Acantha & Acantha [2025] FedCFamC1F 782 | Case summary

[3]

Bevan & Bevan [2013] FamCAFC 116

Acantha & Acantha [2025] FedCFamC1F 782 | Case summary | Zoe

[45]

These are proceedings between the Applicant wife, Ms Acantha ("the wife"), and the Respondent husband, Mr Acantha ("the husband"), for property adjustment under Part VIII of the Family Law Act 1975 (Cth) ("the Act") as well as for non-periodic child support departure orders under the Child Support (Assessment) Act 1989 (Cth). The final hearing concluded prior to the relevant commencement date of the Family Law Amendment Act 2024 (Cth).
The parties commenced cohabitation in late 1997 or early 1998 and they married in 1998. There is one child of the relationship, X ("the child"), who was born in 2011. The child presently lives with the wife. Final separation occurred in November 2021. In mid-2023, a divorce order came into effect, bringing an end to the parties' marriage.
The wife commenced proceedings on 29 June 2022 seeking orders relating to property and child support matters only. The husband filed a Response on 22 August 2022, in which he additionally sought orders in relation to the parenting arrangements for the child.
On 12 July 2024, the proceedings were transferred from the Federal Circuit and Family Court of Australia (Division 2) to this Court. On 19 April 2025, the matter was set down for final hearing for four days commencing on 12 May 2025.
To their credit, the parties reached agreement in relation to the parenting aspect of the dispute and final orders were made on 7 April 2025. The trial estimate was thereafter reduced from four days to two days plus.
The parties resolved the child support dispute such that on the morning of 14 May 2025, consent terms were provided to the court, which agreed arrangements were underpinned by a Binding Child Support Agreement (Exhibit 12). Those orders were made that day and provided that an agreed capital sum would be directed by the parties to a separate account for the purposes of meeting the child's future schooling costs. It was also agreed that the husband would otherwise pay child support as assessed from time to time.

[50]

The husband was born in 1966 and is currently 59 years old.
The wife was born in 1970 and is currently 54 years old.
The parties commenced cohabitation in December 1997/January 1998. The wife emigrated to Australia from the United Kingdom on a Fiancé Visa.
Each of the parties were in full time employment at the commencement of the relationship.
The parties married in 1998.
Between September 2002 and a date in 2007, the parties lived in an apartment owned by the husband's father.
In February 2007, the parties purchased B Street, Suburb C ("the Suburb C property"), in joint names. They borrowed the entirety of the funds necessary to purchase the property ($540,000) and were gifted $40,000 by the husband's father to meet the mortgage insurance fees, stamp duty and other costs.
In 2010, the husband's father loaned the parties $40,000 to assist with living expenses. While some repayments were made to this loan, the balance was forgiven following the birth of the child.
In early 2011, the child was born. At the time of the final hearing, he was 14 years old. The husband's time with the child after separation had gradually increased from daytime only to three nights per fortnight, with such progression included in interim orders made by consent on 18 May 2023. In accordance with the final orders agreed between the parties in April 2025, the child lives with the wife and spends three nights per fortnight with the husband and half of each school holiday period.
In 2011, the husband left employment in financial services and for a number of months, cared for the child, before working on a casual or contract basis. The husband studied horticulture from 2013.
In August 2013, the husband began his own business (as a sole trader).
That year, the parties borrowed $39,000 from the wife's parents to pay out the parties' credit card debt.
In April 2015, the parties refinanced the Suburb C property mortgage and borrowed an additional $100,000.
In 2015, the husband received $20,000 following the death of his brother (from his late brother's superannuation interests).
In April 2016, the parties borrowed $10,000 from the wife's parents to complete bathroom renovations at the Suburb C property.
In May 2017, the wife was made redundant from her employment and received a payment of $107,000. The wife did not resume paid work outside of the home from that date but did some work in the husband's business.
In November 2017, the husband received $500,000 from the sale of his parents' property at Suburb H, NSW.
In 2018, the child was diagnosed with ADHD.
In mid-2018, the husband's father died.
From 2018, the husband received distributions from the E Family Trust. This included, in September 2018, the distribution of $250,000.
In December 2018, the Suburb C property was severely damaged during a hailstorm. Following the damage to the home, the parties progressed an insurance claim, which process continued until July 2022 ("the insurance claim").
The husband was a beneficiary under his late father's estate. In February 2019, the husband received an amount of $1,125,000 (the husband's affidavit at [28]) from the estate.
From February 2020, the wife began study towards a masters degree.
In July 2020, the husband began study towards a vocational certificate.
In April 2021, the parties and the child moved into rental accommodation (the cost of which was met from the proceeds of the insurance claim).
On 28 November 2021, the parties separated.
In October 2022, the husband began to live with his current partner, Ms F.
In mid-2023, the parties divorced.

[85]

As is considered further below, the approach being promoted by the wife suffered from a number of challenges.
It has long been recognised that the assets of a trust may be treated as property for the purposes of s 79 proceedings in certain circumstances, including if a party has the capacity to obtain the benefit of that property by exercise of powers given to them in the trust. Commonly, that might involve a party being a beneficiary under a discretionary trust but also having rights and powers of appointor and guardian of the trust, enabling them to exercise control over the assets of the trust (see for example Harris & Harris [1991] FamCA 124; (1991) FLC 92-254).
The question of whether the property of the trust should be regarded as, in fact, the property of a party will depend upon the particular facts and circumstances of the case, including identifying the powers under the relevant trust deed, and who has the right to exercise those powers.
The husband is an eligible object within a class of beneficiaries under the discretionary trust. He has a right to due consideration and due administration of the trust (Kennon & Spry (2008) 238 CLR 366 ("Kennon & Spry")), and those rights were identified in that decision as "property" for the purposes of the Act (Kennon & Spry at [126], Gummow & Hayne JJ).
However, the valuation of such a right is difficult "when the beneficiary has no present entitlement and may never have any entitlement to any part of the income or capital of the trust" (Kennon & Spry at [77], French CJ). There is no evidence before the court to support a value being ascribed to the rights of the husband as an eligible object.
In any event, that was not the argument being made on behalf of the wife. Instead, the wife initially argued that the court might find that the husband exercised sufficient additional control, within the operations of the trustee, such that he might be seen as having influence beyond his minority shareholding in the trustee company.
The evidence, summarised below, does not support a finding that the husband has any greater control than his siblings to direct the exercise of discretion by the trustee.
In March 2023, the husband's lawyers provided the wife's lawyers with a copy of a Directors' Circular Resolution, signed by the husband's siblings, confirming that they did not agree to the husband "withdrawing his interest in the trust" (the wife's affidavit at [138]). This outcome was confirmed by the husband in cross examination. While the husband was challenged about his decision not to call his siblings as witnesses in his case, the evidence, taken as a whole, supports his position that he holds a 25 per cent interest in the trust and that his siblings have refused to agree to the early release of his "share" of the trust. The husband has received a number of dividends from the trust during the marriage and in each instance, he received the same amount that his siblings received.
Similarly, the evidence does not support a submission to the effect that the husband controls the trustee company or that the company was the "mere puppet" of the husband (Ascot Investments Pty Ltd & Harper & Harper (1981) 148 CLR 337).
In Caldwell & Caldwell [2025] FedCFamC1F 506, where the wife sought a declaration that certain discretionary trusts or the property held by the trusts, was property of the parties, Carew J said:
1. Whether trust assets are property of a husband and/or wife within the meaning of s 79 depends on the circumstances of case. In particular, it may depend on the terms of any trust deed, the purpose of the trust, the origin of the trust assets, whether a spouse-party has control of the trust, whether that party has the power to distribute capital to one or other of the spouse-parties, the history of any dealings of trust property, and whether but for the trust, the property would unquestionably be the property of the spouse-party or spouse-parties. However, without the control of the trustee, whether direct or indirect, and a power to benefit by distributions one or other of the spouse-parties, there is little prospect, if any, of successfully arguing the trust assets are property for the purposes of s 79.

[86]

The husband confirmed in his oral evidence that his involvement in making decisions relating to the trust consisted of him signing a letter each year, prepared by and produced to him by others, in which he confirmed his agreement to a proposed distribution.
Unlike the unusual circumstances at play in Kennon & Spry, the assets of the E Family Trust were not acquired by the spouse parties or either of them but were the product of the enterprise of the husband's late father (or his mother before him) without the input of the husband.
I accept the husband's evidence that he and his siblings had agreed, shortly after the death of their father, that the income of the trust would be distributed amongst them in equal shares.
While the husband did not call any of his siblings, the evidence before me comfortably satisfies me that consistent with the terms of the Trust Deed, and absent a decision made by the trustee to the contrary, the husband and his siblings have equally shared in the income of the trust. I find that such has been the case with respect to the distribution of income made by the trust since the death of the husband's father in 2018.
I am not satisfied and do not find that the husband has any greater control than any of his siblings, with respect to the management of the E Family Trust and the exercise of discretion by the trustee. The evidence does not support a finding that the husband has control over the trustee, or the capital or the income of the E Family Trust. I am satisfied that he has a right to due consideration and a right to due administration under the trust.
I am also satisfied that in July 2024, the trustees determined that certain capital holdings of E Family Trust would be sold and that the net proceeds of sale would also be distributed equally between the siblings (consistent with the Trust Deed and the agreement reached between them). As a result, the husband has received the benefit of franked dividends and capital payments to a total of $100,000 in the financial year ending 30 June 2025 (as made clear in the husband's oral evidence).
The husband directed some of those funds to be paid directly to his lawyers for payment of part of his fees relating to these proceedings.
While these more recent actions by the trustee of the E Family Trust, in selling a portion of the assets of the trust, may be suggestive of the possibility of the future liquidation of the trust's assets, whether or not that occurs and when that might occur, is speculative.
Even if the husband and his siblings determine to sell assets of the trust in the future, at this time, there is no evidence before me which would support the inclusion in the balance sheet of the value asserted on behalf of the wife to be attributed to the husband's interest in the trust.
On that basis, I decline to include any portion of the asserted value of the assets of the trust in the balance sheet.
It was conceded on the part of the husband that his interest in the trust ought to be considered a resource available to him. I address the husband's interest in E Family Trust further in my consideration of matters under s 79(4)(d)-(g) of the Act.

[93]

But for the distribution made to the parties, by consent, the property pool would be enriched by $450,000. That sum was distributed between the parties, by consent, but in unequal amounts, favouring the husband.
It was contended on behalf of the wife that the parties had otherwise removed from the final balance sheet amounts representing funds applied to legal fees and the related borrowings for those fees, undertaken by each party.
Counsel for the wife submitted that the approach undertaken by the husband was, in effect, imposing an assessment of how each of the parties used their partial property settlement and other funds available to them in the post separation period, in circumstances where authority makes clear that each party is entitled to earlier access to some of their property, in well-known circumstances (see for example Strahan & Strahan (Interim property orders) [2011] FamCAFC 126; (2011) FLC 93-466).
The husband appears to have undertaken some analysis of the wife's use, in the post separation period, of these and other funds obtained by her from a variety of sources, discussed further below, to assess the extent to which the wife has "explained" the source of funds applied by her to meeting her legal costs. At the conclusion of the evidence, the husband's counsel asserted that the wife had not "explained" the source of funds to meet her total legal fees in an amount of $91,000 and on that basis, that amount would be added back to the balance sheet.
I am not persuaded that the approach urged upon me on behalf of the husband is appropriate.
The approach sought by the wife has the effect of restoring the parties to the position they were in, in May 2023, before funds were distributed between them. That approach has the attraction of being consistent between each of them and does not require further scrutiny of how each of the parties have determined to use funds to which they were entitled, and is particularly attractive when the funds received by each party were not equal.
I am satisfied that the approach recommended on behalf of the wife, has the advantage of neutralising the issue between the parties. I am satisfied that it is just and equitable and otherwise proper to include those amounts in the balance sheet, in full.
Further addbacks were sought by the husband at items 34 to 40 inclusive of the balance sheet and which were resisted by the wife. The husband sought the addback (in total) of $70,400, being funds taken by the wife after separation from particular bank accounts (reduced to separate claims, the amount of $53,000 in item 34 of the balance sheet and the amount of $17,400 being items 35 to 40). In summary, the husband contends that:

[95]

At item 34, the husband contends that the wife withdrew $53,000 "at separation" and it should be added back. The basis for the contended addback is that the wife took $53,000 from accounts in that period (it was acknowledged by the husband in his oral evidence that such occurred over a series of transactions) and despite her explanation as to the application of those funds in her evidence, the husband required them to be added back. The husband agreed in cross examination that his approach to this claimed addback was that "every dollar she withdrew" from these accounts since separation to February 2022 was to be added back.
Separation occurred in November 2021, and the husband moved out of the rental property the parties had been living in (while awaiting the repair of their home). At that time, the wife was studying, had very modest income, including from share dividends (approximately $20 per week), interest upon funds invested, and from March 2022, Commonwealth benefits of $230 per week.
The parties' child continued to live with the wife. The husband was not, at the time the funds were withdrawn, paying child support. He was working and directed his income to his own support and requirements, upon living separately from the wife.
It was contended on behalf of the wife that the husband, in seeking the addback of $53,000, was engaged in a process of "micro-analysis" of funds spent by the wife in the post separation period and that his complaint (to found the addback) was, in effect, that he had not approved the expenditure, or that the expenditure was not for "living expenses".
The wife asserted in her written evidence that after separation and until March 2022, she continued to use the J Bank account (#51) in the husband's name, to which she had access and which they had used to meet the costs of their household prior to separation, to pay her living expenses and accounts relating to her household. She also had access to the parties' joint account ending #01 in which had been deposited funds received from the husband's late father's estate.
In her oral evidence, the wife confirmed that the funds she had accessed at that time included monies being paid by Q Pty Ltd (under the insurance claim relating to the storm damage to the Suburb C property) for their rent of other premises and for the replacement of household items. That was consistent with the wife's written evidence and Exhibit 9.
I accept that evidence.
While the husband conceded that these were accounts from which the wife could draw funds for her living expenses after separation and when she did not have income from employment outside the home, his criticism seemed to be that the funds were not sufficiently explained as being related to her living expenses. The husband also suggested in cross examination that the wife could have turned to her father for her self-support.
I do not accept that the wife ought to have turned to her father to assist her to meet her living expenses and support costs, rather than her husband. The wife's father does not have an obligation to support his adult daughter, following the end of the parties' marriage. While the parties have previously had the benefit of financial assistance from the wife's father (as summarised previously), that generosity does not mean that the wife ought to have turned to him rather than to the husband, for her support and the support of their child.
From March 2022, the wife directed $4,800 per month from the parties' investment account to the support of her household. In March 2022, the husband's lawyers sought an explanation from the wife as to her withdrawals from those accounts. The wife instructed her solicitors to provide a response to that inquiry, in April 2022, to the effect that the funds were required for living expenses, noting she was unemployed, had primary care of the child and received no direct financial support from the husband.
Despite this, the husband maintained (including in his oral evidence) that he did not know how the wife explained her stated requirement for financial assistance, despite having her Financial Statement dated 29 June 2022 (Exhibit 5). That document made clear that the wife's estimated weekly costs (for herself and the child) were much greater than the $1,200 per week that the wife received.
On 18 May 2023, the parties entered an interim consent order through which it was agreed that the wife would continue to draw $4,800 per month for her support (and for the support of her household, including the child). The wife's evidence at trial remained that her income (even with that weekly payment) was insufficient to meet the costs of running her household, which included the care of the child.
While the husband's employment income was not sufficient to meet the wife's claimed support needs (in addition to his own self-support), it was proper that the parties in those circumstances, accessed some of the money in bank accounts available to them to ensure that the wife (and the child) were properly supported. As has been repeatedly endorsed by the Full Court (including in Trevi at [29] and M & M [1998] FamCA 42), parties are not expected to live in a state of "suspended economic animation" following separation.
The evidence does not satisfy me that the facts of this case require, exceptionally, the exercise of discretion to add back funds to which the wife had access, which are now notional. The wife had no means of self-support at that time and accessed funds which were available to her. Those funds, in any event, included funds paid by the insurance company for rent of the home in which she and the child continued to live and replacement of damaged household items. It was not asserted that the wife was not entitled to access those funds. The wife needed a means of supporting herself and the child.
I decline to add back the $53,000. I will remove item 34 from the balance sheet.
The husband also sought the addback of additional funds identified in items 35 to 40 of the balance sheet. Originally (in his trial balance sheet and outline of case document), the sum so claimed by the husband was a total of $179,721. That claim was reduced by the husband, at the conclusion of the evidence, to $17,400.
The husband abandoned certain of the claimed addbacks only during cross examination, including amounts which he accepted were applied by the wife to the payment of the child's school fees. Other amounts were maintained. The husband for example, conceded in his oral evidence that the payment made by the wife to a third-party claims' advisor, to assist in the management of their outstanding insurance claim (an amount of $5,484.37), was "money well spent". Notwithstanding, he maintained in his oral evidence, that such sum be added back as it "was not for living expenses".
The husband persisted in his contention that the wife had failed to establish to what extent the funds were needed for her living expenses or support. The wife was not cross examined about the funds in items 35 to 40 of the balance sheet (the $17,400).
In these circumstances, I decline to add back the additional funds which the husband has claimed the wife has expended in a fashion which has not been explained to his satisfaction, and I will remove those items (items 35 to 40) from the balance sheet.
The husband's counsel had submitted that an amount of $91,000 ought to be added back to the balance sheet as funds obtained by the wife from funds which existed at the end of the marriage, and which were applied to legal fees. The submission was to the effect that the wife's evidence and Costs Notices did not make clear how she had in fact met her total legals costs. In those circumstances, it was submitted that the unexplained amount, should be "added back" to the balance sheet, as by implication, those funds could only have been derived from the funds in the investment account in the wife's name.
The wife's written evidence made clear that she had accessed certain funds from the Super Fund 1 account for her legal fees and that she did not repay those funds (paragraphs 218 and 219). I accept that evidence and find that the wife obtained $81,316 from the funds which were invested in the Super Fund 1 account (which funds were sourced from the inheritance the husband received in 2019) and applied that money to her legal fees.
The wife contended in her written evidence that "to the extent that funds were paid towards my legal fees, they are already accounted for in the line item on the balance sheet that refer to my legal fees". In the balance sheet relied upon by the wife in her outline of case document, she had contended for the addback of legal fees in an amount which included these sums identified by her in paragraph 218 of her affidavit.
However, a different approach was taken by the wife in the final balance sheet, being Exhibit 3, but those additional funds applied by her to legal fees, were not otherwise addressed in that revised balance sheet.
In these circumstances, I will addback to the balance sheet the amount of $81,316 being funds removed by the wife from the Super Fund 1 account which she subsequently applied to legal costs. I do so in circumstances where this approach appeared to have been embraced by the wife in her evidence and where doing so ensures that the husband is not inadvertently contributing to the payment of the wife's legal costs.
Having so determined, I disregard the balance of legal fees sought to be added back on behalf of the husband (item 29).

[96]

I have also removed items 21 to 27 being household and personal items in circumstances where the parties reached agreement as to their distribution, and any item to which both parties had ascribed a Nil or zero value.
At the conclusion of the evidence and where the value of each party's superannuation was not the subject of dispute, I was advised by counsel for the husband that the parties had agreed that they would each retain their superannuation interests, without a split "or anything taken into account". I note that the superannuation interests of each party are very similar in value. I understood the submission to be to the effect that the parties would each retain their respective superannuation interests, and those funds would not otherwise be included in the balance sheet and be subject to the contribution and future needs assessment to be undertaken with respect to the other property expressed in the balance sheet.
Consistent with this approach, on the final balance sheet (Exhibit 3), it was noted "Total Superannuation - not included as each keep their own", and the husband applied a zero value for the superannuation when arriving at the net property pool available for division. It was put to me that this was an agreed approach, notwithstanding the wife's part of the balance sheet did not contain the same commentary. I have acted on the basis that this was indeed the agreed approach of the parties. In any event, I set out later in these reasons my consideration of the superannuation interests of the parties and have expressed the superannuation interests of the parties separately in the balance sheet below.
The wife has superannuation of $210,183 across two accumulation funds and the husband has superannuation of $218,012, also held in two accumulation funds. For the purposes of the final balance sheet, the superannuation held by each party will be reflected in a separate category or pool. As part of the agreed approach between the parties, I will take into account the superannuation interests of each of the parties when considering the outcome of the final orders which I determine to be just and equitable.

[98]

This was a relationship and marriage of 23 years to the date of separation and of almost 27 years, at the time of the hearing. At the time of the final hearing, the child of the parties was 14 years old.
There was little dispute between the parties as to many of the key contentions made by each of them in their written evidence about the contributions each made during the marriage, save primarily for the wife's contentions as to the impact of family violence by the husband, discussed further below.
At the beginning of the cohabitation, the parties had little property. It was agreed that the wife had received a gift of $10,000 from the wife's parents in 1998.
It was also agreed between the parties that other gifts were given by the wife's parents during the relationship (to a total of $4,800). Given the length of the marriage and the other, various contributions made by each of the parties over the course of their relationship, these amounts so contributed will have little impact upon the contribution assessment.
There is dispute between the parties as to whether they had received the benefit of reduced rental when they lived in a property owned by the husband's father at Suburb R, NSW between 2002 and 2007. The husband contended that the reduced rental allowed the parties to make savings towards the purchase of their family home. That assertion is not established on the evidence.
I accept the wife's unchallenged evidence that the parties purchased the Suburb C property in February 2007 for $540,000, by borrowing the full purchase price, the application of the first homeowners' scheme and by a gift from the husband's father of $40,000 (which was used to pay the mortgage insurance and stamp duty).
I infer from those matters that the parties did not have savings at that time.
In July 2010, the parties borrowed $40,000 from N Pty Ltd. Certain repayments were made with respect to that obligation before the balance was forgiven, after the birth of the child.
In 2013, the wife obtained a loan from her father for $39,000 to repay credit card debt.
The husband also asserted that he had received $20,000 from his late brother's estate in 2015; this was disputed by the wife. The husband was not challenged about this assertion, and I accept that those funds were received and applied by the husband as set out in his written evidence (including buying equipment for his business and towards a family holiday).
In April 2015, the parties borrowed a further $100,000 by way of refinancing of the home mortgage - using some of those funds to repay the loan from the wife's father, buying a new car, funding renovations to the Suburb C property, funds for the business (established in 2013) and living expenses.
In April 2016, the wife borrowed a further $10,000 from her father to fund additional renovations to the home.
In May 2017, the wife was made redundant from her employment and received a termination payment of $107,237.37, which funds I find on the wife's unchallenged evidence, were applied to the benefit of the family, including mortgage payments, living expenses, reducing credit card debt and a voluntary contribution to superannuation on behalf of the husband (of $5,000).
The wife had received a number of O Pty Ltd shares. Those shares are still held by the wife.
On 30 November 2017, the husband received $500,000 from his family following the sale of a property in Suburb H, NSW. I find that those funds were applied to the parties' mortgage ($200,000), to the purchase of cars, to the repayment of money borrowed from the wife's father, $10,000 to the husband's superannuation, for family holidays, and on general living expenses.
In paragraph 46 of the husband's affidavit, he sets out a range of payments made to him/the family, from his late father. That evidence was not the subject of challenge and accords with the wife's evidence as to the amounts which she says were received from the husband's father, including $500,000 paid upon the sale of the property at Suburb H in November 2017 (as above). I accept that evidence. That evidence includes funds received in 2007 ($42,500), in 2013 ($7,300), in 2015 ($42,020) and in 2016 ($16,675). I accept that those funds were applied to the benefit of the family, including towards meeting mortgage repayments, holidays and living expenses.
The wife prepared a summary of the payments which she says the husband received from E Family Trust between 2018 and 2024. That document was received without objection and became Exhibit 10. I accept that evidence. That summary makes clear that in the period from September 2018 to 27 July 2024, the husband received from E Family Trust, funds totalling $785,382.68.
This included a payment on 24 September 2018 of $250,000 from E Family Trust. A payment of $67,760 was also paid to the husband from the E Family Trust on 5 October 2018. From those collective funds, $200,000 was paid towards the mortgage over the home and further funds were applied to a family holiday.
Some of the payments identified in Exhibit 10 were made after the parties had separated, in November 2021.
The schedule makes clear that prior to separation, the funds received by the husband from E Family Trust and applied to the benefit of the family (including towards the child's education costs and towards the mortgage), totalled $615,136 (in a range of payments made over three years from 19 September 2018).
The husband's father died in mid-2018. In February 2019, the husband received $1,125,000 from the estate of his late father. I note that there was a difference between the parties in their evidence as to the amount that the husband received from the estate. The wife deposed to the husband receiving an amount of $1,225,000 and the husband deposed to the amount being $1,125,000. No source document was provided, and no submissions were made as to the differing amounts. I have accepted the husband's figure on the basis that I infer he had access to the records from which this number may have been sourced.
From those funds, the wife asserts that $101,516.43 was applied to discharge the mortgage over the Suburb C property. An amount of $1,000,000 was invested in the wife's name and has been drawn upon, since receipt, to meet various costs relating to the child's education. Funds were also applied from the inheritance to the purchase of another car, installation of solar panels to the home, holidays and other expenses for the benefit of the family. I accept this evidence.
The wife had asserted in her written evidence, some uncertainty that the husband had applied all funds received by him from various sources (including his employment income) to the benefit of the family. In cross examination, that assertion was to the effect that the husband had directed the money he received from the trust to an account in his sole name. The wife had not particularised evidence of examples in support of her contention that the husband had directed any funds so received by him to expenditure or purchases outside of the family. The evidence as a whole does not support the contention made by the wife that the husband directed funds he received during the relationship other than to the benefit of the family and I decline to make that finding.
The funds received by the husband during the relationship from external family sources (outside of his own exertion income), set out previously in these reasons, were substantial and were received effectively across the duration of the relationship (and distributions from the E Family Trust in the post separation period). Some of the payments received were more modest in quantum and were received at dates earlier in the relationship; other amounts received were much more substantial and were received later in the relationship. Some of the funds were directed to lifestyle and experiences enjoyed by the parties/the family. The funds have been impactful given the modest income from exertion earnings of the parties, since the wife ceased work outside the home and the husband continued in relatively low paid employment.
I am satisfied and I find that the funds, summarised above, received by the husband from his family, from E Family Trust and from his late father's estate to the time of separation, were applied by the husband to the benefit of the family. This includes an amount of $1,000,000 from the inheritance the husband received from his late father's estate in 2019, being invested in an account in the wife's name (initially the Super Fund 5 account, but later the Super Fund 1 account). These are significant amounts of money, received at various points during the relationship, and which benefitted the parties over the course of the relationship. They represent a significant financial contribution made on behalf of the husband and have been applied by the parties in ways which have benefitted their family, including by way of discharge of the mortgage over the family home and assisting in meeting the ongoing costs of running the parties' household. I take the introduction and application of these substantial funds into account and give them significant weight.
Over the course of the relationship, the parties were advanced loans from the wife's father, to assist the parties in improvements to their home and to refinance certain liabilities when the management of such was beyond the means of the parties. Those funds were borrowed, including at times of financial difficulty experienced by the parties and it is agreed between the parties that those funds were repaid. I accept that access to those funds would have been of assistance to the parties at various times in the relationship, given they were sought when the parties were experiencing financial difficulties, but I do not otherwise take receipt of those funds into account in consideration of the contribution assessment between the parties.
The husband conceded that the role he could play in the household and in the care of the child was impacted by the extent of his alcohol consumption and its impact on his functioning. He conceded that the wife needed to shield the child from the consequences of his drinking (or at least, his conduct, which was impacted by his drinking).
The wife's unchallenged evidence was as follows:
1. During the relationship, [Mr Acantha] was controlling in his behaviour. [Mr Acantha] was very critical, aggressive, and also at the same time extremely charming. About two years into our relationship [Mr Acantha] became verbally abusive, for example he would refer to me as, "you fucking bitch". [Mr Acantha] would berate me when he was intoxicated, criticising my weight, physical appearance, cooking, parenting, and housekeeping.
2. [Mr Acantha's] verbal abuse was often fuelled by his excessive alcohol consumption. [Mr Acantha] sometimes remained out drinking until 6.00 am and later slept all weekend because he was sick and hungover. For the first three to four years of our marriage [Mr Acantha] binge drank. He stopped consuming alcohol excessively early on in the marriage when we were trying to conceive and embarking on the IVF programme.
3. On one particular occasion in [October 1999], [Mr Acantha] punched a wall next to my head. [Mr Acantha] damaged the wall, and his hand required x-rays the next day.
4. On another occasion in [December 2009] [Mr Acantha] fell whilst intoxicated hit his head on a concrete gutter and lost consciousness briefly. I had to arrange and accompany him in an ambulance and he was admitted at 2am to [S Hospital]. He was released later that morning at 9am. The hospital report noted that the husband had a blood alcohol level of 0.22. [Mr Acantha] declared to the doctors that he had 'smoked a million bongs'.
5. During the marriage [Mr Acantha] occasionally smoked marijuana and later grew a marijuana plant in our garden. [Mr Acantha] used and had a bong and other drug paraphernalia stored at our home. I observed [Mr Acantha] to smoke a lot of marijuana during the 2021 covid lockdown.
6. As our relationship progressed, [Mr Acantha's] level of aggression worsened. His level of verbal abuse became more extreme, and Saturdays and Sundays became write offs due to his alcoholism and I became further socially isolated. Friends and family from [UK] preferred not to visit because of [Mr Acantha's] behaviour.
7. When [X] was born [Mr Acantha] would not let anyone from my family visit [X] until was three months old, however we visited [Mr Acantha's] family with [X] during this period. In 2013, [Mr Acantha] turned the spare room into a gaming room which meant that my family were unable to stay if they were to visit from the UK, and [Mr Acantha] continuing to isolate me.
8. [Mr Acantha's] anger and aggression whilst intoxicated often occurred in the presence or hearing of [X]. I tried to protect [X] from the conflict by removing him from the room when [Mr Acantha] was engaging in this behaviour.
9. [Mr Acantha] admitted that his behaviour during the relationship constituted family violence, as set out in the Single Expert Report prepared by [Ms T] dated 8 May 2024. [Mr Acantha] admits to being verbally abusive to me, and that when he argued with me, he shouted, swore, slammed doors, and that this was in the context of him abusing alcohol. [Mr Acantha] did not admit to the family violence being physical, including the incident where he punched a wall next to my head. [Mr Acantha] also admits that for the last few years of our marriage the family violence escalated when he drank to excess at weekends and there were blow ups between us often weekly.

[108]

The husband's counsel submitted that the wife had failed to make clear in her evidence the extent to which that conduct (conceded by the husband) had impacted her and made it harder for her to make various contributions.
The evidence makes clear that the husband's poor conduct (variously, his excessive drinking and angry and abusive conduct directed to the wife and, or, in the presence of the child) occurred virtually for the duration of this long marriage, save that the binge drinking did not occur in a period when the parties were engaged in the IVF process. The wife continued to engage in her employment, care of the child, and made contributions to the household (including in care of the husband) despite these circumstances.
In the almost thirty years since Kennon, a number of important Full Court decisions have assisted in the refinement and development of the relevant principles to be considered when family violence is asserted as impacting upon the contributions of a party.
The contributions made by the wife are to be assessed in light of all of the circumstances, which circumstances include the conduct of the husband. As the Full Court made clear in Benson & Drury [2020] FamCAFC 303 ("Benson & Drury"), the task is to assess the contributions holistically:
1. The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)-(c) or ss 90SM(4)(a)-(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898 at [73]-[87] ("Jabour"); Horrigan & Horrigan [2020] FamCAFC 25 at [42]-[48]).
2. That principle has its counterpart in the application of factors prescribed by s 75(2) or s 90SF(3) of the Act (Tomasetti and Tomasetti [2000] FamCA 314; (2000) FLC 93-023 at [107]-[114]). Any adjustment to the parties' contribution-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustments in respect of each relevant factor.
3. Although the use of the short-hand descriptor of a "Kennon claim" is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process (Paysen & Laukien [2020] FamCAFC 101; (2020) FLC 93-960 at [48]-[50]). Nor is it helpful to refer to the issue as a "Kennon adjustment" because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.
While in Kennon, the Full Court spoke of "the relatively narrow band of cases to which these considerations apply" (at 84-294), in a contemporary context, given the prevalence of family violence in matters before the courts, this exceptionality is no longer evident.
I respectfully acknowledge and adopt the observations of Aldridge J in Martell & Martell [2023] FedCFamC1A 71 as follows:
1. It has to be said, that their Honours terms "exceptional" and "narrow" lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle. As I shall endeavour to explain shortly, the focus of the majority's reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives.
2. In Kennon, the principle was identified as follows:

[109]

Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79.

For the reasons given, the words "significantly" and "more arduous" are not to be read as coterminous with "exceptional". Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person's contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been "significantly impacted" or made "more arduous". The focus is not on the conduct per se, but on its effects on contributions.

The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.

That, in my view, should be the focus and terms such as "exceptional" or "narrow", or indeed, "onerous" add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a "significant adverse impact" upon a party's contributions. The word "significant" was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.

More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to "quantify" that effect (Maine & Maine [2016] FamCAFC 270; (2016) 56 Fam LR 500 at [47]-[52] ("Maine"); Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764 at [74]-[75]; Keating & Keating [2019] FamCAFC 46; (2019) FLC 93-894 at [27]-[43], [52]-[67]; Benson & Drury [2020] FamCAFC 303; (2020) FLC 93-998 ("Benson & Drury") at [47]-[50]).

It seems to me that regarding Kennon claims as "special" or "exceptional" is apt to mislead. In reality, all the majority said in that case was that a person's contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244; Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898).

[110]

It is recognised that the link between the impugned conduct and the contributions being shown to be significantly more arduous may be identified either by direct evidence or inference (S & S [2003] FamCA 905).
That principle has been developed further. The Full Court in Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764 observed:
1. The respondent submitted that the appellant's evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
The Full Court in Benson & Drury made clear that inferences may be drawn as to the impact of proven family violence and the contributions made by the person who has experienced that violence:
1. Even though S & S might, in the past, have been interpreted as implying the need for something more, it should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties (Maine v Maine [2016] FamCAFC 270; (2016) 56 Fam LR 500 at [47]-[52]; Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764 at [74]-[75]; Keating at [27]-[43], [52]-[67]).
2. Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent's contributions, making them "all the more arduous" (at [162]). An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H [1994] HCA 48; (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275-278 per Spigelman CJ; Carr v Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301 at 306-307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]-[66]).
In Giunta & Giunta (No 3) [2021] FamCA 272 ("Giunta"), McClelland DCJ observed as follows:
1. First, in the year 2021, it is unacceptable that a party is shut out from obtaining redress in respect to the impact of family violence on the basis of the opening "the floodgates" argument applied in earlier authorities. Second, the requirement for a party, who has been the victim of family violence, to quantify the effect of that violence on that party's ability to contribute to the welfare of the family, is at odds with more recent authorities of this Court that have been applied when family violence is not an issue. In that respect, in Petruski & Balewa at [49], the Full Court said "[t]he task of assessing contributions under s 79 of the Act is an holistic one" and that "such an evaluation 'inevitably involves value judgments and matters of impression' and, further, the task should not be treated as 'a mathematical exercise'".
2. Third, there is no justification to require a victim of family violence to meet a higher evidentiary threshold than applies in other areas of civil law. In that respect, the evidentiary threshold, as determined in Kennon and S & S, required a party, who has alleged that they have been subject to family violence, to adduce "explicit and detailed evidence" or, at least, evidence that must be such that there "is an obvious or a very likely inference", from the facts, that the violence adversely affected them and impacted, in a quantifiable way, upon their capacity to contribute.

[113]

I have made findings, set out previously, as to the wife's experiences over virtually the whole period of cohabitation as a consequence of the husband's excessive drinking and family violence towards the wife and to which the child was exposed. I am persuaded that it is not necessary to find that the violence, or its impact, was exceptional, but that it has in fact occurred and that it has had a discernible effect on the contributions made by the wife.
Guided by authority summarised above, I readily infer, from this evidence, taken as a whole, that the husband's conduct, which he concedes continued for the bulk of the marriage, impacted the wife and would have made it harder to do the many things required of her in the management of a family home, including the care of a young child where the other adult is engaged in excessive alcohol consumption, is angry and verbally abusive, and on occasion, acted in a manner which was physically intimidating and frightening. The husband's admissions included that his drinking meant that he was not available to assist the wife in the additional activities and care of the child on weekends.
The wife said that weekends were "a write off" for the husband and I infer from that statement, that the responsibility for the family and the care of the child fell to the wife in those circumstances, unaided by the husband. The wife deposed to feeling the need to shield and protect their child from exposure to the effects of the husband's conduct. The husband's drinking at times, he says, was such that he experienced black outs. I accept that evidence and I also find that on occasions his drinking was so excessive that he required medical intervention (as set out in the wife's written evidence).
In the wife's case outline, I was referred to a decision of Robb J in the Supreme Court of New South Wales, where his honour was tasked with determining a property settlement matter under the Act which included allegations of family violence (among other things). In Norris v Brooks [2022] NSWSC 804 ("Norris v Brooks"), Robb J expressed the following:
1. A judge hearing a case like these family law proceedings should have the emotional empathy necessary to make a reasonable assessment of the subjective effect of family violence, where the effect of that violence is not as obvious as, say, the result of debilitating physical injury. The work of caring for and nurturing the physical and emotional needs of children and the general maintenance of a household may be made significantly more adverse if it has to be undertaken in a state of fear, depression, uncertainty or self-doubt. So much is a matter of general human understanding.
The husband admits that his drinking and associated poor behaviour had had an impact on the wife (and the child) and he agreed that at times the conflict between he and the wife occurred even when he was not affected by alcohol, and that such would still have negatively impacted upon the wife. I am persuaded that such would have been the outcome, as a matter of common sense.
Applying the "general human understanding" of which His Honour speaks in Norris v Brooks, it is abundantly clear, given the unchallenged evidence set out previously, and I so find, that the responsibility for the management and conduct of the household and the care of the child (in the various stages of his growth and development) was undertaken by the wife with little assistance from the husband and in circumstances where, over an extended period of time, he engaged in the impugned conduct described previously. I readily draw "the more probable inference" (as described by McClelland DCJ in Giunta) and find that such conduct would have had a discernible effect on the contributions made by the wife, as homemaker and as parent. I infer that the performance of the parenting and homemaker duties by the wife would have been made harder in the context of sustained poor conduct by the husband.
I take the husband's conduct (including his binge drinking, blackouts, verbal abuse and violence towards the wife) and the impact of such upon the contributions made by the wife into account in the assessment of the parties' contributions and give it some weight.
Prior to the birth of the child, the parties each worked full time.
The wife had taken six months of maternity leave following the birth of the child. The husband, having worked full time in financial services until 2011, stopped working outside the home and cared for the parties' child from September 2011 until January 2012. From January 2012, the child was enrolled and attended a care/pre-school facility on a full-time basis.
Between 2002 and 2017, the wife was employed full time at O Pty Ltd (save for a period of six months of maternity leave following the birth of the child as above).
The wife pursued additional studies while working full time and in 2004, completed her masters degree. Part of the costs of those studies were met by her employer, and the balance was paid from the resources of the parties.
Between 2017 and 2019 (after the wife had ceased working) she assisted the husband in his business, providing labour three days per week.
The wife has not worked outside of the home (save for labouring in the business) since 2017.
Since February 2020, the wife has been undertaking another masters degree. The wife does not hold an undergraduate degree relating to the masters degree.
The husband had some disruptions to his employment and periods where his employment was irregular. From 2013, the husband began studying to acquire horticultural qualifications.
In August 2013, the husband began his own business.
In July 2020, the husband also began studying, commencing a vocational certificate at TAFE. In January 2021, the husband began a bachelor's degree, which studies have since been deferred.
Until the wife was made redundant from her employment with O Pty Ltd, I find that her employment income exceeded that of the husband. However, the husband's employment income was bolstered by funds which he received from his family and, or, distributions from E Family Trust, which contributions are noted and considered previously in these reasons.
Each of the parties were employed outside of the home for extended periods, in various roles, during the relationship. There were some disruptions to the employment of each of the parties, in differing circumstances, over the course of the relationship. I am satisfied and find that during the marriage, the parties used their best endeavours and differing skills in securing and maintaining employment. I find that the parties each applied the income they received from their employment to the benefit of their family and household.
I find that the parties have each undertaken during the relationship, further study, to acquire different vocational skills, which each of them takes from the marriage by way of earning capacity.
In December 2018, extensive storm damage was caused to the Suburb C property. A claim was made by the parties under an insurance policy they held with Q Pty Ltd. An initial payout by the insurer was made, of only $56,825.32. The wife subsequently engaged a third-party claims agent to assist in the progression of their claim against the insurers.
The wife sets out in her written evidence her role in pursuing the claim and securing the improvements and repairs to the home.
The husband expressed disagreement with the wife's evidence about her superior role in progressing and managing the claim. However, the husband's bald denial was not supported by any evidence as to what he did, to support his challenge to the wife's evidence. The wife was not cross examined about those matters.
The wife's evidence of her engagement included attending 45 meetings and undertaking "over 80 calls" and "reading and responding to hundreds of emails". The matters set out by the wife in her affidavit support her contention that her significant involvement far exceeded that of the husband and that this process has benefitted the parties. I also have regard to Exhibit 4.
The wife withdrew from some of her studies in 2021 to concentrate on the management of the insurance claim, to engage in project management of the remediation and rebuild, and to be available to home school the child, during another period of Covid-19 lockdown. I accept the wife's evidence.
As a consequence of that engagement by the wife as well as the work of the agent, the insurer, in due course, paid a total of $386,955. I also accept the wife's evidence that the insurer made payments to cover damaged items of $50,692 and that the wife has applied those funds to the purchase of new items for the home, including carpets and window treatments.
I am satisfied and I find that the wife was primarily responsible for the management of the claims process, including engaging with the insurers, securing the services of an agent to progress additional negotiations with the insurer and then working with the agent, and in managing the repair and rectification works.
I find that the wife's work in progressing and managing the insurance claim and repairs to the home was an important contribution towards that improved outcome, for the benefit of the parties, and I take it into account.
The child was born in early 2011. The wife asserts in her written evidence that she was primarily responsible for the care of the child during the marriage and after separation and that she undertook the majority of the domestic tasks and management of the parties' household.
The husband places no primary evidence before the court as to any homemaker or parenting contribution made by him.
The wife deposes to the efforts undertaken to conceive a child and the financial, physical and emotional burden of the IVF process (being ten cycles of in vitro fertilisation between 2004 and 2012). She deposes to the burdens of that process and the limited support she received from the husband at that time. I accept that evidence.
The wife recognised that the husband engaged in some gardening and arranged for the payment of the parties' shared bills but did "little to maintain the house". The wife also deposed to undertaking the handyman and decorating jobs at the home.
I accept the wife's unchallenged evidence, and I find that she undertook most of the household and homemaker/domestic duties during the relationship.
The wife deposed to her role in managing and attending the child's medical and educational appointments, assisting the child in his homework and in his therapy (given his additional needs).
The child was diagnosed with ADHD in 2018. He is prescribed medication for management of that condition. The wife asserts that the child also suffers from anxiety and that the child's "special needs have required my ongoing support, care and commitment". In the post separation period, the child was diagnosed with Specific Learning Disorder with Impairment in Reading (Dyslexia) and Specific Learning Disorder with Impairment in Writing (Dysgraphia).
The wife asserted that during the relationship, the husband was "short tempered" with the child, shouted at him, and was "unavailable on weekends". The wife contends that the husband was often absent from the home and from attending the child's appointments. She gives by way of example, that of the appointments occurring for the child for speech therapy over two and a half years, the husband attended three sessions. The wife deposes that the husband did not assist with the child's daily homework.
The wife deposed to the supports she has managed and implemented for the child, including regular attendance upon a psychologist, tutoring support (one stream of tutoring occurring after school hours and another stream of tutoring which occurs at school) and attendance upon a paediatrician.
I accept that evidence and find that the wife has managed to source and arrange these supports for the child, as required, before and since separation.
I am persuaded that the evidence before me permits me to find that the wife undertook the majority of the tasks of homemaker and parent, including supporting and parenting a child who was experiencing certain learning and sensory difficulties, which were the subject of additional uncertainty and investigation - also being managed by the wife. The wife did so while employed outside of the home (until 2017), not only with virtually no assistance from the husband, but also with the additional impediment of working despite the husband's admitted excessive drinking and abusive conduct.
Since separation, the child has lived with the wife. In the three and a half years since separation, the wife has continued to manage, virtually by herself, the child's day to day care and has been responsible for sourcing and facilitating the additional therapeutic supports to be provided to the child. I find that the wife has made a greater contribution to the care of the child in the post separation period, including periods where the child was spending little time with the husband.
I accept the wife's evidence that she continues in the post separation period to provide the child assistance with his homework and any online schooling tasks, and that she remains primarily responsible for getting the child to where he needs to be to meet his various commitments.
The wife's unchallenged evidence allows me to find that the wife made the superior contribution to the care of the parties' child both before separation and in the three and a half years from the time of separation until the time of the final hearing.
The wife has had the benefit of living in the former family home (returning to live there with the child in July 2022 when the repair works had been completed). That home was at that time mortgage free, and the wife has otherwise met the outgoings of that accommodation.
The husband was required to find and pay for his own accommodation after separation but in due course, moved to live with Ms F.
I also take into account that the wife has drawn for her own support, funds from the investment account which were sourced from the husband's inheritance.

[114]

It was contended on behalf of the wife that the contribution assessment would favour the husband as to 55 per cent. On the balance sheet as found by me (and not adjusting the superannuation of the parties, which will in effect be divided equally between them, on the basis that they will each keep their own superannuation benefits) that outcome would see the husband receive $216,881 more than the wife.
It was contended on behalf of the husband that his contribution assessment ought be determined at 80 per cent. On the balance sheet as found by me, on the husband's claimed contribution outcome, he would receive $1,301,288 more than the wife.
As the Full Court has again recently emphasised in Shinohara & Shinohara [2025] FedCFamC1A 126 at [130], the assessment of contributions is undertaken holistically, involving the identification and assessment of all of the parties' respective contributions, in a holistic way across the course of the relationship and in the post separation period, to the point of assessment. All contributions must be weighed collectively and not compartmentalising one and using it as a measure against others (Dickons & Dickons [2012] FamCAFC 154).
The approach urged upon me by the wife does not give sufficient recognition to the substantial funds which have been received on behalf of the husband over the course of the parties' relationship, from his family, the E Family Trust and in 2019, more than $1,100,000 from his late father's estate.
Receipt of those funds (and at times, very substantial funds) at various points across this long marriage have very materially assisted the parties, including in payout of the mortgage liability over the home, the purchase of cars, making investments and in funding lifestyle experiences including domestic and international travel (see Pierce & Pierce [1998] FamCA 74; (1999) FLC 92-844).
Substantial funds were invested (with $1,000,000 originally invested in the wife's name) from the inheritance funds received in 2019 following the death of the husband's father, from which the parties were able to draw funds for their support, the private school education of the child and from which the wife has received income (being interest generated on certain invested funds but also being the source of funds drawn by her in the post separation period for her support).
These are substantial financial contributions made on behalf of the husband, with the last and most substantial amount being received in 2019 (a little over two years before separation). Those most recently received funds have been applied by the parties to their substantial benefit, as summarised above, and the contribution of those funds and the earlier amounts received, must be given significant weight in the husband's favour.
However, the contribution outcome urged on behalf of the husband (80 per cent in his favour) fails to give sufficient recognition to the myriad of contributions made by the parties over the course of their long relationship and in the three and a half years since separation (a total period of around than 27 years). The wife's important contributions in earning and applying her income and caring for the child and as homemaker, including under difficult and hostile circumstances given the husband's conduct (about which I have made findings), must be given proper recognition and weight. In addition, the wife shouldered virtually all of the responsibility for the management of the insurance claim following the substantial storm damage to the Suburb C property. That contribution was of substantial benefit to the parties given the greater funds secured in the claim process (which were applied to replacement of damaged items, and the repair of the home, the most substantial asset in the parties' balance sheet). The wife has also provided greater care of the child in the post separation period.
The authorities make clear that all of the contributions made by the parties, in their different capacities, over the course of the whole relationship (and after separation, as applicable) are to be taken into account. In doing so, I recognise that the assessment of contributions "involves matters of estimation and is not, and cannot be, a mathematical exercise" (Connor & Levine [2012] FamCAFC 168 at [41]). Taking all of these matters into account, I assess contributions as favouring the husband at 65 per cent. This will result in a 30 per cent differential between the parties. That would see the husband receiving $650,644 more than the wife on the contribution-based assessment (of the net non-superannuation pool).

[115]

I now turn to consider what adjustment, if any, is warranted under consideration of the matters in s 79(4)(d) to (g) of the Act.
The wife is 54 years old and is in good health. The wife, at the time of the hearing, had not been employed outside of the home since 2017. The wife has not repartnered.
At the time of the hearing, the wife was completing her masters degree and was engaged, fulltime, in an unpaid placement. I accept and find that the wife is likely to secure employment as an educator when this placement is concluded and this accords with her expectation, as expressed in her evidence. The wife's likely regular income in that role is not certain, but her evidence was to the effect that first year educators are paid approximately $90,000 per annum (the wife's affidavit at [163]).
The child will remain primarily in the wife's care and spends three nights per fortnight with the husband (and school holiday time). The husband (as at March 2025) was assessed to pay child support of $260 per month (Exhibit 6). That assessment was based on a provisional income figure for the husband. A new assessment was undertaken (relying upon new ATO information as to the husband's higher income) resulting in a child support obligation of $719 per month, payable to the wife. However, I take into account that the ongoing child support amount paid by the husband to the wife may again change, upon the wife commencing her employment and her income impacting the statutory formula. The periodic support being paid by the husband under the administrative assessment remains quite modest, a corollary of the reality of the husband's relatively modest income.
The parties have reached agreement as to the payment of the fees for the child's attendance at his school and have entered into a Binding Child Support Agreement addressing those matters.
The child's education and other support costs will be met from the funds directed to that purpose under the Binding Child Support Agreement (which funds were sourced from monies received by the husband from his late father).
The wife is presently living with the child in the unencumbered family home. However, the wife has recognised that she will not be able to retain the home, and she will be faced with re-housing herself and the child upon the final orders being made. The wife will struggle to be able to afford to accommodate herself and the child in a manner similar to that which they experienced during the marriage. After these final orders are made, the wife will no longer receive the monthly payments of $4,800 provided under the interim orders of May 2023.
The wife continues to be responsible for the management of the child's additional needs (including his ADHD and learning challenges) which includes attendance upon a psychologist, a tutor, and accessing additional learning supports. While the learning supports are being provided to the child through his school, I accept that it will be the wife who will be required to monitor and manage any changes to those supports, which the child may require, over time, all while ensuring the child's continued engagement with the paediatrician.
The husband is currently 59 years old and is in good health. The husband continues to be employed as an educator. The husband's evidence about his income was a little unclear. However, in his oral evidence he said that he earns around $1,400 per week (before tax) on the occasions that he is working. He confirmed that he does not receive income during the semester holiday periods (being 16 weeks in the year). On that basis, I find that the husband's annualised income from his employment, expressed on a weekly basis, is around $969 per week, before tax.
In August 2023, the husband began further studies, starting a diploma.
The husband continues to provide some limited services through his business. It is possible that he may determine to increase those services and secure additional clients to supplement his income. It remains an option available to him. However, the husband is now 59 years old, and I accept that his capacity for the physical aspects of work of this nature will make this less likely.
The husband lives with his partner Ms F and has the benefit of living in accommodation provided by her. I am satisfied that the husband pays a regular amount to Ms F, being his notional rent (the property in which they live is owned by her) and an amount towards their living costs. The husband also stated that he gave additional funds to Ms F to manage on his behalf as he said he was "not good with money".
I do not find that Ms F supports the husband.
However, the benefits of a shared household means that there are likely to be some financial benefits to the husband flowing from his cohabitation with Ms F (including sharing certain household costs and expenses). As a consequence of that cohabitation, the husband has settled accommodation. I find that the cohabitation with Ms F is a financial resource for the husband, and I take that into account.
The husband also continues to be a beneficiary under the E Family Trust. He has received distributions from the trust in the past.
I do not know what the husband will receive, if anything, from the E Family Trust in the future. However, the pattern of distributions received, the husband's evidence as to his discussions with his siblings (the other members of the trustee) and his own expectations accordingly of the agreed position between them, provides a proper foundation for confidence that the husband will receive further distributions of trust income. The recent sale and distribution of capital suggests that it is also possible that the E Family Trust may determine to sell other capital of the trust.
Therefore, I am satisfied and I find that the husband is likely to receive additional funds from the E Family Trust in the future. I take that into account as a resource of some value to him.
The wife has borrowed money from her father Mr G. Mr G was not required for cross examination.
I find that the wife has borrowed $263,593 from her father and that those borrowings have been confirmed by way of loan agreements entered between she and her father. The loan agreements provide, and I find, that interest is payable on the funds advanced. The loan terms also provide that the funds are to be repaid on the earlier of 18 months passing from the date of the loan agreement or six months after a final settlement or court order is made. The wife maintained that upon the conclusion of these proceedings, she would have discussions with her father about when she repays to him the money that she has borrowed from him.
I accept the unchallenged evidence of Mr G in that he will call upon, and expects the full repayment of the loan, by his daughter. I find that the wife is required to repay those funds, at some point in the future, to her father. I take this liability into account in considering the wife's future financial obligations.
The husband has also borrowed funds from Ms F. The unchallenged evidence of Ms F is that she loaned the husband $200,000 in 2023, which was repaid when the husband received his partial property settlement that year. More recently, Ms F deposes to loaning the husband an additional $100,000. The husband deposes to this liability in his Financial Statement.
I accept that consistent with the evidence of Ms F and the husband's past conduct in repaying the $200,000 borrowed from her, Ms F will require repayment of this sum from the husband. I take this liability into account in considering the husband's future financial obligations.
This is a long marriage, and the wife continues to be responsible for the parties' only child. Both parties have some vulnerabilities with respect to their earning capacities - the husband's relating to his relatively modest exertion income (which, in part, derives from substantial school holiday periods when he is not working nor paid) but that, in part, may be supplemented by his pursuit of other employment and from likely distributions from E Family Trust. The husband is studying in pursuit of additional qualifications which may assist his employment options in the future.
The wife has retrained in the last years of the marriage, and at the time of the hearing was completing the last elements required before being eligible to commence as an educator. At the time of the hearing, she was not employed. She is starting a new career at a late stage of her working life with the uncertainties that such may create with respect to employment security.
The parties have agreed that they will each retain their superannuation interests. I take into account that the wife will retain superannuation of $210,183 and the husband will retain superannuation of $218,012.
The parties will each be able to contribute to their superannuation in the future as a product of their engagement in employment.
The husband is five years older than the wife and has fewer years remaining in the work force (before retirement) in which to make contributions towards his superannuation. The husband's employment income is currently less than that which the wife expects she will earn upon completion of her Masters. However, the husband has access to the resource of his interest in E Family Trust and may determine to direct additional funds to his superannuation.
I also have regard to the contribution finding that I have made and the property that each party presently holds and will retain, which favours the husband. The property being retained by each of them includes some notional property (being $300,000 received by the husband and approximately $230,000 received by the wife).

[116]

The wife contended that taking all of these matters into account, an adjustment should be made in her favour of "at least 10%".
The husband had initially submitted in his case outline that a two per cent adjustment in favour of the wife could be made. His counsel in final submissions indicated that a five per cent adjustment in the wife's favour was warranted.
On the contribution assessment indicated previously, the husband will receive or retain property worth $1,409,728 (excluding his superannuation) and the wife, $759,085 (excluding her superannuation) - based on the agreed value of the Suburb C property and without considering the costs associated with its sale. The parties' property entitlement also includes notional property. The family home will need to be sold, and the wife will need to find somewhere to live.
Taking into account the matters addressed above, I find that an adjustment of 10 per cent in the wife's favour is appropriate. This would see the husband receiving 55 per cent of the total pool and the wife, 45 per cent. Each party will retain their respective superannuation. The percentage difference between the parties (on the non-super pool) equates in real money terms to $216,881, in the husband's favour.
The wife will receive and retain property in the value of around $975,966, subject to the sale of the former family home (plus she will retain her superannuation). The wife presently holds property worth $406,460 (including addbacks of around $230,000 but exclusive of superannuation).
Each of the parties will also retain superannuation of around $200,000 ($210,000 for the wife and $218,000 for the husband). In effect, the outcome suggested by the parties sees the equalisation of the superannuation interests of the parties (the balances slightly favour the husband), after a long marriage, where each has had periods of absence from the paid workforce (for differing reasons). Those disrupted patterns of employment and concomitant contribution to superannuation has resulted in each having relatively modest superannuation reserves at this time.
If I have misunderstood the parties' intended approach to the superannuation property, I note that in the circumstances of a long marriage, given the matters addressed elsewhere in these reasons, and given the superannuation will not be available to the parties until they each satisfy the relevant eligibility criteria, some years in the future, each keeping equivalent superannuation would be a just and equitable outcome in any event for the following reasons.
The impact of the external financial contributions made on behalf of the husband do not weigh so fully to the superannuation interests of the parties. The superannuation balances of the parties are the product of their employment engagement and contributions made thereto and each can be seen as having indirectly contributed to the superannuation of the other. The husband's superannuation balance has been bolstered by funds from his family money and from the wife's redundancy payment. This has assisted the husband, making some allowances for his more disrupted employment periods and at times, lower income. In these circumstances, over this long marriage, I assess the contributions to the parties' superannuation as being equal.
I would not be inclined to adjust the superannuation pool pursuant to s 75(2) considerations, as superannuation is a different category of property (while it is treated as property under the Act, it has different characteristics than the other property, most clearly evident by the fact that it is not immediately available to either party and will only become available to them upon satisfying certain eligibility criteria). Each of the parties has certain vulnerabilities as to their future income, identified elsewhere, and while the wife has additional responsibility for the care of the child, the husband has fewer years remaining in the workforce before he reaches retirement age.
Each has an opportunity to secure additional superannuation as a product of their future workplace engagement. The husband may also have other resources (the E Family Trust) from which to direct additional funds in the future, particularly in circumstances where his exertion income is likely to be less than that of the wife.
I am satisfied that each party retaining their respective superannuation interests without adjustment between them is just and equitable. While the husband holds modestly more superannuation than the wife, the parties do not seek a splitting order to achieve equalisation, no doubt mindful of the additional administrative and legal burdens of doing so, over such a modest amount.

[117]

I am satisfied that the outcome, provided above, is just and equitable in all of the circumstances of this matter. As always, the outcome is a product of balancing the contributions made by and on behalf of each of the parties, over this long marriage, and taking into account the present and future circumstances of each of them. While the husband has contributed (or it has been contributed on his behalf) very substantial sums of money over the course of this marriage, the parties have a relatively modest asset pool remaining to be divided between them at this time. Acceding to the husband's claim risks over-weighting the financial inputs on his behalf and using them as a measure against which he would have other contributions assessed. Doing so risks failing to properly account for the significant other contributions made by both of the parties, at times in very difficult circumstances, for the duration of their union and since separation.
The future needs considerations favour adjustment in favour of the wife, as noted previously. The wife will remain responsible for the primary care of the parties' child, and I infer that given the income positions of the parties, the wife will likely receive modest child support from the husband. The wife will be compelled to find alternate accommodation for herself and the child.
Having conceded that the home will need to be sold, the wife's counsel sought that the sale not occur for 90 days from the making of the orders. The husband's counsel did not address the extra time as sought on behalf of the wife. I propose to accede to the wife's suggested time frame in those circumstances and taking into account that the wife continues to be responsible for the care of the child and will need sufficient time to find alternate accommodation.
Similarly, the wife sought orders which permitted her to retain the remaining funds invested in the Super Fund 1 account, given those funds were already in her name and provided some modest income to her. I propose to accede to that application.
I have largely adopted the orders proposed by the husband, given he had sought orders for the sale of the property (in default of a payment to him, should the wife have continued to seek the retention of the former family home).
The orders will otherwise provide for the sale process for the Suburb C property and division of the net sale proceeds. The amount each party will receive from the sale of the property will depend upon a variety of factors not known at this time. The ultimate payment to each of the parties will depend upon the net sale proceeds being combined with the balance sheet as found by me.
The orders I make provide for the way in which the net sale proceeds will be divided to ensure that the parties retain property in the division which I have determined as being just and equitable in all the circumstances of this matter. Less the value of the Suburb C property (which was ascribed, by way of agreement, a value of $1,425,000 and which value may be varied upon its sale and the costs necessitated by such), the net value of property available for division (exclusive of superannuation) is in the amount of $743,813.
The wife will retain the following property from the balance sheet as found by me:

Acantha & Acantha [2025] FedCFamC1F 782 (12 November 2025)

At a glance

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Judgment (121 paragraphs)

Legislation Cited (4)

Cases Cited (7)