FAMILY COURT OF AUSTRALIA

simpson & simpson and anor	[2012] FamCA 444	

FAMILY LAW - PROPERTY SETTLEMENT – Husband’s financial disclosure – Outstanding taxation debt of husband with interest and penalties accrued – Commissioner of Taxation intervened in proceedings – Determination of whether any part of the husband’s taxation debt (including interest and penalties thereon) should be considered a joint liability of the parties – Determination of whether alleged interest accrued on an agreed loan should be considered a joint liability of the parties.

FAMILY LAW - SPOUSAL MAINTENANCE – Application by wife to enforce arrears considered in adjustment – Application by wife for lump sum or periodic maintenance dismissed.

FAMILY LAW - CHILD SUPPORT – Application by wife to enforce arrears determined a matter for the Child Support Agency.

FAMILY LAW - SUPERANNUATION – Self-managed superannuation fund. 	

Family Law Act 1975 (Cth)	

Black & Kellner (1992) FLC 92-287, 15 Fam LR 343
Clauson and Clauson (1995) FLC 92-595
Tomasetti & Tomasetti [2000] FamCA 314, 26 Fam LR 114, (2000) FLC 93-023
Weir & Weir (1993) FLC 92-338, 16 Fam LR 154	

APPLICANT:	Ms Simpson	

RESPONDENT:	Mr Simpson	

INTERVENER:	Commissioner of Taxation	

FILE NUMBER:	PAF	561	of	2006	

DATE DELIVERED:	13 June 2012	

PLACE DELIVERED:	Parramatta	

PLACE HEARD:	Parramatta	

JUDGMENT OF:	Collier J	

HEARING DATE:	2, 3, 4 & 5 May, 20 July, 
10, 11, 12 & 13 October 2011	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Jackson	

SOLICITOR FOR THE APPLICANT:	Mr Loupos
George Loupos Solicitor	

SOLICiTOR FOR THE RESPONDENT:	Mr Brown
Browns The Family Lawyers	

COUNSEL FOR THE INTERVENER:	Mr Kasep	

SOLICITOR FOR THE INTERVENER:	Mr Lee
Commissioner of Taxation
ATO Legal Services Branch	

Orders
(1)	That the parties and each of them do all things and sign all documents necessary to request and require the holder of the controlled monies account into which all monies arising from the sale of the parties’ former matrimonial home situated at and known as … R Street, Suburb A have been paid to deal with such sums as follows:-
(a)	Payment to Mr C of $78,000;
(b)	Payment to the Australian Taxation Office of $238,317.85;
(c)	Payment to the husband of $17,010; and
(d)	Payment to the wife of $247,040.60.
(2)	That the husband indemnify and keep indemnified the wife in respect of any claim that may be in the future made by Mr C arising out of any alleged advance or loan made to the parties, or the husband solely.
(3)	That the husband within four (4) months of this date pay to the wife the sum of $30,000.  Upon payment of such sum the wife shall sign all documents and do all things necessary to resign as either a director/trustee or beneficiary of the Simpson Superannuation Fund.
(4)	That in the event that the said sum in Order 3 above is not paid within the time specified, then the matter may be relisted by the wife to seek such further orders, including a splitting order, as may then be appropriate.
(5)	That subject to the foregoing, I declare each party to be the sole and absolute owner of all property, monies held on investment, bank accounts, motor vehicles, personalty and chattels, and superannuation entitlements in the possession and control of that party.  
(6)	That I discharge any existing Order for spousal maintenance in its entirety.
(7)	That I dismiss the wife’s application for spousal maintenance, be it periodic or lump sum.  
(8)	That subject to Orders 3 and 4 above, I dismiss all outstanding applications and cross-applications.
(9)	That subject to Orders 3 and 4 above, I remove all issues from the pending cases list.
(10)	That all material produced on subpoena be returned not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Simpson & Simpson and Anor is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at Parramatta	

FILE NUMBER: PAF 561 of 2006

Ms Simpson 	
Applicant Wife

And

Mr Simpson 	
Respondent Husband

And 

Commissioner of Taxation 	
Intervener

REASONS FOR JUDGMENT
Introduction
1. 	These proceedings relate to the distribution of the parties’ property following the breakdown of their marriage.
2.	The matter has been hard fought and has been before the Court on a number of occasions.
3.	The hearing ran over a period of time and in three separate stanzas.  The bulk of the hearing was concerned with the cross-examination of the parties, although expert witnesses were called.
4.	The Australian Taxation Office intervened in the proceedings in relation to taxation debts of the husband and made significant submissions at the conclusion of the hearing.

Brief background
5.	The husband was born in 1962 in Egypt.  As at the final stanza of the hearing, he was 48 years of age.
6.	The wife was born in 1964 also in Egypt.  As at the final stanza of the hearing, she was 47 years of age.
7.	The parties married and commenced cohabitation in February 1990.
8.	They separated on a final basis in about April 2006.
9.	The parties were therefore married for about 16 years. They are not yet divorced. 
10.	There are three children of the marriage, namely:-
b)	J born … January 1995.  As at the final stanza of the hearing, she was 16 years of age.
c)	B born … February 1997.  As at the final stanza of the hearing, he was 14 years of age.
d)	D born … April 2003.  As at the final stanza of the hearing, she was 8 years of age.
11.	The wife was the primary carer of the children throughout the marriage, and the husband the primary income earner. 
12.	Since the parties’ separation, there have been a significant number of applications before the Court, including in relation to parenting, property, spousal maintenance and various procedural applications brought particularly on the wife’s behalf. 
13.	As to their occupations, the husband is a professional person and the wife is qualified in the education field. 

The children’s issues
14.	From the date of separation until about November 2009, all three children resided with their mother.  In November 2009, the two elder children commenced living with their father, whilst the youngest child remained living with her mother.
15.	The parenting matters in issue between the parties have already been finalised.  In this regard, I made Orders on the 5th of April 2011 in accordance with the Minute of Consent Orders signed by the parties and their legal representatives on the 4th of April 2011.
16.	Those Orders provide for the parties to have equal shared parental responsibility for their three children, for the elder two children to live with their father and the youngest child to live with her mother.  The non-live with parent and child/ren are to spend each alternate weekend together, half of the school holidays and at times on special days.  It was noted that the parties are to give effect to the wishes of J and B as to where they wish to reside.

The parties’ documents
17.	The wife sought to rely upon the following documents and affidavits in support:-
a)	Amended Initiating Application filed 7 October 2011;
b)	Her updated Financial Statement sworn 6 October 2011 and filed 7 October 2011;
c)	Her Financial Statement sworn 27 April 2011 and filed 29 April 2011;
d)	Her affidavit sworn 23 May 2011 and filed 30 May 2011;
e)	Her primary affidavit sworn 27 April 2011 and filed 29 April 2011 (with voluminous annexures); and
f)	Costs Disclosure document filed 7 October 2011.
18.	The husband sought to rely upon an extensive list of documents.  The updated documents he sought to rely upon are as follows:-
a)	Further Amended Response to Initiating Application filed in Court on 10 October 2011;
b)	Amended Response to Initiating Application filed 1 April 2011;
c)	His updated Financial Statement sworn and filed 10 October 2011;
d)	His Financial Statement sworn and e-filed 29 April 2011;
e)	His affidavit sworn and filed 7 September 2011;
f)	His primary affidavit sworn and filed 8 April 2011;
g)	His affidavit sworn 10 March 2011;
h)	Affidavit of Mr C sworn and filed 1 April 2011;
i)	Affidavit of Mr E sworn 7 October 2011 and e-filed 10 October 2011; 
j)	Affidavit of Mr L sworn 19 April 2011 and e-filed 28 April 2011; and
k)	Costs disclosure document filed 19 September 2011.
19.	The following documents were filed by the Intervener in these proceedings:-
a)	Application in a Case filed 14 April 2011;
b)	Response to Initiating Application filed 21 April 2011;
c)	Affidavit of Mr S sworn 13 April 2011 and filed 14 April 2011; and
d)	Affidavit of Ms W affirmed 20 July 2011 and filed 3 August 2011.
20.	An outline of written submissions was also prepared by the legal representatives on behalf of the husband and the intervener respectively, which were referred to in delivery of their submissions.  They have been of assistance to the Court.
21.	In addition, each of the parties tendered a significant number of documents, which became exhibits in the proceedings. 

Orders sought by each party 
22.	As set out in her Amended Initiating Application filed 7 October 2011, the wife sought the following orders in summary:-
Spousal Maintenance
1.	That by way of lump sum spousal maintenance, the husband pay the wife $100,000 within 2 months from the date of the order.
2.	That in the alternative, the husband pay the wife $420 per week.
3.	That by way of enforcement of the spousal maintenance Order made on 25 August 2008, the husband pay the wife $30,660, being arrears to 14 October 2011.
Child Support
4.	That by way of enforcement of arrears of Child Support, the husband pay the wife $17,500.
Property
(a) Personal property & chattels
5&6.	That the husband and the wife be declared sole owners of certain household items.
7.	That the parties do all acts and things to cause the balance of the household contents to be sold by a suitable auctioneer and the sale proceeds be divided 80 per cent to the wife and the remainder to the husband.
(b) Shares in companies and businesses
8.	That the husband be declared sole owner of the professional businesses known as Mr Simpson trading as Business G & Business H Pty Ltd.
9.	That the husband indemnify the wife and keep her indemnified against all business liabilities including Goods and Services Tax, Pay As You Go tax, general interest component, penalties and fines levied in the past, present or future in respect of his business affairs.
10.	That the husband pay the wife within 6 months from the date of these orders a lump sum equivalent to 40 per cent of the value of the husband’s business as determined by the single expert, Mr E.
11.	That the husband pay the wife within 6 months from the date of these orders, a sum equivalent to 50 per cent of the sum $364,000, being a sum shown in the Business G Pty Ltd financial accounts as owed by the husband to that company.
(c) Real property
12.	That the husband sell his share in land owned in Egypt to be sold for the best price available and the sale proceeds be applied to reduce his personal income taxation debt.
13.	That the parties list the former matrimonial home to be sold by auction at the earliest possible date, at a reserve price agreed between the parties or failing agreement as nominated by a valuer, and the sale proceeds be disbursed to pay all costs of the sale, outstanding mortgage, $20,000 to the wife (being 80 per cent of the agreed value of $25,000 of a Hi Fi system), an amount equivalent to 80 per cent of the sale proceeds of the husband’s shares in land owned in Egypt to the wife, and the net balance be divided 80 per cent to the wife and 20 per cent to the husband.
14-15.	Other orders in relation to sale of the former matrimonial home by auction.
16.	That at any time by agreement, either party may acquire the interest of the other party at an agreed price.
Taxation debts
17.	That the wife make payment to the Australian Taxation Office of 25 per cent of the husband’s personal income taxation liability excluding general interest component, fines and penalties.
18.	That the husband indemnify the wife and keep her indemnified in respect of business debts including all taxation debts of any jointly owned family company (registered or de-registered) and any personal income tax debt of his.
Other business related orders
19.	That the husband repay the Commonwealth Bank the amount incurred on the Business G Pty Ltd overdraft account secured over the former matrimonial home.
20&23.That the parties otherwise have sole right, title and interest in any other property in their possession, title or name and they be solely liable for and indemnify the other against any personal liabilities. 

Superannuation
24.	That the parties sell their shares owned by them or Simpson Superannuation Fund in Business F, Egypt at the best available price and pay the whole of those proceeds into the Simpson Superannuation Fund bank account.
26-29.Pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, that superannuation splitting orders be made in relation to the Simpson Family Superannuation Fund. In respect of the wife’s interest, the husband be entitled to be paid a base amount equal to 20 per cent of the total value of the fund, and in respect of the husband’s interest, the wife be entitled to be paid a base amount equal to 80 per cent of the total of the fund.
23.	The husband disagreed with all orders sought by the wife. As set out in his Further Amended Response filed in Court on 10 October 2011, he sought the following orders in summary:-
1.	That the wife’s application be dismissed.
2.	That the husband apply the sale proceeds of the Egyptian land to the Australian Taxation Office (ATO).
3.	That the parties do all things to sell any shares in Business F in Egypt in their names or in the name of Simpson Superannuation Fund and pay the sale proceeds into the trust fund.
4.	That the parties sell by auction the specified item of furniture presently in the former matrimonial home and divide the sale proceeds equally.
5.	That the parties sell the former matrimonial home at a price fixed to be a fair market value of the home by a valuer jointly appointed by them or failing agreement as nominated by a valuer. That the sale proceeds then be distributed to pay any rates, discharge the mortgage, pay any sale costs, pay the ATO a sum sufficient to discharge the husband’s personal tax liability, pay the ATO a sum sufficient to discharge Business G Pty Ltd tax liability and the balance be distributed 50 per cent to the husband and the remainder to the wife.
6.	That in the event the home is not sold within 3 months of being listed, then either party can request within a set time frame for the home to be sold by auction. The sale proceeds to be dispersed in the manner set out in the above order.
7.	That the contents of the former matrimonial home be sold and the sale proceeds be divided equally.
8&9.	Pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, that superannuation splitting orders be made in relation to the Simpson Family Superannuation Fund. Each party be entitled to half the other parties’ interest in the fund.
9. 	That the wife transfer her right, title and interest in the following businesses to the husband: Mr Simpson Pty Ltd trading as G Group, Business G Pty Ltd, Mr Simpson Professional Business, Mr Simpson trading as Business G & Business H (“the businesses”) or under any other business name.
[NB. 	Two orders numbered 9 in the husband’s Response]
10.	That the husband indemnify the wife and keep her indemnified against all liabilities arising out of her involvement in the businesses.
11.	That the husband be declared sole owner of certain household items.
12.	That the parties do all things to cause the balance of the household contents (to be sold) at an agreed price or failing agreement, at a price determined by a valuer and the sale proceeds be divided equally.
13.	That the parties otherwise be declared sole owner in law and equity of all items of property and financial resources presently in their respective names, possessions or control including superannuation entitlements and life insurance policies in their respective names.
15.	That the wife transfer the bank accounts of J and B into their sole names if the bank accounts are still in existence.
16.	That there be no order for spousal maintenance.
17.	That any arrears accrued pursuant to Order 1 of Orders made 25 August 2008 in respect of spousal maintenance be discharged and the order itself be discharged from the date to which it stands paid.
24.	As set out in their Response to Initiating Application filed 21 April 2011, the Commissioner of Taxation sought the following orders:-
1.	As a part of any final property settlement or orders between the Husband and the Wife, the Honourable Court:
	i.	take into account the taxation liabilities of the Husband
	ii.	make provision in the final orders for the payment of the taxation 
liabilities of the Husband to the Commissioner.
2.	That the Husband and Wife be liable to pay the costs of the Commissioner.
3.	Such further orders as the Honourable Court deems fit.

Current property-related Orders in force
25.	On 25 August 2008, I made an Order for interim spousal maintenance in the following terms:
Order 1:	That pending further order the husband shall pay to the wife for her maintenance the sum of $420.00 per week with the first of such payments to be made within seven days from this date. Such payment is to be made directly to the wife or as she shall otherwise in writing direct.
On that occasion, I also made Orders for the husband to pay the home mortgage as payments fell due, that he comply with the business overdraft secured over the home, I noted his child support assessment and restrained him from applying credit held to his account by the agency to reduce his assessment, and ordered he pay the children’s private health insurance and all insurance in respect of the home and its contents.
26.	On 4 February 2011, Orders were made in the Supreme Court of New South Wales (NSW) for Business G Pty Ltd to be wound up and an administrator appointed.
27.	On 10 March 2011, I ordered the parties to sell any shares held in Egypt in their sole or joint names or in the name of the superannuation fund for the best possible price and forward those funds into the Simpson Family Trust Commonwealth Bank account …51 (Order 7).
28.	On 5 May 2011, I made Orders by consent for the former matrimonial home to be sold by auction at a reserve price and in a manner agreed, and failing agreement, with an agent/auctioneer nominated by the President of the Real Estate Institute of NSW at a reserve price of $1,235,000.  Upon completion of the sale, I ordered that the sale proceeds be dispersed in the following manner and priority:-
a) 	in discharge of the mortgage secured upon the home;
b)	in payment of real estate agent’s commission, legal and other costs on sale;
c)	in payment to the husband an amount he has expended under paragraph 1(d) (that being the cost of any reasonable repairs or renovations on the home);
d)	in payment of $20,000 to each party or as they direct;
e)	in payment of the balance to a trust or controlled monies account as agreed between the parties and failing agreement into a controlled monies account to be operated only on the joint authority of the solicitor for the husband and the solicitor for the wife.
Upon their consent, I also made Orders for the husband to remove a Hi Fi system and a specified item of furniture from the house, and sell the the item of furniture by auction, then place the sale proceeds in the trust or controlled monies account.
29.	I made Orders in relation to the experts Mr P and Mr E preparing reports in these proceedings, and for the payment of their fees.  I also made various Orders in relation to the production and inspection of documents by the parties, and in relation to issuing subpoenas and inspecting such material.
The Wife’s Case
30.	The wife, the Applicant in these proceedings, has conducted her case on the basis that the husband has been deceitful in his behaviour towards her in many respects.  She asserts the husband has deliberately sought to minimise his assets and income whilst maximising his liabilities so as to avoid a proper distribution of the parties’ assets.  She asserts that the husband has allowed debts to accrue, and in this regard, she particularly identifies the husband’s liability to the ATO.  It is her case that the husband has not dealt with his income tax liabilities in a proper and orderly fashion.  It is her case that he has been deliberately non-compliant with his taxation liabilities and obligations.  This, she says, has resulted in the significant debt presently outstanding to the ATO.  
31.	The wife’s position initially was that the husband should be solely liable for all taxation.  As I understand her position, she later indicated that she believed that she should have some exposure to liability for the tax itself, but not for any interest or penalties that accrued thereon. 
32.	It is her case that the husband has not complied with Orders requiring him to pay spousal maintenance to her, and in this regard, she seeks a lump sum payment to be made to her at the time of adjustment of the parties’ property entitlements.  She also asserts that the husband has not complied with assessments raised against him by the Child Support Agency for child support. 
33.	She says that the husband has deliberately let trading companies go into decline, and has indeed placed one of the companies controlled by him into liquidation. 
34.	She asserts that he has dealt with other company structures so as to remove any value in them from the pool of assets.  
35.	Finally, she asserts that the husband has done everything in his power to prevent her from proceeding in a timely and orderly fashion with her case and has prolonged the proceedings by his inactivity and refusal to comply with proper requests.
The husband’s case
36.	The husband asserts that he has done his best to trade under significant financial difficulties and the pool of assets, as asserted by him, has not been diminished by any deliberate, willful or improper act on his part.  He asserts that because of payments he has made to or on behalf of the wife and the children following the parties’ separation that he was unable to pay monies as required to the ATO.  He contends that because of the amounts so paid the wife should share in the existing liability to the Commissioner, including general interest and penalties imposed because of non-payment of primary tax.  
37.	It is his case that he has not failed to disclose his true financial position.  He asserts that he has complied with all proper requests made of him in a timely and proper fashion.  
The commissioner of taxation’s case
38.	The Commissioner for Taxation asserts that he should be paid the full amount owing for taxation, being taxation proper and penalties.
39.	It is clear that, from the way in which the Commissioner has conducted his case, the amounts now claimed are all for taxation arising after the parties separated.  
40.	There is no dispute that the amounts of taxation claimed is payable to the ATO.
The hearing before me
41.	In this matter, I heard evidence from the wife, whose evidence was interrupted by illness, the husband, the wife again briefly on a second occasion.  Then on the third occasion the matter was before the Court, I heard from the wife again, the husband, Mr KK (an expert called by the wife), Mr L (an expert called by the husband), the husband again and Mr C, a witness of the husband.
42.	Each of the parties gave lengthy evidence before me.  There were a number of expert witnesses called as to the financial affairs and accounting practices of the husband and his business enterprises.  There is also in contest a significant loan alleged to have been made to the parties by a Mr C who gave evidence.  The allegation is that the loan carries significant interest and the husband asserts it ought be paid or be a liability of both the parties.  
The evidence of the parties before me
43.	The wife gave evidence over a number of days.  She gave evidence in relation to Business G Pty Ltd, that the husband had control of that company and should be liable for any losses incurred.  She said that his conduct had resulted in tax liabilities and caused the company to be wound up when it should not have been.  She said she was confused as to the husband’s state of affairs.  She said that the debt to Mr C was a debt between the husband and Mr C and should not be taken into account.  At first, she said this was not a genuine liability.  Later, she said it was not a genuine debt as any monies loaned had been repaid. 
44.	She said the husband’s personal tax liability was a major issue in the matter and he should be solely liable for both tax and penalties whenever incurred.  She said this was so because he had control of his affairs at all time and could have paid same as he went.  She said she had received no benefit from his income.  
45.	She alleged that the husband had not made a full disclosure of his financial affairs.  She was asked about her use of the word misfeasance and said that she did not understand what it meant.  However, she said that, to the best of her ability, she understood the balance of her affidavit.  She was however also not sure about other parts in her affidavit and expressions used such as “statute-barred”.  She was asked about her description of the company at paragraph 139 of her affidavit, wherein she referred to Business G Pty Ltd as a sole purpose company.  It was put to her that this had a meaning in taxation law.  She said she could not comment on how a lawyer would read it.  She said that expression was included on advice.  
46.	She was taken to paragraph 182 of her affidavit and asked what she meant to convey therein.  It was put to her that what she alleged was a serious allegation.  She said she did not know what it meant and when asked why she put serious allegations in her affidavit, she said she did not know why it had been included.   
47.	As to paragraph 183, she said that she assisted in the preparation of the table of figures set out therein.  
48.	When taken to paragraph 103, she said the figure shown therein, $291,228, was incorrect.  She says that the husband was confused between the sale price and the amount of capital gain. 
49.	She confirmed that the Viridian account was in credit (paragraph 113).  She then said she did not understand parts of her affidavit, and that she had a shadow expert involved in the preparation of the matter.  She knew she was obliged to tell the truth in her affidavit and that she had been telling the truth.  
50.	She could not say which parts of her affidavit were correct and which were not.
51.	She then said that she should pay half of the taxation debt up to separation.
52.	She corrected a date in paragraph 167 by saying that it should be 2006, not 2008.  She said her case was that he could have paid had he chosen to do so up to the hearing date.  She again said she derived no benefit from income after 1 July 2006.  She agreed the husband was ordered to pay maintenance.  She said that from August 2008 to the end of March 2010 he complied with the Order, paying some $34,980.  The Order of the 28 August noted that he would continue to pay child support in the sum of $1,237 per month.  This was paid for a period of up to approximately 15 months producing an amount of $18,000 paid in child support.
53.	She said that from November 2009 until May 2010 he was paying approximately $100 per month in child support.
54.	The wife was then cross-examined as to payments that the husband had made.  She agreed that he had paid interest of some $27,560, mortgage instalments of approximately $2,000 per month until March 2011, school fees of between $60,000 and $80,000.  There was dispute concerning school fees.  Fees were outstanding.  The wife had asked for a reduction.  She said that the husband should pay private school fees outstanding in the sum of approximately $2,035. 
55.	The wife said she did not pay rates; that they had been paid but were currently in arrears.  She agreed that the husband had paid rates.  She said that she thought the property was insured and assumed it was necessary to have insurance.  She did not know the company carrying the insurance.  Her position continued to be that the husband ought to have paid tax as it fell due from separation to today.  It remained the wife’s view that the husband had the capacity to do this.  She said that the husband should always have obeyed the Court Orders for maintenance and he should have paid child support as assessed, together with the mortgage over the home.  To Counsel for the Commissioner, she agreed that the pre-separation tax liabilities should be treated equally.  She did not agree that penalties should be shared, and did not accept that she should bear one half of the penalties.  She said that she left everything to the husband and that it was not her responsibility.
56.	It was put to her that there was no reason to differentiate.  She said that her tax was up to date.  She knew that the husband had unpaid tax.  She knew that he was paying the unpaid mortgage, outgoings and school fees.  She knew that he was paying these amounts instead of meeting his tax obligations.  
57.	She said that the husband had requested the children change schools as he was not able to meet the fees.  She said that she disagreed with a change and the children remained at their schools for the first term of 2008.  She was not able to recall what had happened when the husband endeavoured to change the children’s schools, in particular in respect of a letter written by her previous solicitor.
58.	She said the father had paid child support of $1,237 from the 28 August 2008.  Prior to that, he was paying her a larger amount.
59.	She said she did not know the amounts of child support paid after September 2007 and that her statements were at home.  It was put the amount was $1,237, she said she did not recall the amount.  
60.	She said that a number of coins had been made into cuff links.  She last saw them before the husband left the home.  She said that the husband was responsible for household insurance. 
61.	She agreed that the husband had paid contents insurance as well as building insurance.  She said that she had not brought to the husband’s attention a statement of claim concerning rates.  It was suggested it would have been sensible to have her solicitor bring it to the husband’s attention and to contact the council.  It was then put that this was another example of the wife taking no responsibility for any debts following separation.  The wife said she took the view it was his responsibility then later said it was her intention to pay.  She then said she told council that she had the hearing coming up and they agreed to give her some leeway.  She said that she was aware that a judgment could be entered if no action were taken to prevent that being done.  She said that she assumed he had paid rates for water in excess of $1,100 per year.  She was questioned about payment of utilities and when asked about the amounts the husband had paid, she said that he should have paid tax but he should also have paid for electricity.  He should have put payments for telephone and spousal maintenance before tax.  When asked why this was so, she said that it was very difficult for her.  
62.	She was critical of the husband for not keeping her informed as to tax problems.  She said that she had attended one meeting, as referred to in paragraph 65 of her affidavit.  She said her recall was bad and was unable to explain how she could categorically say what was not said.  She then made reference to discussions with her solicitor later when preparing her affidavit.  She said she had gone to a meeting and listened but had not understood.  She did not ask why the company was in such a bad situation.  She said that Mr L had tried to show her documents and she assumed he had endeavoured to explain.
63.	She said that when she received a notice pursuant to the income tax debt she rang the ATO and gave them the husband’s current address.  
64.	She agreed that the Commonwealth Bank froze an account because she had withdrawn $16,000 from that account to pay school fees.  She did not know what “overdraft limit” meant.  
65.	She said accounts at private schools were all paid by the husband or the company.  
66.	She said that she was working on the basis that she would seek spousal maintenance.
67.	She was shown documents and agreed that they indicated that over $46,000 had been paid in respect of income tax.  She identified the three components – tax, general interest and penalties.  She again repeated the tax should have been paid.
68.	It was then put to the wife, and she appeared to accept, that the husband had paid the following amounts:-
(a)	Spousal maintenance: $37,130;
(b)	Mortgage instalments: $118,000;
(c)	School Fees for I School and N School: At least $60,000;
(d)	School Fees for O School: $29,450;
(e)	Software: $1,000;
(f)		Rates: $4,400;
(g)	Insurances: $9,000;
(h)	Electricity: $3,750;
(i)		Telephone: $2,100.
Totalling: $264,830.
The wife indeed conceded that this was the amount paid since separation for the support of the wife and the children.  She agreed it did not include amounts paid at her request.  She acknowledged the husband had paid some moneys in respect of taxation, an amount of $46,383.  In addition, the husband had paid by way of child support some $323,000 approximately.  She said that her case was dependant on precise figures and for that purpose she needed the advice of experts. 
69.	Asked about her current income, she agreed that it was $941 per week.  Asked whether the figures stated in the husband’s Form 13 were reasonable, she was unable to answer.  Asked about child support, she said that she had spoken to her Counsel about the letter received from child support.  She then agreed that the amount was some $307,681 that was paid.  Asked then did she still say that he could have still paid all tax, she said no.  Asked to concede that the tax liability should be borne by both, she said it would be unfair to pay tax incurred after separation.  She said she should be responsible up to separation, but post separation taxation should be his responsibility entirely.  She did not know where the money could have come from to meet that tax liability however. 
70.	She appeared to agree on re-examination of the husband’s statement of financial circumstances that his expenses were reasonable.  She conceded that the husband had the expense for two children from November 2009 onwards.  The children had left respectively I School and N School at the end of Term 1, 2008.  
71.	She was asked about the Mr C loan.  She conceded $70,000 was borrowed in 2002.  She did not know the reason.  She had read Mr C’s affidavit.  She said she believed the loan or loans from Mr C had been repaid.  Copies of cheques had not been located.  She said that she acknowledged the amount of $78,000 was the amount owing to Mr C at the time.  She said that there was never an agreement by her, or to her knowledge, that required her to pay interest.  She asserted that any interest outstanding was the husband’s debt.  She said that she was present at a conversation where the request for a loan was made.  
72.	The wife then became distressed and sought to be excused.  By arrangement, she was excused from further attendance, and the wife’s Counsel agreed that the husband could be called and give short evidence in chief.
73.	The husband was then called.  He said that when monies were borrowed from Mr C, the parties were short of funds in respect of a purchase of a property at Suburb A and Suburb T particularly.  The husband said he had received $241,000 for his interest in the Z Professional Business.
74.	He said that in December an application was made to the Commonwealth Bank for a loan secured over Suburb A.  He said that he was willing to proceed but that loan was not proceeded with. 
75.	He said that the wife has accounts as trustee for the children.  He changed or sought to change the amount specified in paragraph 6.1(b) in his affidavit from $70,000 to $125,000.  He said that certain shares that remained in Egypt were to be sold and monies transferred to his account.
76.	To Counsel for the ATO, he said that he had been making payments since April 2006 for the benefit of the wife and during the same period incurring tax and penalties of approximately $139,000.  He said that he paid $73,000 whilst making payments to the wife, but that it was impossible to make the entirety of those payments. 
77.	The matter at that stage was adjourned.  Prior to adjournment, I made Consent Orders for the sale of the former matrimonial home by auction, for the parties each to receive $20,000 and for the balance of monies to be placed in a controlled monies account.
78.	The matter resumed on 20 July 2011.  The wife gave further evidence and was cross-examined extensively by the husband’s solicitor as to the state of her health.  She said that on the 4th of May she could not carry on, that she felt dizzy and nauseous.  She said she saw a Dr U the next day.  She had been unable to continue on the 5th of May giving evidence in Court.  She said she was vomiting and suffering from diarrhoea.  She said that when she saw the doctor she had cramps and had been vomiting.  She said that she drove home on the 4th of May still feeling dizzy.  It was put to her that she could not continue because she found the questioning very difficult and that she did not want to go on.  She said that this was not so, she was sick.  She said that she drove to the doctor’s surgery on the 5th of May.  She said she was too sick to attend Court.  She agreed that she had driven to the husband’s premises to deliver their daughter.  She had left home for the doctors at about 11.46 am and saw the doctor at 12.02 pm.  She left the doctor’s surgery after the consultation still too sick to attend Court and give evidence.
79.	She said that she went to obtain medication.  She agreed that she went to a bread shop and that she went to a florist.  She was shown a document and was equivocal as to whether or not she agreed.  It was put to her that she did not return home until 1.45 pm and that she had been out for two hours.  She said she had purchased medication.  When asked how long she had spent at the shops, she did not recall.  She said she had gone to toilets in the shops.  It was put to her that she was making it up about going to the toilet, which she denied.  
80.	She had been asked before to produce children’s bank accounts, which she did.  There was an account for J with the Commonwealth Bank account …87, and for B with the Commonwealth Bank account …95.  Both accounts had been closed and she had withdrawn the monies, which she had spent.  
81.	She said that she had shares in Egypt but did nothing with them.  She had appointed her aunty who had in turn employed an accountant.  She agreed that the Egypt shares cost about $240,000.  She asserted that money from an estate was used to purchase the shares.  
82.	She said that she had paid $8,000 into trust for her barrister.  She did not recall how much she had paid to her solicitor.  She said that she had repaid a loan of approximately $2,000 in May, that the money had been in her bank account.  In respect of another loan, she had paid $1,500 leaving a balance of $10,000.  She claimed she still owed money to her parents.  She had bought a car for $11,500.  She said her parents gave her money for solicitor’s fees, which was not part of her loan to them.  She said that part of her case related to the payment of expert fees.  She knew the husband had paid $5,000 to Mr P who then wanted a further $5,000 before releasing his report.  She said that if she could borrow money she would to pay Mr E for at least half of his report.  She said that she had not seen letters advising her of the Orders made in her absence for the sale of the home on the prior occasion.
83.	She said that she understood the concept of a trustee for sale of the property, and that since the 5th of May she had brought in agents.  She had not discussed the sale of the property with the husband.  She said she wanted to stay in the property as long as she could and the property could go to auction.  
84.	That effectively concluded the wife’s evidence and the matter was then adjourned once more.
85.	Upon the matter resuming for its third stanza of hearing, the wife was again recalled.
86.	She conceded that she had asked for further orders in an Amended Application but had not seen the husband’s Amended Response and Financial Statement.  She now wanted lump sum maintenance which would have to come from the sale proceeds.  In the alternative, she wanted $420 per week for periodic spousal maintenance.  She agreed that the sum was not based on actual needs as at the present time.
87.	She agreed that in her last statement of financial circumstances, she had expenditure of $871 and income of $941.  She said that she was no longer paying school fees in respect of two children.  She said that she did not need money to cover a shortfall, there was no shortfall.  If she does not work, she does not get paid.  She could not tell the Court what were her actual earnings.  She said she had carried out a calculation to arrive at a figure of some 73 weeks in arrears of spousal maintenance.  She said the husband reduced his payments when two of the children went to live with him.  
88.	The wife then closed her case.
89.	The husband was called.
90.	He confirmed that his latest statement of financial circumstances was correct.  He said he was going to sell shares in Business F in Egypt and put the money in the superannuation fund.  He said he had organised for this to be done.  He said that he had received $250,000 Egyptian Pounds in four payments.  He could not recall if there was a written agreement for sale of the shares.  He thought there may have been a share transfer.  He said he had received three instalments but not the fourth.  He then said that the money had come into his Commonwealth Bank account …43.  Money was then returned to the bank in Egypt and subsequently paid into his solicitor’s trust account.  The husband said there is nothing owing to the liquidator of Business G Pty Ltd.  He acknowledged that any debt was not to be included in the balance sheet and he would indemnify the wife.  
91.	In cross-examination, he said he had moved in January from where he was paying rent of $500.  His new rent was $750.  He needed extra space for his mother and the children.
92.	He said that the wife could live with her parents.  He said that she presently receives $78.50 per week and that he would pay the current assessment for Child Support. 
93.	He agreed that he had not paid the mortgage in the last six months.
94.	Asked about his assertion that he had $18,000 at the time of marriage, he says that he had no document to support this.  He said that they lived in her father’s property from the date of marriage to April 1993.  He asserted that they paid $100 rent.  He said that the money was paid in cash to avoid tax.  He agreed no mention of payment of rent appeared in his affidavits.  
95.	As to jewellery as referred to in paragraph 3.1(v) of his affidavit, he asserted that he owned jewellery and coins.  He guessed their value of $10,000. 
96.	He said that his further qualifications were a diploma.  This did not entitle him to membership of the appropriate professional organisation.  
97.	He said he was involved in public speaking some of which he was paid for, some of which he was not.  The last time, in the week prior, he had received $1,750, and had performed public speaking some 35 times in the last year.  He asserted that his Form 13 had included public speaking fees in his income.  He said that all speaking engagement fees were paid to his account without exception.  He said that bank account statements had been made available before the recommencement of the hearing.  It was put to him that he had sworn in June 2008 that his income was $2,330 per week and in August 2008 it was $5,160 per week.  He explained the difference by saying his accountant had advised him that he should receive management fees.  
98.	He agreed that he had applied to the Supreme Court for liquidation of, and a liquidator to be appointed to, Business G Pty Ltd.  He said information supplied to the liquidator came from him or his bookkeeper.
99.	Taken to Mr P’s report, he said he did not accept that $216,000 was a reasonable income.  He said he had not withdrawn monies from the company.  He said he had received additional monies over his salary.  He had referred to $75,000 being a loan.  
100.	He said the Suburb V professional business was sold in 1998 for $60,000.  
101.	He agreed that he had not formally asked for documents in the former matrimonial home.  He said that his father had provided an inheritance.  He said the wife was a shareholder and director in Business F.  This was done, he asserted, on the accountant’s advice for taxation purposes.  She could receive a tax free amount.  That amount was not paid to her.  He said that he reimbursed the company actual costs plus a margin of 10 per cent.  
102.	Asked why he changed company structure, he said that the first company was deregistered in 2006, that was Simpson Investments Pty Ltd.  Business G Pty Ltd took over the debts of Simpson Investments Pty Ltd, some $191,000 reduced to $91,000.  He agreed that he swore an affidavit in the Supreme Court proceedings which had annexed to it a balance sheet of Business G Pty Ltd. 
103.	He said that Simpson Investments Pty Ltd is owed money according to the balance sheet.  In the documents for the Supreme Court, reference was made to losses of $36,719.  He agreed that he wanted the company liquidated as it was making a loss in 2010 of $36,000.  He said he was aware that Mr P’s report showed a profit of $105,000 and that he was familiar with that report.  He said that Mr P would not be cross-examined.  He said he sought to liquidate the company because it was trading insolvent.  
104.	Asked about an administration fee of $89,000 in 2010, he said he did not know how this figure was made up.  He said Business G Pty Ltd did not trade past September 2010 but received monies from accounts already rendered.  He said he carried on operation with a new business identity which employed the same people and used the same assets.  He said that Business H Pty Ltd started two or three months ago, before that trading as Business H and nothing was significantly changed.  He said that he pays for a virtual office.  He said that he had not lodged tax returns for the years ended 30 June 2004 to 30 June 2008 until August 2008.  He asserted that for the years ended 30 June 2004, 30 June 2005 and 30 June 2006, the wife was the bookkeeper and that it was her fault.  He said that he had not paid attention to the balance sheet in the Supreme Court.  He was aware there could be a tax liability for the company.  As at March 2010, he had no knowledge of any tax liability.  Between March and September 2010, he made no enquiry.  He said the accountant had not received notice from the ATO.  However, he continued to insist that the fault was the wife’s.  He said that the accountant was a Mr Q at all times.  He said that he endeavoured to call him on more than 100 occasions with no reply.  He asserted that he had no responsibility for the delay.
105.	He said that J was nearly 17 years old and B nearly 15 years old.  Both children he said were dependent upon him.  He said he was paying school fees by instalments.  
106.	He said he was aware of Mr E’s report and nothing in that report was the subject of challenge.  He said that in 2008 he was sending the wife all relevant documents.  It was put to him that in three months he had banked some $300,000.  He said accounts were not asked for.  It was put to him that he never disclosed land in Egypt until his affidavit filed in August 2008 and he said that he could not recall.
107.	Mr KK was then interposed. 
108.	He gave his occupation as Chartered Accountant and said he had been carrying out accounting activities for the husband and his entities for about 12 months from late 2010.  He said that he had prepared taxation returns for the years ended 30 June 2008, 30 June 2009 and 30 June 2010 and a month later had filed amended returns.  In the amended return for the year ended 30 June 2010, he said there was no taxable income and indeed a net loss for the husband.  He had received information from Mr L.  He had prepared returns for the company.  There was a mark up in expenses.  He said income had no correlation to expenses in the company.  A 10 per cent service fee the company charges to the husband was shown in earlier returns.  
109.	He said that he only had company information.  He had included 10 per cent in the company returns.  For 2000, company expenses were $900,000 plus 10 per cent, that is $90,000.  He said expenses had been attributed to the husband correctly.  He was carrying on business on a cash basis, not an accrual basis.  Expenses do not have to be paid, they have to be incurred.  He made reference to a specific ATO ruling.  He said, however, that if there was no intention to pay, it could give rise to an audit.  
110.	He had included the 10 per cent service fee as a deduction.  If it had not been included, it would make a difference.  
111.	He said he had prepared company returns.  Asked if he was aware when he received company information that the company had been liquidated, he said he thought so, which was a cause of concern.  Information was for the time prior to the date of liquidation.  He said the income was shown as the income of the company when it was really the income of the husband.  He said he had had no contact with the liquidator and did not think it relevant at the time. 
112.	He said again that the husband operated on a cash basis.  He said GST would have been applied if the income was over $75,000.  He was not sure if the husband was registered in respect of GST.  He said, however, that he (the husband) would have been liable.  
113.	He said there was no GST in the service fee and there should have been.  He said he was getting his instructions from the husband and Mr L.  He was doing returns for the period prior to liquidation.  He said that he has held nothing back. 
114.	To the husband’s Counsel, he said that GST was payable on taxable supply.  Asked if GST was payable in respect of a service charge, he said that no GST was paid.  He said there may have been possible penalties; there would be no change in the principle tax.  He said he had tried to speak to the previous accountant, Mr Q, numerous times and had received no reply.  He had prepared a draft return on 14 April 2011 and a final return on 29 April 2011.  It was a matter of applying a different methodology.  He had been told by Mr P that previous returns were done on a different basis.  He was aware of material in the Supreme Court including balance sheets.  He said he had spoken to Mr L about taking the income from the company to put in the husband’s return.  The balance sheet was sent to Mr P after he had spoken to him.  The inventory consisted of professional business supplies.  Asked about the service company, he said that the tax office could unravel the arrangement.  To the wife’s Counsel he said that he had seen no service agreements and known of no payments for service fees. 
115.	The next witness called was Mr L.
116.	He gave evidence in chief that he kept the accounts using MYOB.  The system can produce a balance sheet.  He had produced a balance sheet for the winding up.  By this I understood him to mean the liquidation of Business G Pty Ltd.  He had produced a later balance sheet for Mr P.  Asked why it was a different balance sheet, he said the first balance sheet was not properly organised and later material had come through.  The later balance sheet came after a request by Mr P.  He was asked to alter the balance sheet to conform with prior years.  
117.	To the wife’s Counsel, he said that the company had undertaken to pay a chattel mortgage in the husband’s name.  The payments were being made by Business G Pty Ltd.  He said credit card debts had not been allocated.  They were in the order of $30,000.  He said he had requested information from AMEX, which he had passed on to Mr P.  He said he spoke to the husband about once per week and that they had a close working relationship.  He spoke of the company receiving 10 per cent based on cost.  Asked when entries were made as to the 10 per cent, he said that this had been done at the same time as the transfer of monies.
118.	He said he and Mr KK had discussed changes to the tax returns.  He said later returns showed the income as nil.
119.	He said that he was not registered in Australia as a certified practicing accountant.  He said his qualifications were South African.  He said, however, he was accepted by the ATO to prepare returns for business activity statements and GST.
120.	He said that he had done work for the husband and work on Business G Pty Ltd since 2008.  They had lodged returns for earlier years.  He said there were penalties and Mr KK has the numbers.  He said he had a broad idea that penalties and interest were in excess of $60,000.  Referred to paragraph 15 of his affidavit in relation to providing financial documents to the wife, he said he sent documents for Business G Pty Ltd in envelopes and did not have them the day he gave evidence.  He said they would be in his archives.
121.	He said that it is important to place a proper address on documents.  He said the company’s secretary had responsibility and he did not.  
122.	He did not know who the secretary was.  He said 10 per cent should have been collected for GST.  
123.	Again, he said he had been endeavouring to contact the previous accountants.  He said he commenced work on the 2007 year and first noticed that at the end of 2008 no business activities statements and GST activity appeared in the records.  He would speak to the husband about a new accountant being engaged.  
124.	He said he had seen the reports of Mr P and Mr E.  Shown a document that set out transactions, he said that he was familiar with those entries, payments made and monies received by Business G Pty Ltd.  He said that the husband was entitled to $3,300 per week.  He said the husband administered the company.  He said the drawings go through loan accounts and it was best to have all activity in one account.
125.	The husband then continued his evidence.
126.	He said he had complied with the spousal maintenance Order until March 2010 and had made no attempt to discharge the Order until the commencement of the current hearing. 
127.	He said he did not know who had purchased the land in Egypt.
128.	Asked about a Mercedes Benz vehicle, he said that the current value was nil.  He said the vehicle was the subject of a loan for purchase, the vehicle was not leased.  He agreed there was no entries for the car value or for repayments.  He said he was paying from his National Australia Bank (NAB) account but did not know how much.  He thought approximately $1,000 per month.  He said he cannot have a less expensive car.
129.	He told the lender of those monies that his income was $87,000 per annum.  Asked about other values that he had attributed in his loan application, he said that he had no idea what the entries meant. 
130.	He confirmed that Business X is a lending body and he had borrowed a number of times from them.  He had borrowed $40,000 to purchase assets and furnishings.  He could not say in his loan application why he described himself as a professional in a different field.  
131.	He said that when he was a director of Business G Pty Ltd the overdraft of that company had a limit of $10,000.  He agreed that at separation the loan was approximately $9,200, which then increased to $50,000.
132.	He said that he had minimal work because of the global financial crisis.  He said that he did pay tax in the calendar year 2008.  
133.	He agreed that the current mortgage debt was $374,000 (that is at the third and final stanza of the hearing).  
134.	He agreed that the company was paying his tax liability via his loan account.
135.	He said that the parties owe approximately $150,000 to Mr C.  He said the renovations cost about $300,000, the wife had the documents and he had not asked for them. 
136.	He said that the loan had been renewed each year and in 2006 a caveat was placed on the title.  He said that in 2005 he had paid Mr C $1,500.  He agreed the Suburb Y property was sold in 2002 and the net proceeds were some $368,000.  It was put that he maintained the debt in order to reduce the asset pool, which he did not agree with.  He said he had borrowed $30,000 to $40,000, the balance claimed was interest.  He said that he was not at all responsible for the interest being so high.  
137.	In 2008, his taxable income was $280,000.  In April 2011, when completing a statement of financial circumstances, he asserted that the amount owed was some $137,000.  It was asserted that at some point the amount had increased to $155,000.  He said the interest is calculated on a compounding basis.  As at the date of hearing, he seemed to assert the amount outstanding was $147,000.  He said that he had seen calculations in the last week as to how that figure was arrived at.  He said he believes Mr C will enforce payment.  He agreed two of the cheques by Mr C had been made out to Simpson Investments Pty Ltd.  He said that the parties did not have the means to repay after 2002.  He said the total cost of renovations were approximately $500,000 and he funded $430,000 of that sum himself.  
138.	He said that following separation, the wife remained in the former matrimonial home.  (She remained in that property until its sale, which occurred by arrangement between the parties following the conclusion of the hearing.)  
139.	He agreed that there was no mention of interest in the statutory declarations in relation to the loan.
140.	The last witness called was Mr C. 
141.	He identified a document, Exhibit K, as a statutory declaration setting out that he was owed money.  He said that the document has been in his possession.  He said the husband was a close friend.  He said he calculated the amount outstanding to him at present was $148,000.00.  He said that no money had been received at all.  He said that he had made no demand for payment, he had just asked for payment.  He said that he did not consider the money to be owed by the company, notwithstanding two of the cheques were made out to Simpson Investments Pty Ltd.    
142.	It was put to him that the wife was not present during conversations about the loan and he asserted that she was.  
143.	This then concluded the evidence before me. 
144.	I then heard submissions from the parties.  It was put to me that the tax now claimed by the Commissioner of Taxation is only in relation to the period post separation from late April 2006.  
What do i make of the evidence of the parties and their witnesses
145.	During her first stanza in the witness box, the wife was finding the experience of being closely cross-examined anything but comfortable.  I clearly found, however, that whilst she might have felt some discomfort, the wife was not in such a position that she was unable to continue in evidence. 
146.	Notwithstanding the medical certificate that became an exhibit before me, I am satisfied that she chose not to continue her evidence because she found it difficult to do so, not because she was physically incapable of doing so. 
147.	I am satisfied from her evidence on the second occasion that she was able to see her doctor and thereafter remain away from her home for approximately two hours.
148.	I am further satisfied that the wife was determined to paint the husband in the worst possible light.  She was determined to indicate that the liabilities, particularly in respect of tax, should fall to him alone.  She did, however, make some concession regarding income tax, up to the date of separation, which, as it transpired, is of no great importance because the only tax remaining unpaid is that which was incurred after separation. 
149.	The wife was extremely grudging in her concessions that the husband had paid significant amounts of money to her or on her behalf, which I have referred to earlier in these reasons for Judgment, after the parties separated.
150.	I am also concerned that the wife did not act appropriately so as to bring matters to the husband’s attention.
151.	As I have said, I have formed the view that she was determined to promote her case to the highest level, whilst doing everything she could to damage the husband’s case.
152.	So far as the husband is concerned, I found him to be a glib and self-satisfied witness.  I am of the view that he dealt with the truth lightly when it was in his perceived best interests to do so.  
153.	His case is that he has been the unfortunate victim of a failure of business enterprises to the extent that he has had to liquidate one company to avoid further exposure.  However, the evidence is to my mind clear, that is that he continued to carry on the business previously conducted by the liquidated company in his own name.
154.	I am satisfied that requiring the company to be liquidated was the husband’s decision.  I am satisfied that he allowed, or even caused, that situation to arise in an endeavour to paint himself in the worst position possible, and to deliberately minimise and diminish the pool of available assets.   
155.	As I understand his evidence, he tried to excuse his non-payment, or decreased payments of spousal maintenance, on the basis that he was unable to continue to meet those amounts.  He made no attempt to seek to discharge or vary the Order until the commencement of this hearing.  He merely ceased to make the payments.  
156.	It is his case that, having regard to the significant payments that he made after the parties separated, the income tax indebtedness that he has incurred since separation, including interest and penalties, should be borne by he and the wife equally.  I am satisfied it fell to him to file his income tax returns, which he did not do, and also to take responsibility for the completion and filing of business activity statements and GST returns.  
157.	His evidence in respect of the monies borrowed from Mr C I found unconvincing.  
158.	On the whole, I found the husband a very unsatisfactory witness.  I find myself unable to accept his evidence and the explanations he gave in the witness box as to many of his financial dealings.  I am satisfied that the husband has chosen not to make a proper disclosure of the amounts of money that he has obtained either from his professional businesses, or from the sale of assets that occurred during the course of the marriage and particularly after the parties’ separation.  At the end of the day, I am left in real doubt as to the exact financial affect of the husband’s financial dealings.  
159.	I found that the expert witnesses who were called to give evidence did their very best to produce material and give evidence that assisted the Court.  However, because of the difficulty in accepting the evidence of the husband himself, much of the expert evidence was of no great assistance to me in determining the matter.  
160.	I found Mr C’s evidence to be designed to help the husband.  From his evidence, I formed the impression, and a clear impression, that he and the husband had together hit upon the idea and concept of interest well after the advances had been made.  
161.	I accept that monies were lent with the knowledge of the wife.  I am, however, satisfied that interest was very much an after thought and it was devised, not for the purpose of ensuring payment to Mr C, but rather was intended to, once again, increase the apparent liabilities of the husband and/or the parties to the detriment of the wife.  
162.	I also have had regard to the report of Mr P, which was not challenged.  Mr P was not required to attend for cross-examination.  
The law to be applied
163.	The Court is obliged by the provisions of s 79(4) of the Family Law Act 1975 (Cth) to take into account the following matters:-
a)	The financial and non financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation and improvement of any of the property to the parties to the marriage or either of them (subparagraphs (a) and (b)).
b)	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 (subparagraph (c)).
c)	The effect of any proposed orders upon the earning capacity of either party to the marriage (subparagraph (d)).
d)	The matters referred to in s 75(2) of the Act so far as they are relevant (subparagraph (e)). 
e)	Any other order made under the Act affecting a party to a marriage or a child of the marriage (subparagraph (f)). 
f)	Any child support payable (subparagraph (g)).
164.	Accordingly, in assessing the entitlement of each of the parties to property settlement, there is both a retrospective element relating to contributions of each of the parties and a prospective element relating to matters referred to in s 75(2). 
165.	According to the guidelines established through a series of leading decisions, the Court should determine the following matters on the evidence:-
a)	Firstly, the Court must determine the assets, liabilities and financial resources of the parties to the marriage as at the date of the final hearing.
b)	Secondly, the Court must consider all relevant contributions of each of the parties and, where possible, assign an entitlement, expressed in percentage terms of each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s 75(2) factors.
c)	Thirdly, the Court should then consider the prospective components of the claim of each of the parties arising as a result of the provisions of s 75(2). The Court should then identify what alterations, if any, should be made to the entitlement to each of the parties as earlier assessed on account of contribution as is deemed necessary having regard to those s75(2) factors.
d)	Fourthly, having regard to the entitlement of each of the parties then arrived at, it is necessary to stand back and look at the result thus achieved to ensure that it is in all the circumstances fair and equitable to each of the parties.
The pool of assets
166.	There are assets of a non-superannuation nature and assets of a superannuation nature.  I propose to deal with the two different types of asset in separate pools.  The first of such pools will be the assets of a non-superannuation nature. 
167.	There are a number of non-contentious assets to be included in the asset pool.  These items are:- 
•	the wife’s motor vehicle at $9,000;
•	the wife’s bank accounts at $3,501;
•	money in a bank account in Egypt in the husband’s name in the sum of $600;
•	an amount of $40,000 in respect of shares in Business F in Egypt.  The figure of $40,000 is an agreed figure. 
These amounts together total $53,101.  
168.	The parties’ former matrimonial home has now been sold.  After payment of selling expenses, rate adjustments, legal costs, and payment to each of the parties of a sum of $30,000, a total of $60,000, an amount of $488,179.71 was placed in a controlled monies account.
169.	On settlement, there was paid to the Commonwealth Bank a total amount of $447,778.82.  This amount requires dissection.  The amount actually required to discharge the mortgage secured over the property was $400,564.55.  The balance of $47,214.27 was an amount required to satisfy an overdraft maintained by the husband alone, and secured over the property.  It was of course necessary for this amount to be paid for the bank to release its security.  The relevance of this figure will emerge later in these reasons for judgment.  
170.	In addition, the deposit paid to the agent was made available to the vendors less commission and selling expenses, plus a minor adjustment for interest in the amount of $92,188.74.  
171.	Thus, the total amount held as a result of the sale of the property is $580,368.45.  
172.	Thus, the assets are the items already mentioned, totalling a sum of $53,101, and the amount held following the sale at $580,368.45, for a total of $633,469.45.  
173.	There are a number of matters that the parties concede should be added back to the pool of assets.  These are:-
•	The wife’s fees paid to Malouf Solicitors of $40,000;
•	The wife’s fees paid to counsel of $10,000;
•	The wife’s fees paid to solicitor and counsel of $12,000;
•	The husband’s fees paid to solicitor of $1,297.
These amounts together total $63,297.
174.	I propose to add back the sum of $60,000, which was dispersed to the parties from the proceeds of sale of the former matrimonial home.  
175.	As I have already set out, when the bank’s security was discharged, the bank required payment of the overdraft that the husband maintained.  
176.	The husband has contended that the overdraft should be included as a liability of the parties.  At the time of final submissions, the husband claimed the overdraft in the amount of $50,000, which is indeed similar to the actual amount paid to the bank of $47,214.27.  The wife asserted that the overdraft should be included in an amount of $11,000, which was the amount of an overdraft at the date of separation.  
177.	As I understand it, the business overdraft of the husband, as asserted by him, is in respect of an entirely new business constituted, as I understand his evidence, by himself as a sole trader.  The business overdraft that existed at the date of separation of the parties related to an entirely different trading entity.  
178.	Notwithstanding the apparent concession of the wife that the overdraft was to be included at the lesser sum of $11,000, I am satisfied that it would be an injustice to the wife if the overdraft were to be included in any sum as a liability of the parties.  Accordingly, I am of the view that it is appropriate that I should add back into the pool of assets, the amount of the overdraft being $47,214.27.
179.	When the overdraft is added to the amount dispersed to the parties from the proceeds of sale, the figure of $107,214.27 is produced.  
180.	There are then a significant number of matters that need be examined as to whether or not they should be included in the pool of assets. 
181.	It is clear from the report of Mr P, which was not challenged, that Business G Pty Ltd had no value.  This company had been placed into liquidation.
182.	It is clear from the history of the matter that the husband has simply continued to trade as Business G.  Mr Jackson, on behalf of the wife, puts that I should include in the list or pool of assets an amount of $114,296 as the value of that business as presently conducted.  This amount is made up by adding together figures for:-
1.	Professional Business Assets which had formerly been in the possession and control of Business G Pty Ltd to which a figure of $47,525 has been attached.
2.	An inventory of items formerly owned by that company for a figure of $62,895.
3.	A motor vehicle formerly owned by the company $3,876.
Totalling $114,296.
183.	In the report of Mr P dated 3 May 2011, which became Court’s Exhibit 1 in the proceedings, Mr P indicates that there were three trading entities associated with the husband as set out in paragraph 2.1(e) of his report.  At Annexure A of that report he commenced to deal with the value of the enterprise Mr Simpson trading as Business G for the period up to May 2006.  Mr P’s valuation of the enterprise based on future maintainable earnings were losses. Therefore, Mr P employed an alternative valuation method, that of net tangible asset backing.  On that basis, he found that the assets of the business or enterprise held by the husband was zero.
184.	In Annexure C, Mr P dealt with Mr AB Simpson trading as Business G as at December 2010.  Again, he found that the future earnings of the business did not support any value employing a future maintainable earnings method of valuation.  He then valued the entity using a net tangible asset backing basis and found that as at December 2010 the net assets of the business were zero.
185.	Mr P then dealt with the company Business G Pty Ltd.  In Annexure B, he dealt with the value of that company firstly at May 2006.  He found at paragraph 6.9 of Annexure B that the appropriate valuation methodology was a net tangible asset backing basis.  Working on that basis he found that the company had a value as at 31 May 2006 of $29,496.  He indicated that the balance sheet of 30 June 2006 showed a loan of $66,136.31 to the husband.  This was an asset for the company and a liability of the husband.  
186.	In Annexure D, Mr P dealt with the value of Business G Pty Ltd as at June 2010.  At paragraph 9.1 Mr P identified loans owed by the husband and the wife to the company.  These amounts were asserted to be, as owed by the husband $364,831.75, and as owed by the wife $20,228.39. 
187.	It may be a matter for the liquidator of the company to take whatever steps he would consider appropriate to endeavour to deal with those loans.  However, at the present moment it would appear that there will be no such action taken.  
188.	Ultimately, it is agreed between the parties that the company has no value.  
189.	I have already made reference to the submission by Mr Jackson that amounts, which he has identified, should be added together and included in the pool of assets.  I am not comfortably satisfied that this is a method available to me.  Having said that, I confess that it has some immediate attraction.  However, it is not, in my view, open to me to extract, and to a lesser degree extrapolate, figures to establish the value of an entity such as is asserted by Mr Jackson.  Accordingly, I do not propose to include the figure of $114,296 in the pool of assets.  
190.	I note that, whilst there was some evidence in respect of the contents of the former matrimonial home, neither now seeks that I include these in the pool.  There is no reference to them remaining in the balance sheet as made available to me at the time of submissions.  
191.	The pool of assets thus available for distribution is:-
•	The amounts held from the proceeds of sale $580,368.45;
•	The wife’s car, parties’ bank accounts and shares $53,101;
•	The add backs of legal fees paid $63,297;
•	The amount dispersed from sale plus the overdraft $107,214.27.
Totalling $803,980.72.
192.	I have not included the Youth Saver Account for B in the amount of some $5,450.  Further, I will not include the Youth Saver Account for J.  I am of the view that those accounts are for the children’s benefit and should not be included.
The liabilities
193.	The next item of concern is the amount alleged to be owed to Mr C.  I found the evidence of the husband and Mr C to be somewhat less than convincing.  Having said that, I am satisfied that there was an arrangement between the husband and Mr C for Mr C to advance monies to the husband.  I am satisfied that the wife was aware of this arrangement.  
194.	I am satisfied, having regard to the wife’s concession (referred to in paragraph 70 above) that the amount outstanding to Mr C is $78,000.  As I have indicated, I do not accept the evidence of the husband and Mr C and rely on the wife’s concession to arrive at the amount of $78,000.  However, I am satisfied the monies were applied to the acquisition of property or the improvement of property for the benefit of the parties.  
195.	On the material that is available to me, I am satisfied that initially there was no interest component in respect of the advance.  In other words, there was no agreement as to interest being payable on the whole or any part of the monies advanced, when they were first made available to the husband.
196.	I am satisfied that the assertion that interest was payable on the amount advanced arose at a much later point in time.  I am thus satisfied that any agreement or arrangement for interest was made at a time later than the date of the advance, and was made without the knowledge of the wife.  I am satisfied that the issue of interest was raised so as to increase the apparent liability of the husband and/or the parties to Mr C.  I am further satisfied that this was done so as to dilute the pool of assets available for distribution.  
197.	I am of the view that any interest payable to Mr C is the sole responsibility of the husband.  It is accordingly unnecessary for me to determine as part of this Judgment whether the interest is to be calculated as compound or simple interest.  
198.	I propose to order that the sum of $78,000 is to be paid to Mr C from the assets of the parties, with the husband indemnifying the wife against any further claim in respect of any alleged balance by Mr C.  
199.	I do not propose to treat any monies that may have been advanced by Mr C to the husband’s business or businesses as a liability of the parties.  
The issue of income tax
200.	The issue of income tax is one of considerable importance in this matter.  Clearly, as previously set out, the husband has accrued a debt to the ATO for income tax, GST, Pay As You Go (PAYG) tax together with a general interest component and penalties in respect of each of the outstanding amounts of tax.  There can be no question that this tax is outstanding.
201.	At the conclusion of the hearing, it was clearly the situation that the amounts outstanding did not include any pre-separation tax liabilities.
202.	The total amount owing at the conclusion of the hearing to the ATO was the sum of $238,317.90.  However, it appears to me that this amount must be dissected for a proper understanding of the situation.  Unpaid income tax of the husband was $105,347.16.  Penalties upon that sum were in the amount of $1,650.  The general interest component on the sum outstanding for income tax was $109,282.59.  These three figures together total $216,279.75.  
203.	There was outstanding for PAYG tax the sum of $7,747.58.  That is an amount that should have been deducted and remitted.  There was outstanding for GST the sum of $10,919.  This amount ought to have been collected and remitted.    
204.	Penalties in respect of PAYG tax and GST were $1,870.  The general interest component on both PAYG tax and GST was $1,501.57.  Thus, the total amount owing in respect of PAYG tax and GST with penalties and interest was $22,038.15. 
205.	It is the husband’s contention that the entirety of these amounts, that is all primary tax, penalties and interest, which together total the aforementioned sum of $238,317.90 (see paragraph 201), should be taken into account as a debt or debts of the parties.  Payment, he submits, should be made from the funds released by the sale of the former matrimonial home.
206.	The wife contends that there should be an apportionment of the amount as between herself and the husband. 
207.	She concedes that the amount for income tax is $105,347.16.  It is appropriate, her Counsel says, that the wife should be liable for 25 per cent of that amount (which would produce a figure of $26,336.79).  He then contends that the balance of income tax, together with the amount outstanding for PAYG tax and GST, together with all interest and penalties upon those amounts, should be borne by the husband.  The wife in her evidence made concessions that appeared to be greater than the amount eventually conceded by her Counsel in his submissions.  I understood her, in her evidence, to concede that she should be liable for one half of the amount owing for income tax.  Her concession appeared to be based on the fact that the husband had paid monies to her or on her behalf and consequently was not making provision to meet his taxation liabilities as they fell due.  
208.	It seems to me therefore that I should include in the pool, as a liability of both parties, the amount owing to the ATO for income tax an amount for $105,347.16.
209.	It is clearly the husband’s case that the amounts he paid to the wife following their separation were such that they rendered him unable to pay, as they fell due, PAYG tax and GST.  He has, however, paid some amounts of money.  Before the proceedings concluded, he paid all monies required to discharge any liability to the ATO for any amount of any kind whatsoever accrued to the date of the parties’ separation.  
210.	I am satisfied, as I have found in these reasons for Judgment, that the husband did make significant payments to the wife.  However, I am not satisfied that the amounts he paid were such that it was a matter of impossibility for him to meet at least a significant proportion of his proper taxation liabilities.  I am satisfied it was his choice to follow the course that he did.  I am satisfied that he deliberately set out to maximise liabilities and then to visit them to the greatest extent possible upon the wife.    
211.	I turn then to the amounts outstanding for PAYG tax and GST.  
212.	There remains outstanding for GST the sum of $10,919.  I am not persuaded that the entirety of this amount should be included or taken into account as a liability of the parties.  The amount for GST was an amount that was never the husband’s money, but rather monies collected and held for the benefit of the Commonwealth.  These were monies that ought to have been paid periodically and as required.  However, again, there is no doubt that the wife received some benefit from the fact that the husband did not pay these monies, but diverted them and used them, at least in part, for the benefit of her and children.  I have come to the conclusion that an amount ought be taken into account as a debt of the parties, and I have determined that 25 per cent of the full amount would be in all the circumstances a proper one.  The percentage I have arrived at of the amount outstanding is one that reflects the benefit received by the wife from monies that would and should otherwise have been paid to the Commissioner of Taxation.  The amount to be included is $2,729.75 (that is 25 per cent of the amount outstanding for GST).    
213.	Similarly, with PAYG tax, there is an outstanding amount of $7,747.58.  This is an amount required by law to be deducted and remitted.  The husband chose not to do so.  Again, however, I have the evidence before me that at least some of these monies provided a benefit to the wife and children.  Therefore, again, I have determined that I should include 25 per cent of the amount payable as a liability of the parties, that being an amount of $1,936.90.  
214.	I then turn to the question of interest and penalties.  There is an amount for penalties and an amount for general interest component in respect of each of the three classifications of unpaid monies, that is to say PAYG tax, GST and income tax.  I will deal with PAYG tax and GST first and together.  I have determined in these reasons for Judgment that it is appropriate that the parties share equally an amount equivalent to 25 per cent of each of the amounts outstanding for PAYG tax and GST.  I am satisfied that I should treat the penalties and general interest component in respect of each of these in the same fashion, that is by allowing 25 per cent of the general interest component and penalties in respect of each of the PAYG tax and GST as a liability of the parties.  Therefore, 25 per cent of the penalties and general interest component ($3,371.57) thereon is $842.89.  
215.	I am satisfied that the general interest component on the unpaid income tax sum can be adjusted to an extent as between husband and wife.  By that, I mean that the wife, to my mind, must bear some burden for the fact that she enjoyed the benefit of monies from the husband that clearly ought to have been applied for the payment of his tax liabilities.  I am satisfied that in the case of the general interest component upon income tax an appropriate percentage of the total, to be treated as a liability of the parties, is 35 per cent.  I am of the view that the same percentage should be applied to the penalties imposed in respect of the income tax of the husband.  
216.	The figures then are these:-
•	Unpaid income tax $105,347.16. This amount will be included as a liability.
•	The general interest component on income tax is an amount of $109,282.59.  Thirty-five per cent of that figure is $38,248.90.  I will include this amount as a liability.
•	The penalties on income tax amount to $1,650.  Thirty-five per cent produces a figure of $577.50.  
•	There was outstanding for PAYG and GST together with penalties and interest a total amount of $22,038.15.  Twenty-five per cent of that figure is a sum of $5,509.54.  
Together these figures amount to $149,683.10.  
217.	Thus, the amount to be included in the pool of assets as a liability representing income tax, PAYG tax, GST, interest and penalties thereon, will be $149,683.06.  
218.	The balance of monies required to satisfy the husband’s indebtedness to the ATO, will be paid by him from the amount that I determine to be his proportional entitlement in these reasons for Judgment.
219.	Thus, the total amount of liabilities of the parties are:-
•	Payment to Mr C of $78,000;
•	Amount payable to the Australia Taxation Office of $149,683.10.
These amounts produce a subtotal of $227,683.10.  Then when this amount representing the parties’ liabilities are taken from the parties’ assets of $803,980.72, a nett figure of $576,297.62 is produced.  
Superannuation
220.	I turn then to the second pool of assets.  I am satisfied that to the credit of the Simpson Superannution Fund, having cash assets only, is some $62,654.90 together with an amount of $5,038 from Business F shares.  Thus a total of $67,692.90 is produced.  The fund is a self-managed superannuation fund conducted and operated for the benefit of the parties.  
221.	The wife, I am satisfied, has minimal separate superannuation in an amount of $2,450.  It would seem to me, therefore, that I can add one figure to the other to produce the value of superannuation available to the parties.  The figure produced is $70,142.90.  
222.	I am thus satisfied that the value of the superannuation entitlements and benefits to be taken into account in this matter is that figure of $70,142.90.  
Contributions
223.	The parties marriage subsisted from January 1990 to April 2006, thus a marriage of just over sixteen years duration.  During that time, as previously set out, three children were born to the marriage.  Those children resided with the parties during cohabitation and following separation, all three children lived with the mother.  As from about November 2009, the two elder children, J and B, went to live with their father, where they have remained.  The parties’ youngest child, D, remained with her mother.  
224.	I am satisfied that as at the date of the marriage, the wife had acquired a one half interest in a property at Suburb Z with her father.  That property was rented and monies obtained by way of rent together with monies from the wife and her father were used to pay the mortgage and outgoings in respect of the property.
225.	It does not appear to be seriously challenged by the husband that the wife paid for expenses connected to and arising from the parties’ marriage and honeymoon.
226.	I am further satisfied that the parties moved into the Suburb Z property where they lived until February 1993, when another property at Suburb Y was purchased.
227.	I am satisfied that the wife financially assisted the husband while he undertook study and obtained qualifications to enable him to be registered in his profession in New South Wales.  I am satisfied that following the parties’ marriage, the wife continued to work until 1995.  
228.	In 1992, I am satisfied the husband obtained the necessary qualifications to conduct his profession in Australia and between 1992 and 1994 he did so for various employers.  In 1994, he went into private business.
229.	From the husband’s point of view, I am satisfied that it was a period of two years before he was entitled to conduct his profession in Australia.  I am satisfied that the wife provided support for him during this period.  
230.	In 1993 and 1994, the husband undertook employment for a number of employers.  In 1994, he established a professional business at Suburb Z with other professionals.  In that same year, he commenced work at Business CC.  The husband asserts that in 1996 he gained specialised government accreditation and established professional businesses at Suburb EE and Suburb V with other professionals.  He asserts that in 1997, he acquired property in Egypt.
231.	I am satisfied that in 1993, the wife sold her half share in the Suburb ZZ property to her father and received an amount of $56,000.  I am further satisfied that this amount was contributed to the purchase of LL Street, Suburb Y.  The total cost of that acquisition was approximately $214,600 including stamp duty, legal costs and disbursements.  I am satisfied that the wife contributed her $56,000 and $164,000 was borrowed by way of mortgage.  I am satisfied that in mid 1994, that loan was refinanced to an increased amount of $198,500. 
232.	In December 1994, the wife received a redundancy payment in the sum of $21,841.55.  I am satisfied that the wife applied at least some of these monies, together with what she asserts to be savings, in reduction of the then existing mortgage.  It is her assertion that the mortgage was reduced to an amount of $135,985.41, which I accept was paid out on 7 October 1997 in full.  
233.	I am satisfied that for a period of time between 1997 and 1998, the parties together conducted a business, which was subsequently closed, and incurred a loss of $3,000. 
234.	In 1999, the husband sold his interest in professional businesses at Suburb EE and Suburb V and received approximately $60,000.  In the same year, the husband sold his interest in the Z professional business and received approximately $241,000.  
235.	Thereafter, on 28 June 1999, the parties purchased R Street, Suburb A for $500,000.  A mortgage was secured over both that property and the Suburb Y property for the entire amount of the purchase price.  
236.	It is the husband’s assertion that in that same year, he received an inheritance.  He assets it was in the sum of $125,000.  He later asserts the amount received was $70,000.  It is the husband’s case that he applied such funds to purchase shares in Business F in Egypt.  
237.	In September 2000, the parties sold the Suburb Y property and applied $368,000 from that sale to reduce the mortgage, which accordingly was then for an amount of $132,000.  
238.	In the year 2000, the parties acquired a property at Suburb T and thereafter monies were borrowed from a Mr C.  
239.	I am satisfied that from the date of separation (15 April 2006) to November 2009, the wife and three children remained residing in the Suburb A home.  I am satisfied that between April and October 2008, the husband did not pay child support.  
240.	Following the parties’ separation in April 2006, the husband continued to operate his businesses without any involvement of the wife.  On 1 September 2010, the entity Business G Pty Ltd ceased to trade.  On 4 February 2011, Orders were made in the Supreme Court of New South Wales for the winding up of that business.  
241.	The husband, despite Orders made by this Court, did not pay spousal maintenance and after a period, ceased to pay child support.  It must be remembered of course that as of from 1 November 2009, the two elder children commenced living with their father.  
242.	I am satisfied that I can identify the wife’s contributions with some certainty.  She contributed at least the bulk of her proceeds of sale from the Suburb Z property for the benefit of the family.  She contributed her redundancy for the benefit of the family.  Whilst her husband was not qualified to conduct his profession in Australia, I am satisfied that she worked to maintain the family unit. 
243.	I am satisfied that the husband, upon attaining his qualifications and becoming entitled to conduct his profession, at least until the date of separation, worked for long hours outside the home to foster and promote his professional and business activities.  I am satisfied that during this time, the primary care of the children fell solely upon the wife.  The wife was also the homemaker for the family unit.
244.	So far as the husband is concerned, I am of the view that he has conducted his business affairs with a scant regard for the wife, or his responsibilities and obligations as a taxpayer.  He has been involved in the professional businesses that he has commenced and subsequently sold.  Doing the best I can, I have not been able to adequately explain where monies derived from the sales of individual businesses were applied.  However, it is clear that other than in the very early stages of the marriage, whilst he was still obtaining qualifications, he has been by far the primary income earner within the family.  
245.	Whilst the husband earned significant amounts of money, drove an expensive motor vehicle and, I am satisfied, generally lived in a position of personal comfort both before and after separation, I am satisfied that there was a deliberate attempt on his part to minimise the wife’s entitlement.  I am satisfied that it would very much suit the husband to see all of the monies available for distribution go to creditors rather than have the wife receive any portion thereof.
246.	I am satisfied the wife had occupancy of the former matrimonial home after separation with initially all three of the parties’ children until November 2009.  At that point, as I have already said, the two elder children commenced living with their father, and the wife and the youngest child continued to reside in the home up until its sale.
247.	I take into account that the wife therefore remained in possession of the former matrimonial home following separation, with the husband and later the two elder children living elsewhere at his expense.  
248.	Balancing these matters as best I can and recognising they are of a very different nature and occurred at very different points of time in the parties’ marriage, I am satisfied that the contributions of the parties should be seen as favouring the husband.  His contribution, in my view, requires recognition.  I am satisfied that his contributions outweigh those of the wife to a discernable degree.  I am satisfied that the appropriate manner of dealing with contributions is to recognise that the contributions were made 52.75 per cent by the husband and 47.25 per cent by the wife.
249.	I then turn to the section 75(2) factors.
Section 75(2) Factors
Subparagraph (a) The age and state of health of each of the parties
250.	The parties are aged respectively - the husband 48 years, and the wife 47 years.  I am not given information, and certainly there is no evidence before me, as to either party suffering any long term health problems.  Certainly, the wife was unable to continue to give evidence during the course of the proceedings, but I have dealt with that aspect earlier in these reasons for Judgment.  As I say, I am not satisfied that that which occurred with the wife’s non-attendance gives rise to any proper concern as to her ongoing state of health.

Subparagraph (b) The income, property and financial resources of the parties
251.	I am satisfied that there is an enormous difference between the capacity of the husband to earn income and the wife’s capacity to do so.  I am not satisfied that I have been ever fully informed of the husband’s income and expenditure position, and I am satisfied, as I have already said, that he has done everything he can to obscure the true situation.  Notwithstanding that, I am satisfied that he has specialised knowledge that enables him to earn a very considerable amount of money by way of conducting his profession.
252.	The wife has some skills.  However, I am satisfied that even if these were engaged to the fullest possible extent, her capacity to earn income would still result in an income to her that was only a small fraction of the amount that the husband can, and I have no doubt will in future, earn.  Even if the husband is not at present earning the full amount that it is possible for him to earn, I am satisfied that his capacity to earn income puts him in the higher range of income earners.  This factor requires a significant adjustment on behalf of the wife.  
Subparagraph (c) Care or control of a child of the marriage
253.	The husband has control of two children; the wife of one, the youngest.  I am satisfied that the husband, because of his income, will find it easier to support the older children, and for a lesser period of time, than will be the lot of the wife.  
254.	However, I am satisfied, as I have already found, that he has the requirement to support two children as against the wife’s requirement to support one child, on a lesser income but for a greater period of time.
Subparagraph (e) Responsibility to support any other person
255.	Neither party on the evidence before me has the responsibility to support any other person. 
256.	I note that the husband’s mother appears to live with him.  However, no evidence has been placed before me to indicate the financial relationship between them and whether or not he has any responsibility to support her.  
Subparagraph (g) The standard of living of the parties
257.	The standard of living of the parties is in my mind relevant.  I am satisfied that the husband has been able to live at a reasonably high standard, living in quite expensive rental accommodation and driving high range motor vehicles.  The wife, whilst remaining in the former matrimonial home, has enjoyed a far lesser standard.  
Subparagraph (k) The duration of the marriage and extent it has affected the earning capacity of the party whose maintenance is under consideration
258.	Under this subparagraph, if the wife had not supported the husband during the years he was obtaining qualifications to conduct his profession in Australia, he would not have been able to enjoy the level of income as soon as he did.  In other words, had the wife not been prepared to support the family unit as it then was in the early stages of their marriage, I am satisfied the husband would have taken longer to secure the professional qualifications he needed to conduct his profession.  
259.	The wife, I am satisfied, has been out of the workforce for some time, other than casual part time work.
260.	I take into account the fact that the husband when in a position whereby he was required to pay child support, did not do so, and I take into account the fact that he also ceased paying maintenance for the wife in the face of a Court Order.
Subparagraph (o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
261.	I am satisfied, under this paragraph, that I may take into account the fact that the husband has been less than truthful with me in respect of his financial affairs, his assets, his liabilities and his income.  I am satisfied that there is a significant element on the husband’s part of accruing debt so as to establish that such debts could be relied upon to diminish the wife’s entitlement in this matter.  I am satisfied that the husband has acted in a deliberate and calculated manner so as to deceive the wife and the Court.  
262.	I am satisfied that I have never been able to fully determine the extent of the husband’s commitments.  I am satisfied that the husband when it has suited him has treated various companies that he has operated as his own entities, and when it has also suited him, has distanced himself from them.  
263.	I am satisfied that in accordance with decisions such as Weir & Weir and Black & Kellner that, once I have been satisfied that a party has been less than truthful with me (in this case the husband), I am not bound to be unnecessarily cautious in dealing with his evidence and making findings that may significantly favour the other party.  
264.	In all the circumstances of the case, I am satisfied that a significant adjustment is required in the wife’s favour in respect of these matters.
265.	The wife has also put before me that the husband has not paid spousal maintenance and child support as required of him, in respect of the spousal maintenance by Court Order and in respect of the child support by an administrative assessment.  It is the wife’s case that the amount she calculates to be unpaid and outstanding in respect of the spousal maintenance is some $30,660.  The wife asserts that this amount is a calculation based on an Order for spousal maintenance she had obtained earlier in the proceedings.  
266.	So far as child support is concerned, she claims an amount of $17,500.  There was in evidence before me, as Exhibit E, of a certificate establishing that as at the 13 September 2011 there was an amount of $17,238.33 unpaid in respect of registered maintenance liabilities.  
267.	It is put to me that I should make a specific adjustment or allowance arriving at a result for these two amounts.  Indeed, as I understood the submissions of Counsel for the wife, he sought that these amounts be paid as actual amounts from the available assets of the parties.  
268.	The husband it would appear disregarded the obligation imposed upon him to pay spousal maintenance when it suited him.  He had given an assurance that he would meet child support assessments, but did not do so.
269.	I have come to the conclusion that, so far as the spousal maintenance is concerned, I should have regard to the fact that it is unpaid, but take it into account when arriving at a percentage variation.  
270.	I acknowledge that the husband appears to be significantly in arrears in respect of child support.  However, I am satisfied that there are proceedings that can, and indeed should be taken, via the Child Support Agency to recover or enforce payment of those amounts outstanding.  Accordingly, I am not persuaded that I should make any significant adjustment in respect of the child support aspect.  
271.	When these factors are all taken into account globally, as I believe I am required to do, having reference to decisions such as Tomasetti & Tomasetti, I have come to the conclusion that an adjustment of 13.75 per cent is appropriate.  That means that the wife will receive 61 per cent of the nett assets available for distribution, and the husband will receive 39 per cent thereof.
How is this to be achieved?
The non-superannuation pool
272.	The figures appear to be these.  I have determined that the wife is entitled to 61 per cent of the nett pool of assets of $576,297.62.  Thus the wife’s percentage based entitlement is $351,541.55.  
273.	I have therefore determined that the husband is entitled to 39 per cent of the nett pool of assets, which is $224,756.07.  The husband already has shares in the Business F in Egypt at $40,000, an amount of $600 in a bank account in Egypt, legal fees paid at $1,297, payment of the overdraft at $47,214.27 and distribution from the proceeds of sale $30,000, totalling $119,111.27.  The husband is thus entitled to an amount of $105,644.80.  It must be remembered, however, that this amount is subject to payment of further sums to the Commissioner for Taxation.  
274.	The wife’s entitlement is $351,541.55 based on contributions.  She has the distribution from the proceeds of sale at $30,000, legal fees paid at $62,000, a car at $9,000 and her bank account funds at $3,501 for a total $104,501.  When taken from her percentage based entitlement of $351,541.55, her entitlement is thus $247,040.55.  
275.	Returning to the husband’s entitlement, which I have now determined to be $105,644.80, there is to be deducted from that amount and paid to the Commissioner for Taxation the following sums:-
•	For 65 per cent of the general interest component on income tax - $71,033.68.
•	For 65 per cent of the penalties on income tax - $1,072.50.
•	For 75 per cent of Goods and Services Tax, PAYG tax and penalties and general interest component thereon - $16,528.61.
Totalling $88,634.79.  When taken from the earlier amount arrived at of
$105,644.80, a balance of $17,010.01 is achieved.  
276.	Therefore, the orders that I will make will require that the sum of $580,368.45 held representing the total balance of the proceeds of the sale of the former matrimonial home, including the balance of monies held by the agent, will be dispersed as follows:-
•	To Mr C an amount of $78,000;
•	To the Australian Taxation Office an amount of $238,317.85;
•	To the husband an amount of $17,010; and
•	To the wife an amount of $247,040.60. 
The wife’s claim of spousal maintenance
277.	In submissions, Counsel for the wife put before me that the wife should receive a lump sum payment for spousal maintenance in the amount of a rounded $100,000.  This is of course not to be confused with the adjustment sought for non-payment of an earlier Order for spousal maintenance, to which I have already made reference in these reasons for judgment.  
278.	The calculations to arrive at the figure of $100,246 is to allow $420 per week for 280.8 (or for a period of 5.4 years in total), a figure thus produced of $117,936.  A fifteen per cent discount was allowed for vicissitudes, being an amount of $17,690.40.  Thus, the amount claimed is rounded to a figure of $100,246.  Not a great deal of time was given to submissions in respect of this claim.  However, I am of the view that I am compelled to deal with it.  
279.	In Clauson and Clauson, their Honours said this at 82-907:-
Where spousal maintenance is sought in addition to a property order it becomes, in effect, the fourth step in the process. It is only to be exercised after  the three step process under s. 79 has been completed and it is not to be confused with the s. 75(2) component in that latter exercise. The reason why it must be exercised after the s. 79 exercise is because that latter exercise establishes the background against which s. 74 must operate, that is, the financial circumstances of the parties.   
The result of the s. 79 order may be such that the applicant for maintenance can no longer be described as being ''unable to support himself or herself adequately''  because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party's capacity to meet any order.   
280.	Their Honours went on to say that “it is necessary to determine the issue of periodic maintenance first because this type of lump sum maintenance is the capitalization of that conclusion.”  Their Honours were satisfied that the Court must be satisfied of the components necessary to justify a periodic maintenance order, namely need and capacity, and determine the amount in question, and in some cases, the duration of that order.
281.	As I have said here, the claim is based on a need for 5.4 years.  No evidence was led as to why this is the appropriate period for any sum of maintenance to be paid by the husband to the wife.  Rather, I suspect in this present case, the amount of $100,000 was thought to be an appropriate amount and the calculations worked backwards to achieve this result.  
282.	It is trite law to say that in dealing with periodic maintenance there is a two-step process.  Firstly, the applicant must establish a need for support and then if that be done, an examination is made of the other party’s capacity to pay or meet any order.  
283.	In this case, the wife’s most recent statement of financial circumstances shows an excess of income over expenditure for her fixed expenses.  I am also entitled to, in this present case, take into account the fact that the wife will receive a very significant proportion of the parties’ assets available for distribution pursuant to the orders I make for property.  
284.	I am thus satisfied that the wife has not made out any need for an order for periodic maintenance.  Accordingly, I am of the view that it is not necessary for me to proceed to the next step and deal with the capacity of the husband to pay an amount for periodic maintenance.  
285.	Having reached that point, it is then unnecessary, and indeed not possible, for me to capitalise any lump sum amount based on a periodic order.  Accordingly, I propose to dismiss the wife’s application for maintenance, be it periodic or lump sum.   
The superannuation pool
286.	I have determined that the superannuation pool has a value of $70,142.90.  The material furnished to me in regard to the superannuation fund has been scanty and I accept that it is a self-managed superannuation fund.  
287.	I am of the view that the wife should be entitled to one half of the superannuation entitlements of the parties.  I have produced a figure of $70,142.90.  One half of that amount would be $35,071.45.  The wife already has $2,450 as her separate entitlement.  Therefore, the adjustment required to equalise the value of the parties’ superannuation is $32,621.45.  
288.	I am aware that it would be usually considered appropriate to make a splitting order.  However, in this case, I am sure that the parties wish to sever their relationship for all time.  I am satisfied that the wife has no interest in remaining a member of a superannuation fund managed by the husband, nor am I satisfied that it would be best for her to remain in such a position.  
289.	Accordingly, what I propose to do is order that the husband pay to the wife an amount equivalent to her entitlement previously determined, less a small discount for immediate payment.  I would thus round the amount to be paid by the husband to the wife to the sum of $30,000.  I will order that this amount be paid within 4 months of the date of the orders I make.  In the event that payment is not made, the matter can be brought back before me and I will then make a splitting order, or some other appropriate order, to enable the wife to receive the benefit of my orders.  
290.	I then turn to the justice and equity of my orders.
Just and Equitable
291.	Despite the bitterness of the dispute and the highly involved nature of the proceedings, the amount available to the parties for distribution was ultimately quite small.  The result that I have set out above leaves the wife in a very much greater position than the husband, so far as the assets of the parties are concerned.  The husband, however, has the advantage that his income tax liability to the ATO is extinguished and I have no doubt that his capacity to earn significant income will continue, if not increase, into the immediate and medium term future.  The wife has no like income earning capacity.  Her income will always be significantly less than the husband’s.  The parties each have the care of children or a child of the marriage respectively.
292.	Further, the husband has been relieved of payment of any spousal maintenance following my reasons for Judgment.  To that end, I propose to discharge any existing Order for spousal maintenance in its entirety so there can be no suggestion of there being any arrears that the wife may seek to enforce against the husband in the future.  
293.	I am satisfied that the provision made for each of the parties pursuant to the orders that will flow from these reasons for Judgment are in all the circumstances just and proper.  
Orders
294.	The orders that I make therefore are as follows:-
(1)	That the parties and each of them do all things and sign all documents necessary to request and require the holder of the controlled monies account into which all monies arising from the sale of the parties’ former matrimonial home situated at and known as R Street, Suburb A have been paid to deal with such sums as follows:-
(a)	Payment to Mr C of $78,000;
(b)	Payment to the Australian Taxation Office of $238,317.85;
(c)	Payment to the husband of $17,010; and 
(d)	Payment to the wife of $247,040.60.
(2)	That the husband indemnify and keep indemnified the wife in respect of any claim that may be in the future made by Mr C arising out of any alleged advance or loan made to the parties, or the husband solely.
(3)	That the husband within four (4) months of this date pay to the wife the sum of $30,000.  Upon payment of such sum the wife shall sign all documents and do all things necessary to resign as either a director/trustee or beneficiary of the Simpson Superannuation Fund.
(4)	That in the event that the said sum in Order 3 above is not paid within the time specified, then the matter may be relisted by the wife to seek such further orders, including a splitting order, as may then be appropriate.
(5)	That subject to the foregoing, I declare each party to be the sole and absolute owner of all property, monies held on investment, bank accounts, motor vehicles, personalty and chattels, and superannuation entitlements in the possession and control of that party.  
(6)	That I discharge any existing Order for spousal maintenance in its entirety.
(7)	That I dismiss the wife’s application for spousal maintenance, be it periodic or lump sum.  
(8)	That I dismiss all outstanding applications and cross-applications.
(9)	That I remove all issues from the pending cases list.
(10)	That all material produced on subpoena be returned not before fifty-six (56) days from the date of these Orders.
I certify that the preceding two hundred and ninety-four (294) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 13 June 2012.

Legal Associate:  	

Date:  			13 June 2012