Discussion on Mathematical Anxiety!

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The principles are well established by authorities (in the marriage of Lee Steere (1985) FLC 91-626; in the marriage of Ferraro (1993) FLC 92-335; in the marriage of Clauson (1995) FLC 92-595 and involves consideration of the following factors where superannuation is not a relevant factor:What were the assets, liabilities, and financial resources of the parties and values at the time of the hearing;What were the financial and non-financial contributions made directly or indirectly by or on behalf of each party to the acquisition, conservation, or improvement of the property of the parties?

Steps four (4), five (5) and six (6) are often inter-connected considerations and are usually considered as one step loosely described as the “section 75 (2) factors”.

It is not possible to chart its metes and bounds.”In terms of what matters might be taken into account in determining whether it is “just and equitable” to make orders altering existing interest in the property, in Bevan, Bryant CJ said in paragraph 84 as follows:  “Just as the expression ‘just and equitable’ does not admit of exhaustive definition it is not possible to catalog the ‘range of potentially competing considerations’ that may be taken into account when determining whether if it is just and equitable to make an order altering property interests.However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in section 79 (4) should be ignored in coming to that decision.

Secured liabilities are easily determined and are taken into account when determining the net relationship assets.In Biltoft,65 the Full Court said: “Notwithstanding the general practice which has developed, the court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances.Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.”In Biltoft and later decided cases, it is also open to disregard only part of debt upon the above principles.

79 (Af Petersens (supra)).”Critical AssessmentCritical to the assessment of the Balance Sheet (the net relationship assets) is a consideration of the argument concerning add-backs.As a consequence of the decision in Stanford, the practice of “adding-back” notional assets into the pool at Step 1 had been eschewed but that does not mean add-backs are not able to be taken into account.The issue of add-backs was recently considered by the Full Court in Trevi & Trevi [2018] FamCAFC 173 where the Full Court held“In Stanford v Stanford, the High Court emphasized as fundamental that consideration of whether it is just and equitable to make a property settlement order begins by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.The essence of a claim for attacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements.

In Trevi, the Full Court usefully summarises from para 27 guidelines for the adding back of property available at trial where the dissipation of property or expenditure is other than on legal fees.The three clear categories“The Full Court held in Omacini and Omacini that attacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.However, the Full Court also made it clear that an attack does not necessarily occur whenever “a party has expended money realized from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”.

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