Acone & Paget (No 2) [2025] FedCFamC1F 649 | Case summary

Acone & Paget (No 2) [2025] FedCFamC1F 649 | Case summary | Zoe

[57]

The property was said to have been transferred to the husband on 28 December 2022 by Mr CC. The property was said to be transferred in part satisfaction for the monies which had been provided to Mr CC's father, Mr DD, by the husband (Exhibit 35).
This is consistent with the messages from the husband to the parties' daughter in December 2022 and January 2023 about acquisition of property in Country H, especially the message of 4 January 2023.
The wife said that the husband and Mr DD were friends, and the husband had invested with him over the years. Two specific alleged investments were the subject of evidence in this case.
The wife said that the husband gave Mr DD $400,000 USD on or about 2017 and that those funds were returned - as discussed below.
Separately, the wife said that the husband provided Mr DD with $700,000 USD by way of two bank cheques, each for $350,000, withdrawn from the parties' joint bank account with EE Bank on or around 5 June 2020. The funds were provided with the intention that they would be applied to a property purchase. The husband said that while he accepts the cheques were drawn from his account, he asserts that this was done fraudulently and neither he nor any other person with whom he is associated received the funds.
The husband maintained that while there was considerable discussion about his being provided with a property or properties, he did not in fact receive the Town E property.
In evidence was an interim registration dated 19 October 2022 and irrevocable power of attorney - which provided for transfer of the Town E property from Mr CC (the son of Mr DD) to the husband. Mr FF gave evidence that having executed these documents, it was the husband's responsibility to register the title in his name. The husband would have had three years in which to register the transfer. Mr FF was asked about the fact that the title is not in the husband's name, and whether or not that fact is conclusive as to ownership. His evidence was that the documents which he had examined gave the entitlement to registration and hence passed ownership to the husband, notwithstanding his failure to register.
Having heard the evidence of each of the parties, I accept the wife's account for the following reasons:

[60]

The property is described as "my [City Q] apartment at [Suburb C]" in the husband's affidavit filed 2 June 2025. The parties agreed the Suburb C property was purchased off the plan in 2010. The parties did not agree about the purchase price. The husband said the funds for its acquisition came from gifts from his father. The wife said the purchase was funded by joint savings and a mortgage
In May 2024 a document was generated which indicates on its face the Implementation Department in Country H had given a licence to detain the Suburb C property as security for a debt owed by the husband to his brother Mr Y in the sum of $330,000 USD (Exhibit 21). The husband's position in the proceedings was that he did not have access to the property for the purpose of obtaining a valuation as it was "under seizure" by his brother.
However, inconsistently, when the husband adopted his trial affidavit on oath (in 2025), he said "this apartment is the only property I own it in [Country H] and should not be considered as part of the parties' assets available for adjustment." This is inconsistent with an assertion that the Suburb C property is not the husband's property.
The wife is in effect arguing that the detention or seizure is a sham between the husband and his brother to exclude the Suburb C property from the pool of assets available for adjustment as between the parties. The husband said the seizure arises out of a debt which he owes to his brother. Mr Y is not on affidavit in these proceedings.
The Court heard expert evidence about the value of the Suburb C apartment. The wife relied on an affidavit by Mr B. The husband had intended to rely on a report by another valuer but ultimately did not.
Mr B used 239 square metres (which included common area) in calculating market value. Mr B said that common area was generally included when valuing property in Country H. Mr B had access to photographs of the interior of the property and so was able to offer an opinion as to the quality of the improvements and their impact on value. Mr B said he used comparable sales data with a square metre rate of between $1,800 and $2,000 USD per square metre. Two new apartment buildings nearby were selling apartments at $2,500 USD per square metre. Apartments located 300-700 metres away from the subject apartment were selling for $3,500 USD per square metre. A building immediately adjacent, but two years older than the subject property, was selling apartments at $2,000 to $2,200 USD per square metre. He said he both lived and worked in the locality where the property was situated.
Mr B said there had been a recent increase of displaced persons from the South which had increased demand, and some stability had begun to emerge in the financial sector with a positive impact on real estate prices.
Mr B gave evidence that the apartment was valued at $454,100 USD.
The husband challenged Mr B's qualifications, but the husband's assertions do not permit me to conclude that he lacks the relevant qualifications or certifications. I accept the evidence of Mr B as being cogent and his opinion gained strength from the answers he gave in cross-examination.
As at the date of hearing the best evidence is that the husband owned the property, but his brother had obtained a "judicial distraint lien" which was registered on title. Given my findings about the validity of the purported loan between Mr Y and the husband, I am not persuaded that the "judicial distraint lien" is anything more than a device to remove the Suburb C apartment from consideration in these proceedings and I find it is the property of the husband.
The husband filed "written submissions" in accordance with an order made on 11 June 2025. The husband purported to give further evidence via this document dealing with "sale" of the Suburb C apartment. It was not permitted in circumstances where the husband had given evidence and been cross-examined, and it would not have been procedurally fair to permit him to give further unsworn "evidence" by way of written submissions. Even if I had permitted the evidence, the result would have been the same given my findings about the validity of the husband's alleged loan from Mr Y.

[72]

The husband submitted that he was indebted to his brother in the sum of $554,510.43. The husband said this indebtedness arose in circumstances where Mr Y loaned him funds commencing in 2018. In support of this conclusion the husband provided a document (Exhibit 12) which purported to be an undertaking to repay advances. It was not evidence of the provision of any advance.
The husband tacitly acknowledged that he had money in 2018 (and hence did not need a loan). The husband asserted he took the loan because his funds were earning a good rate of interest.
Inconsistently with the assertion of loans commencing in 2018, the husband's affidavit said his brother loaned him $50,000 for relocation costs in 2013.
The wife's case was that there had been no loan from Mr Y. The parties' daughter gave evidence that her uncle had a modest living, and it was the husband who would loan or gift money to her uncle. She also gave evidence of conversations with the husband to the effect that he would allege a loan as a means of reducing the assets available in property settlement proceedings. I accept her evidence on this topic which was not challenged.
The husband said that between March 2020 and early 2022, Mr Y transferred $400,000 USD ($600,000 AUD) predominantly to the wife's Westpac account and otherwise to his Westpac account.
The husband identified payments received by the wife in her Australia bank accounts as having been sent by Mr Y. The wife said the funds received by her via deposit to her Australia bank account were return of investment made with Mr DD (apart from where I am directly quoting from the evidence, I have adopted this spelling throughout the reasons). In total, the wife said that funds were $572,140 AUD.
The wife submitted that money was transferred from Country H to Australia in repayment of an investment with Mr DD, such payments being transmitted via third parties. She relies on a handwritten note in the husband's handwriting (a translated copy of which was in evidence) (Exhibit 37). The husband agreed that the document in handwriting is a document written by him.
The document is headed "[Mr DD's] Money 400,000". The handwritten note correlates with the deposits to the wife's Westpac account. I find that the transfers received by the wife were the parties' money and not a loan by the husband's brother.
The husband sent his brother, Mr Y, two amounts totalling approximately $251,000 AUD with $40,000 sent prior to a mediation, which occurred 6 October 2023, and $211,000 sent following that mediation.
I find that there was no loan to the husband from his brother and in making that finding, rely upon the unchallenged evidence of the parties' daughter about the financial circumstances of her uncle, the inconsistent evidence in the husband's case, the wife's credible explanation of how the parties' funds were transferred to Australia, and the husband's contemporaneous handwritten document which accords with the wife's account.
The wife said that the money sent to Mr Y was not owed to him and the husband's transfer had the effect of removing those funds from the assets available to the parties.
It follows that I find that the husband does not owe his brother any money, the money transferred by the husband to his brother ($250,000) was not owing and was the parties' funds, and the husband has not established that his brother has any basis for detaining the husband's interest in the Suburb C apartment.

[90]

The parties had modest assets at the commencement of their relationship in Country H.
The husband's affidavit said that he owned an apartment at City HH which had been purchased for him by his father and was worth $26,000 USD ($39,000 AUD).
The wife said the husband had purchased the City HH apartment subject to a mortgage. The wife said she began to assist with mortgage repayments at the commencement of cohabitation.
The difference in the parties' accounts about this initial contribution was not resolved by the evidence or during cross-examination.
Having regard to the substantial contributions of each party over a long marriage, the husband's ownership of an apartment and a car (on either view) does not weigh significantly in my assessment of their respective contributions.
The apartment at City HH was sold in 1995 or 1996. The parties disagreed about the sale price, but not significantly - with the husband saying $29,000 USD ($43,500 AUD) and the wife approximately $28,000 USD. The husband said the proceeds were applied to purchase of an apartment in Region GG, Country H for $90,000 ($62,000 USD). The husband says the difference was met by his father. The wife agreed that the proceeds were applied to the purchase of an apartment in Region GG.
In 1999 the husband sold the apartment in Region GG for about $65,000 USD according to the husband and according to the wife bought land in Town JJ for $62,000 USD.
In 2006 the husband said he bought land in Town KK (this would appear to be the same purchase as that described by the wife as Town JJ) for $60,000 ($40,000 USD) and spent $450,000 ($300,000 USD) on construction of a villa. He says his father loaned him half the amount necessary to pay for the construction which was not repaid.
The husband gave evidence that he received an inheritance during the relationship. The husband described this as an early inheritance - a gift from his father during his father's lifetime. The wife agrees the husband received a gift. While the parties differ as to the value of the gift neither relied on evidence as to value.
The husband said the inheritance was in the form of two apartments in a building at Town LL, Country H.
The wife said the funds from the husband's early inheritance were used to build a villa on land the parties had bought in Town JJ. I accept that the husband received an early inheritance which he applied to purchase of property.
When the property in Town JJ was sold in 2014, the wife said the sale price was $900,000 USD and that the parties' bank accounts in Country H held about $1,500,000 USD including those proceeds.
From those funds the husband invested money with his friend, Mr DD, in 2017.
The husband made the majority of financial contributions from his income. The wife was in paid work and, while the husband submitted that she retained those earnings for her own use, I find that she applied them to the expenses of the household. The wife was primarily responsible for care of the parties' three children. Between 2013 and 2018 the parties lived in different countries and each continued to make contributions in their respective spheres.
In about 2010 the husband bought the Suburb C property. The husband and wife agree that the property was purchased off the plan. The wife said the purchase price was $600,000 USD and the parties took a $300,000 USD mortgage. The husband said it cost $325,000 USD and was funded by sale of an apartment which his father had gifted to him and a further advance from his father. The wife said the parties took possession in 2013 and proceeded to attend to all the tasks necessary to make the apartment habitable. The wife said that the husband was in the United States of America ("USA") during this period and she visited Country H from Australia to oversee construction. The wife said the costs of construction were met from the parties' joint funds including savings and her salary. There is no independent evidence about the purchase price or how it was funded.
In June 2014 the parties purchased the Suburb O property for $855,000. They obtained a mortgage for $500,000. The balance was funded from the parties' savings.
In mid-2019 the parties purchased MM Street, Suburb NN NSW for a purchase price of $446,000. The property was sold in mid-2022 for $1,560,000 and settled a short time later. The parties received the post-settlement sum of $1,543,108.67. The net proceeds were paid as follows:

[95]

Against the examples set out above, the husband says "[Ms Acone] was not subjected to family violence when we were together." Given these two mutually exclusive positions, it is necessary for me to determine whether the events set out in the wife's affidavit occurred or whether she has made serious allegations against the husband absent foundation. The wife was not cross-examined about the incidents set out above, except the incident in 1990.
I was able to observe the parties in the witness box during cross-examination. The wife's evidence was unchanged in cross-examination. The parties' daughter gave evidence of her own observations which supported the case advanced by the wife. Her evidence was not challenged and I accept it.
The wife's affidavit sets out examples of verbal abuse which she says she experienced from the husband. It is in similar terms to the husband's WhatsApp messages which are in evidence and discussed below. I accept the husband was verbally abusive to the wife. The verbal abuse was derogatory in nature and caused fear. The wife said "name calling" occurred at least once a week while they were in separate countries, and once or twice a week after the husband moved to Australia. The parties' daughter gave evidence which confirmed the verbal abuse had occurred.
On 21 September 2017 the husband and wife had an exchange via WhatsApp. From the context, the husband was aggrieved that the wife had withdrawn $5,000. There was a further exchange on 25 September 2017. The language in the husband's messages is derogatory in nature and repeated. I am satisfied that they meet the definition of family violence.
The wife said that on 17 November 2022 (while the parties were in Country H) at about 11.00 pm, the parties had an argument after which she slept in a separate room. The following day she spent at the home of her sister. She said that at 7.30 pm on 18 November 2022, the husband phoned her and asked if she was returning home. The wife asked the husband to come to the home of her sister. The wife said the husband attended and drank tea with the wife, her sister and her two brothers. At about 8.45 pm, the wife said her brothers left the home of her sister and she and the husband began to argue culminating in the wife telling the husband that they should separate. The parties left the home of the wife's sister and went to their home where the argument continued. The wife records the husband as having said in language of Country H:

[97]

The wife said she ran into her daughter's bedroom and closed the door and began to record the husband on her phone. She then sent him the recording. The wife said the husband responded: "Open the door or I will shoot through it." It was not controversial that the husband owns many weapons. The wife was fearful that the husband would in fact shoot through the door, so she opened it and said she saw the husband with a gun in his hand. The wife said the husband held the gun at her head and made her transfer $10,000 from her bank account ending No...43 to the husband's account ending No...35.
During the incident the husband rang Mr OO, the wife's brother-in-law and during that conversation, the wife said she yelled out "He is trying to murder me, please come help me or you will find me dead!" The wife said that the husband responded by using his fists to strike her, pushing her and kicking her. She said she fell to the floor and hit her head on the bedside table. The wife's siblings came to the parties' apartment building but were not able to gain access to the apartment. The wife said that her youngest brother spoke to the husband and the husband said he would release the wife on condition that she not take a share of his assets. The wife said the husband threatened her family. She left the parties' apartment after midnight and went to her sister's home. She left Country H two days later.
On 18 November 2022 the wife took photographs of the injuries to her face and arm which were date, time and location stamped. She took further photos on 20 November and on return to Australia in November 2022. The photographs show bruises to the arm; they also show a large bruise to her eye socket and surrounding face which changed colour over the period for which the photos have been produced (Exhibit 33). The husband said in cross-examination that the photographs could have been faked.
The wife was collected from the airport by her daughter in November 2022 who saw "visible bruises under her eyes, on her arms and legs, her head, her nose and shoulders." Following her return to Australia, the parties' daughter discussed her pain and the impact of the injuries on her day-to-day activities.
In the husband's affidavit he denied that he was violent to the wife at all and specifically that he was violent to the wife on 18 November 2022. He said that he was the victim of extreme violence on that day perpetrated by the wife's family.
The wife's brother, Mr PP, gave evidence and was cross-examined. His account confirmed that of the wife. His denials of the husband's version of the evening of 18 November 2022 were adamant and credible. He gave evidence that he received a call from his sister Ms QQ to go the apartment of the husband and wife because the husband was "hitting her badly".
I accept that the wife's brothers attended that night and the husband told them to leave or he would shoot them.
I had the benefit of hearing the cross-examination of the husband and wife and the wife's brother. The wife maintained her account in response to question put by counsel for the husband. The husband offered no explanation for the wife's injuries in his affidavit (and when challenged in cross-examination claimed the wife's brothers were responsible). The wife's brother was not asked about this in cross-examination. I note this explanation was inconsistent with the husband's evidence in cross-examination that the photographs could have been faked. I accept the injuries occurred in the manner she described in the wife's evidence.
On 14 September 2023 the husband sent a message to the parties' daughter. I consider that its content is threatening. While the husband's messages are not a threat that he will inflict violence, they convey a threat that others will kill the wife (and her sister) to avenge the wrongs which have been occasioned to the husband.
The wife has received medical attention for pain related to her neck, shoulder and arm. In seeking treatment, she has reported that her pain became worse "after she was hit on the left side of her head." (Exhibit 3)
I accept the evidence in the wife's case that the husband's conduct made her upset and fearful and impacted on her contributions in so far as it would have been more difficult to provide care to the parties' children and attend to household tasks with the frequency of the verbal abuse, and the fear induced by both the physical and verbal abuse. Consistent with the observations of Aldridge J in Martell & Martell [2023] FedCFamC1A 71; (2023) 66 Fam LR 650 at [25] I find that in this case_:_

[101]

I will turn first to consider those matters which appeared in the joint balance sheet under the heading 'Addbacks'.
Between 18 November 2022 and 31 July 2023, the husband received all the rental income from the Suburb M property (as opposed to half the rental). This has been quantified by the wife in the sum of $4,597.44. The documents from the rental agent (Exhibit 13) do not clarify the situation. Given the husband did not have employment at this time, I am not satisfied that this is a matter which warrants adjustment.
After separation the wife paid mortgage payments for the Suburb O property in the sum of $22,330. The wife has occupation of the property. The wife has access to the redraw facility to fund the shortfall. I am not satisfied that this is a matter which warrants adjustment.
The husband transferred funds from his Westpac account. The wife said the transfers totalled $350,000. I am not persuaded that the husband's transfer of $251,000 to his brother was in satisfaction of a loan to his brother, as discussed above. Accordingly, this use of the parties' funds does warrant consideration when it comes to adjusting the parties' interests pursuant to s79(5)(d) of the Act. The remainder of the transfers are easily explicable by the husband's need to meet his living expenses, and I do not propose to make any further adjustment. I am further persuaded of the appropriateness of this course by my determination not to have regard to those payments which the wife received towards legal fees and living expenses as discussed above.
In the same vein, I have found that the husband alienated his interest in the Suburb F property such that it is registered in the name of his brother. This apartment was valued at $230,128.29 AUD. This is a significant asset no longer in the pool of assets available for adjustment and must figure in my consideration of an appropriate adjustment under s79(5)(d).
The husband did not attend to payment of single expert fees - which were met by the wife. The husband's share is $1,772.67. I will make a costs order which provides the wife is paid those monies.
The husband asks the Court to find that between 2016 and August 2023, the wife transferred funds from two Westpac Choice banks accounts in her name ending No...95 and No...44 totalling $67,803 and $38,746. These represent transfers to the parties' daughter commencing six years prior to the parties' separation. There is no dispute that the parties met expenses for their daughter when she was studying, including university fees for undergraduate and postgraduate expenses, rental fees for university accommodation, parking, living expenses, travel and health costs. In addition, the parties' daughter would sometimes pay expenses on behalf of her parents for which she was reimbursed. Those are not amounts which require consideration when making an assessment of matters under either s79(4) or s79(5) of the Act.
The husband asks that the Court consider withdrawals made from the Wife's Choice No...95 account both prior to separation in the sum of $7,250 and after separation in the sum of $54,998. The bank statements for that account between 17 June 2022 and 16 June 2023 are in evidence (Exhibit 7). The evidence does not establish the quantum but even had it, it is not a matter which requires consideration as a premature distribution of the parties' assets. Withdrawing funds from a bank account would be expected in the ordinary course of meeting day-to-day expenses. In a similar vein, the husband asked that the Court consider monies said to have been withdrawn by the wife from a Westpac account ending No...95 and a Westpac Esaver account ending No...12. Collectively those withdrawals are said to total $11,670. Similarly, the husband submitted a purchase by the wife of $4,330 on 24 October 2022 identified as being a purchase from "[T Business]" should be taken into consideration. I accept the wife's bank account shows such a purchase. None of the matters raised by the husband warrant consideration of an adjustment in his favour because of the wife's routine spending and what would appear to be a one-off purchase of an item or items from a fashion store.
The husband sought that money withdrawn from the wife's bank account in Country H ending No...00 in the sum of $15,512 be taken into account. It is not appropriate for the Court to effectively conduct an accounting in respect of parties' day-to-day expenditure either prior to or after separation. I do not propose to have regard to these withdrawals when considering whether to make an adjustment.
On 5 January 2024 the husband said he transferred $3,165 to the wife inadvertently. In circumstances where the husband had been ordered to pay mortgage payments and failed to do so, it would make no sense to have regard to a payment which he made in error and which the wife retained.
The husband asked that the Court take into account money which was earned by the wife in Country H while she was in Australia which he quantifies as being $123,226.66. According to Exhibit 14, in January 2019 an amount of 3,354,000 Country H currency was credited to a bank account in the wife's name. It is not clear that those funds presently exist. They were deposited more than 3.5 years prior to separation and the wife deposed to utilising funds for expenses (including those of the children) while in Country H.
The husband said that two days prior to separation, the wife took cash in US dollars with equivalent value in Australian dollars of $11,500. In circumstances where the husband has plainly dissipated funds which existed at separation, I do not propose to have regard to this sum.
The husband said that the Court should have regard to the rental which could have been received by the parties from lease of the Suburb O property between March 2023 and March 2024 - which the husband quantifies as $26,000. I reject this argument. The wife was living in the property with at least one of the parties' children and paying the mortgage. No adjustment is warranted.
The wife is 61 years of age.
The husband is 63 years of age. The husband retired from his role as a Country H representative in the USA in late 2017.
The wife currently works in the research field and earns $1,269 per week.
The husband is not presently working. In late 2023 the husband incorporated a company (X Pty Ltd). The husband wrote to the wife's solicitors on 13 March 2025 and said "...I have established this company after the separation in order to start working in it after finishing the trial...". It is not clear what work the husband intends to undertake because he gave no evidence. While he suggested at trial that he would be unlikely to work, he did not explain what had occurred between his statement in March and the hearing (which began in June) to change the position expressed in March. His affidavit said "because my back situation became worst [sic] I have decided to cancel [the Company]". The husband gave no specific evidence about any medical incident or issue arising between March 2025 and June 2025. Accordingly, I find that the husband intends to work in some capacity at the end of these proceedings. I accept that his age is a limit to any expected earning capacity.
The husband is in receipt of a pension from Country H. He provided a statement for his pension as at March 2025 (Exhibit 23). It would appear that the monthly net amount which the husband receives is 76,960,000 Country H currency. The husband estimated it is about $215 USD per week.
I have determined that the husband should retain the parties' joint funds in the W Bank account. I must take into account that he may encounter difficulties if he proposes to withdraw these funds other than as periodic amounts.
It is possible (based on the WhatsApp messages from the husband to the parties' daughter) that the husband is also in receipt of rental income from property in Country H. He may also have access to the $400,000 USD transferred from the R Bank account.
Each party gave lay evidence about their own health. The wife estimated that her health expenses were about $100 per week and her pharmaceutical expenses about $80 per week. The medical evidence is that the wife will require surgery. The husband gave evidence that he takes medication for anxiety and depression.
Section 79(5) of the Act requires consideration of the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in s 79(5) of the Act. I have set out my factual findings concerning family violence above.
The wife commenced attendance upon a psychologist in Australia following what I have found to be a serious assault by the husband in Country H on 18 November 2022. She deposed to having a continued fear of the husband, which fear presents as reasonable in the circumstances. She will have ongoing expenses related to her attendance on the psychologist.
Given the parties' respective age, their health and their work history, it would not be anticipated that either party would be in receipt of personal exertion income for any substantial period after the making of these orders.
The wife has a very modest superannuation entitlement.
I have considered each of the relevant matters as set out above and the one which is most significant is the husband's transfer of $251,000 AUD and the Suburb F property to his brother. I also take into account that the wife's ongoing psychological treatment is connected with her experience of the husband's violence. Given the net asset pool is about $4 million, I propose to make an adjustment to the wife's contribution-based entitlements of 15% to recognise these circumstances.
Having regard to the matters which I am required to consider in ss 79(4) and 79(5), I am of the view that the order which would be just and equitable is one which sees the husband retain the assets in Country H, his personal possessions and bank accounts; and the wife retain the assets in Australia and her personal possessions, bank accounts and superannuation.

Acone & Paget (No 2) [2025] FedCFamC1F 649 (18 September 2025)

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Judgment (103 paragraphs)

Legislation Cited (2)

Cases Cited (1)