Case Document of Ms Upton filed 31 July 2023 at page 9.
^[53] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 84.
^[54] See the Outline of Case Document of Mr Upton filed 1 August 2023 at paragraph 13.
^[55] See the Affidavit of Mr Upton filed 27 July 2023 at paragraph 107.
^[56] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 118.
^[57] See the Affidavit of Ms Upton filed 23 June 2023 at paragraph 105.
^[58] See the Outline of Case Document of Mr Upton filed 1 August 2023 at paragraph 17.
^[59] See the Affidavit of Mr Upton filed 24 July 2023 at paragraphs 86 and 87.
^[60] Dickons & Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244; Jabour & Jabour [2019] FamCAFC 78.
^[61] See the Affidavit of Mr Upton filed 24 July 2023 at paragraph 99.