Atkins v Hunt

FedCFamC1F|2025-08-22|Before: Johns J

Brown & Brown [2007] FamCA 151;

Drysdale & Drysdale [2011] FamCAFC 85

Maroney & Maroney [2009] FamCAFC 45

Mitchell &Mitchell (1995) FLC 92-602

Oriolo and Oriolo [1985] FamCA 54; (1985) FLC 91-653

Schweitzer & Schweitzer [2012] FamCA 445

Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126; (2011) FLC 93-466

Zschokke & Zschokke [1996] FamCA 79; (1996) FLC 92-693

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

That as and from 1 June 2024 until further order the respondent pay or cause to be paid to the applicant periodic spousal maintenance in the sum of $1,500.00 per week as follows:-

(a) Within 30 days the respondent pay or cause to be paid to the applicant the sum of $94,500, being periodic spousal maintenance for the period 1 June 2024 to 16 August 2025 inclusive (being a total of 63 weeks) at $1,500.00 per week;

(b) As and from 25 August 2025 and weekly thereafter the sum of $1,500 per week

such payments to be made via electronic funds transfer into a bank account nominated by the applicant.

Pursuant to Section 117(2) of the Act within 7 days of any and all future payment(s) by or on behalf of the respondent in relation to these proceedings in payment of:

(a) Accounts rendered by the respondent's solicitors; and/or

(b) Accounts rendered by the respondent's barristers; and/or

(c) A request made by the respondent's solicitors to hold funds in trust on behalf of the respondent, including costs on account of anticipated counsel's fees (excluding for the payment of any single expert fees for which the respondent is liable pursuant to court orders)

the respondent shall pay or cause to be paid the same sum of money to the trust account of Jag Lawyers, the applicant's solicitors, for payment of the applicant's legal costs and disbursements in these proceedings.

Within 14 days the respondent do all such acts and things as may be necessary to cause the property at TT Street, Suburb UU to be valued by a jointly appointed expert valuer and for such purposes:

(a) Within 48 hours the applicant to cause her solicitors to write to the respondent's solicitors, nominating three valuers;

(b) The respondent to select one of the three nominated valuers; and

(c) The respondent to pay all costs of the said valuation at first instance with the ultimate liability for such costs to be determined by the trial judge.

To the extent that he has not already done so, within 21 days of the date of these orders the respondent do all such acts and things as required to make full and frank disclosure by providing copies of the following documents to the applicant's solicitors:

(a) His personal tax return and assessment for the financial year ending 30 June 2024;

(b) For the period 1 July 2023 to the date which is 14 days prior to the date of compliance with this order statements for the following held in his name personally or held jointly with any other person:

(a) Bank accounts;

(b) Credit cards; and

(c) Loans.

(c) Documents which evidence:

(a) Receipt of the fringe benefits referred to at item 14 of his Financial Statement filed on 24 February 2025 ("respondent's FS");

(b) The source of payments made for the benefit of X referred to at item 34 of the respondent's FS;

(c) The source of payments made by way of spousal maintenance for Ms VV referred to at item 34 of the respondent's FS;

(d) The income tax owing referred to at item 48 of the respondent's FS including but not limited to a printout from the Australian Tax Office portal;

(e) The loans referred to at item 50 of the respondent's FS;

(f) The settlement payment due to Ms VV referred to at item 53 of the respondent's FS;

(g) The personal guarantees for loans and lines of credit referred to at Part O of the respondent's FS;

(h) The calculation of damages sought by the respondent as referred to at Part O of the respondent's FS; and

(d) A copy of the Binding Financial Agreement referred to at item 34 of the respondent's FS; and

(e) Any other document in the respondent's power possession or control relevant to the issues in dispute in these proceedings and/or any other document upon which the respondent intends to rely.

Any application for costs arising from these interim proceedings be dealt with on the papers as follows:-

(a) The party seeking costs to file and serve submissions in respect of that application within 14 days; and

(b) The respondent to such costs application file and serve any submissions in response within 14 days thereafter.

All extant interim applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Eide & Yoxall has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

By Amended Application in a Proceeding filed 13 March 2025, the applicant, Ms Eide, sought orders for interim spousal maintenance, part-property settlement and litigation funding, valuation of identified property and disclosure. The relief sought by her was updated and amended by the Minute of Proposed Order annexed to her written submissions filed 8 May 2025 (Annexure A).
In summary, the applicant sought the following relief:

(a) That the respondent pay to her the sum of $313,000 by way of capitalised spousal maintenance for the period 12 March 2021 to 19 March 2025 inclusive, such maintenance to be paid at the rate of $1,500 per week;

(b) Interim periodic spousal maintenance in the sum of $1,500 per week;

(c) Pursuant to s 79 and s 80(1)(h) of the Family Law Act 1975 (Cth):-

(i) That the respondent pay to the applicant's solicitors by way of part-property settlement the sum of $500,000;

(ii) In the alternative, that the respondent pay to the applicant's solicitors the sum of $200,000 by way of part-property settlement and the sum of $300,000 by way of litigation funding;

(iii) In the alternative, a "dollar-for-dollar" order by way of litigation funding in respect of future payments made by the respondent to his lawyers;

(d) That the respondent do all acts and things to enable valuation of the property at TT Street, Suburb UU; and

(e) That the respondent make full and frank disclosure of identified documents.

By his Amended Response to an Application in a Proceeding filed 13 March 2025, the respondent, Mr Yoxall, sought that the applicant's previously filed Applications in a Proceeding be dismissed. That position was confirmed in the Supplementary Written Submissions filed on his behalf on 6 May 2025 in which it was stated that he sought orders as follows:-

(a) The Applicant's Application in a Proceeding filed 16 July 2024 and Amended Application in a Proceeding filed 13 March 2025 be dismissed.

(b) Such further or other Order as this Honourable Court deems appropriate.

These are my Reasons for Judgment with respect to those applications.

The applicant was born in 1987 and is aged 38 years. She resides in Melbourne and works casually as a healthcare professional.
The respondent was born in 1960 and is aged 65 years. The respondent lives in Region H and is a director of F Pty Ltd.
The shares in F Pty Ltd are held by WW Pty Ltd as trustee for the WW Trust and YY Pty Ltd as trustee for the YY Trust. Both the WW Trust and the YY Trust are discretionary trusts in which the respondent is named as a specified beneficiary. The guardians and appointors of both trusts are Mr N and Mr MM, employees of the F Group. A central issue in these proceedings is the question of whether the respondent has effective control of those trusts and therefore, the F Group. Until such time as there is a testing of evidence at final hearing, that issue cannot be resolved.
The applicant and the respondent were in a de facto relationship which ceased in December 2020.
There is one child of the relationship, X, who was born in 2018 and is aged seven years. X lives with the applicant in rental accommodation in Melbourne.
The applicant commenced proceedings in March 2021, seeking both parenting and property orders. The respondent denied ever having been in a de facto relationship with the applicant and accordingly sought that the applicant's application for financial relief be dismissed for want of jurisdiction.
The hearing of that threshold issue proceeded before the Honourable Justice Williams over eight days, with judgment delivered on 16 May 2024. Her Honour found that a de facto relationship existed between the parties from March 2017 to December 2020.
That judgment was the subject of appeal by the respondent.
On 29 October 2024, orders were made by the Full Court allowing the appeal. In addition, an order was made that:-
1. Order 1 made on 16 May 2024 is set aside and in lieu thereof it is declared pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties, ending in December 2020.
That judgment ended the controversy as to the Court's jurisdiction to entertain the applicant's application for financial relief; there is no question as to the Court's power to determine those issues.
Accordingly, the applicant now seeks to proceed with her applications for financial relief.

The applicant relied upon the following material:-

(a) Applicant's written submissions filed 8 May 2025;

(b) Documents identified at paragraph 2 of the applicant's written submissions, being:-

Affidavit of the applicant filed 9 June 2024;

Affidavit of the applicant filed 8 November 2024;

Financial Statement of the applicant filed 19 December 2024;

Affidavit of the applicant filed 13 March 2025 ([1], [2] and [21] - [64]);

Affidavit of Mr ZZ filed 13 March 2025;

Affidavit of the applicant filed 28 April 2025;

Affidavit of the respondent filed 2 September 2021 ([7]);

Affidavit of Ms AC filed 22 May 2023;

Respondent's Costs Notice filed 23 June 2023;

Respondent's Costs Notice filed 1 March 2024;

Respondent's Costs Notice filed 14 June 2024;

Respondent's Costs Notice filed 19 November 2024;

Respondent's Costs Notice filed 17 March 2025;

Respondent's Submissions in Response to Applicant's Claim for

(c) Documents tendered during the hearing, being Exhibits A-1 to A11.

The respondent relied upon the following documents:-

(a) Respondent's supplementary written submissions filed 6 May 2025;

(b) Documents identified at pages 1 and 2 of the respondent's written submissions, being:-

Respondent's Summary of Issues filed 19 November 2024 (paragraphs 15 - 26);

Orders by the Honourable Justice Johns dated 20 November 2024;

Response to an Application in a Proceeding filed 20 December 2024;

Affidavit of the respondent filed 20 December 2024;

Financial Statement of the respondent filed 24 February 2025;

Affidavit of the respondent filed 24 February 2025;

Amended Response to an Application in a Proceeding filed 13 March 2025;

Affidavit of the respondent filed 14 April 2025;

Affidavit of Mr N filed 14 April 2025; and

(c) Documents tendered during the hearing, being all annexures to affidavits of Mr Yoxall filed 20 December 2024, 24 February 2025, and 14 April 2025, as well as annexures to the affidavit of Mr N filed 14 April 2025.

The matter was conducted by way of oral submission and each party relied upon the material referred to above and their counsel's oral submissions. Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested. Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue.
The matter was heard on 12 May 2025 and at the request of the respondent was relisted for further mention on 3 June 2025. At that mention hearing senior counsel for the respondent sought leave to tender additional documents in support of his client's case. Exhibits R-2 to R-4 inclusive were tendered on behalf of the respondent, without objection, at that mention hearing. In addition, that day I made an order reserving the costs of all parties.
By the conclusion of the hearing, the applicant had tendered some 272 pages of documents in addition to the 15 documents identified and relied upon by her. For his part, the respondent relied upon all documents annexed to three of his affidavits and the affidavit of Mr N, which totalled some 288 pages. Of the hundreds of pages of documents filed or tendered by both parties, the Court was taken to few during the course of submissions.
That approach adopted by the lawyers for each party was unhelpful; seemingly it was the expectation of those lawyers that the Court should undertake the task of identifying which of the hundreds of documents relied upon by them is relevant to the determination of the issues in dispute. In my view, such expectation, particularly in the context of an interlocutory hearing, where the evidence is untested and there can be no findings with respect to disputed facts, is unreasonable and misguided. Plainly, it is not for the Court to do the work of those representing the parties.
Those issues were compounded given the repeated reference, both in written and oral submissions by counsel, to the maintenance and property provisions of the Act, as they related to married parties, rather than those applicable to a de facto relationship. Again, this did not assist the Court.

The applicant seeks orders for interim spousal maintenance and capitalised arrears of spousal maintenance in the terms referred to earlier.
Section 90SF(1) of the Family Law Act (Cth) ("the Act") provides that:-

(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:

(a) only to the extent that the first‑mentioned party is reasonably able to do so; and

(b) only if the second‑mentioned party is unable to support himself or herself adequately whether:

(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or

(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or

The threshold issue in considering a claim for spousal maintenance is whether the applicant is unable to support herself adequately. The Full Court in Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 at [161] stated as follows:-

At a general level, we adopt the propositions identified by O'Ryan J as emerging from the authorities, in short:

The word "adequately" is not to be determined according to any fixed or absolute standard.

The idea that "adequate" means a subsistence level has been firmly rejected.

Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties' standard of living may have to be lower if financial resources are insufficient to maintain that standard.

In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.

It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.

However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.

The principles that apply to the consideration of spousal maintenance following the breakdown of a marriage also apply to a de facto relationship.
If the applicant is able to demonstrate an inability to adequately support herself, the capacity of the respondent to meet a spousal maintenance order must then be considered.
Section 90SE of the Act provides that the Court may make such order as it considers proper for the provision of maintenance; in exercising jurisdiction under s 90SE the Court shall take into account only the matters referred to in s 90SF(3) of the Act.
The determination of the question of whether an applicant for spousal maintenance can support themselves adequately is not determined by reference to any fixed or absolute standard but by reference to the matters identified in s 90SF(3) of the Act (per Mitchell &Mitchell (1995) FLC 92-602).
As to the determination of an application for interim spousal maintenance, the Full Court observed in Redman & Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 as follows:-

...Another consequence is that on an application for interim maintenance the Court conducts "not as final or exhaustive hearing as would be the case if one were hearing the matter finally"...The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of s 97(3), the Court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under s 83.

Is the applicant able to adequately support herself?

The applicant is employed on a casual basis as a healthcare professional. In her Financial Statement filed 19 December 2024, the applicant deposes that she has an estimated income from that employment of $1,400 gross per week. In addition, she deposes to receiving child support in the sum of $400 per week.[1]
At Part G of her Financial Statement, the applicant deposes to having total personal expenditure of $4,847.44 per week, representing a shortfall of approximately $3,047 per week between income and expenses. At Part N of her Financial Statement, the applicant deposes that of her average weekly expenses, approximately $1,585 relates to expenses for the parties' child. Deducting those child-related expenses from the total weekly expenditure, the applicant's weekly expenses total approximately $3,262. Accordingly, the weekly deficit between the applicant's income (excluding child support) and her personal expenditure totals approximately $1,862 per week.
It was submitted on behalf of the respondent that the applicant has not demonstrated a need for maintenance. Further, it was submitted on his behalf that the applicant's earning capacity is "underutilised" and that she could accommodate herself in comfortable and appropriate but less expensive rented premises, if she chose. That submission was not expanded or developed by senior counsel for the respondent during oral submissions.
The applicant has the primary care of the parties' only child who is aged seven years and attends a private school in Suburb AB. The applicant and the child live in rental accommodation also in Suburb AB. The applicant deposes that she pays rent of $925 per week for that accommodation. I do not consider it to be unreasonable for the applicant to live with the child proximate to the child's school, particularly in circumstances where she works and has little practical support for the child's day to day care from the respondent. That view is bolstered in circumstances where no particulars were advanced on behalf of the respondent as to the proposed location and cost of the alternative and less expensive accommodation allegedly available to the applicant.
The reality is that the applicant is almost solely responsible for the child's care, particularly in circumstances where the respondent lives interstate and where the applicant's immediate family, who might otherwise provide additional support in her caring responsibilities for the child, are based in Country Q. I am satisfied that those caregiver responsibilities inevitably impact upon the applicant's capacity to work and also support the applicant's claim as to the appropriateness of her having accommodation near the child's school.
The applicant deposes that she works as often as she is able, which is usually around 40 hours per week.[2] The respondent does not challenge that evidence. Having regard to the applicant's parenting responsibilities, and her unchallenged evidence as to her hours of employment, I do not accept the respondent's submissions that her earning capacity is "underutilised".
Other than the assertion that the applicant could accommodate herself in less expensive accommodation, the applicant's expenses, as detailed in her Financial Statement, were not challenged. Having regard to the applicant's evidence as to her income and expenses, coupled with her evidence as to her parenting responsibilities and her work commitments, I am satisfied that the applicant's claimed expenses are reasonable and that, having regard to the shortfall between her income and those expenses, that she is unable to adequately support herself in accordance with the provisions of s 90SF of the Act.

What are the applicant's reasonable weekly needs?

The applicant seeks periodic spousal maintenance in the sum of $1,500 per week.
I have found that there is a shortfall between the applicant's income and expenses of $1,862 per week.
Other than the criticism of the rent paid by the applicant, there was no serious challenge by the respondent to her weekly expenses. The respondent adduced no evidence in support of his contention that the applicant should be paying a lesser amount in rent. In circumstances where the parties have enrolled the child to attend a school in Suburb AB, I do not consider it to be unreasonable for the applicant and the child to live proximate to that school, particularly having regard to the applicant's work commitments.
Accordingly, I am satisfied that the applicant's reasonable weekly needs are $1,862 per week.

What is the respondent's capacity to pay spousal maintenance?

The respondent asserts that he does not have the capacity to pay spousal maintenance. That contention is challenged by the applicant. It is her case that the respondent has been less than frank with the Court as to his true financial position.
In support of that submission, the applicant relies upon the respondent's claims as to his financial circumstances made in material filed on his behalf earlier in the proceedings. For example, in his affidavit filed 2 September 2021 the respondent deposed as follows;-

I admit that I am a wealthy man of means...it is difficult to describe with precision my income or wealth[3]

Further, in submissions filed 12 July 2024 on behalf of the respondent with respect to the applicant's costs application related to the threshold hearing, it was submitted that:-

It is acknowledged however that [the respondent] is a wealthy man of means.[4]

In the first Financial Statement filed on behalf of the respondent, he deposed every value in respect of his interests to be "UNKNOWN".[5]
It was only in his affidavit filed 20 December 2024 that the suggestion that the respondent does not have the means to meet financial orders was raised. That affidavit was filed in response to the applicant's current application for financial relief.
In his Financial Statement filed 24 February 2025, the respondent deposes that he has income totalling $7,966.27 per week. Further, he deposes that his total personal expenditure is $9,074.58 per week.[6] However, a closer analysis of the respondent's financial circumstances indicates that his claimed personal expenditure bears no relationship with expenses actually paid by him from his income. For example, the respondent's taxable income for the year ended 30 June 2023 was approximately $349,674. Yet, the expenditure on his credit cards for the same year totalled approximately $1,065,000. In addition, it was conceded by senior counsel for the respondent that those credit card expenses were met in their entirety by the F Group.
In addition, it was conceded that the expenses met by the respondent for the parties' child are also paid by F Group. Indeed, at [47] of his affidavit filed 14 April 2025, the respondent deposes that he utilises the F Pty Ltd bank account to meet his personal expenses. He further deposes that when he does this, monies drawn on his behalf are added as a debit to his loan account with F Pty Ltd.
It was submitted on behalf of the applicant that there appears to be no limit or accountability in respect of the respondent's drawings from the F Pty Ltd accounts. In support of that submission, reliance was placed on Exhibit A-1, being the s 50 Evidence Act summary produced in relation to payments made by F Pty Ltd in respect of the respondent's credit cards. That document discloses that for the period between 11 July 2022 and 22 November 2024 a total of $2,295,000 was paid by F Pty Ltd towards the respondent's credit card expenses.
In addition to his personal expenditure, F Pty Ltd meets all of the respondent's legal costs with respect to these proceedings. The Costs Notice filed on behalf of the respondent on 9 May 2025 states that "the Respondent's source of funds [is] from [F Pty Ltd]."
The respondent's contract of employment with F Pty Ltd, dated 29 July 2014, was tendered during the hearing (Exhibit R-2). That document provides that the respondent will be indemnified by F Pty Ltd for "all legal costs that may incur or be incurred by [him] that may be of detriment to the company." Senior counsel for the respondent confirmed during his submissions that it is pursuant to that condition of employment that the respondent's legal fees in these proceedings are being met. It follows that to the extent that the respondent is indemnified, he is not required to apply his personal income towards legal costs in these proceedings.
The respondent's credit card statements for his AD Bank and Westpac credit cards were tendered during the hearing (Exhibits A-10 and A-11). Those statements disclose that the respondent meets the majority, if not all, of his day-to-day living expenses with those credit cards. For example, his AD Bank card ending ...75 discloses expenditure by him at restaurants, homewares stores, pharmacies, supermarkets, accommodation providers, toy stores and entertainment. The cards are also utilised to make payments for various medical and health services. For example, payments are made by him to AE Medical Clinic in Suburb AF, AG Physiotherapist in Suburb AH, AJ Hospital in Suburb AK and Dr AL. It also appears that the respondent is purchasing luxury items using those cards.
A review of the respondent's Westpac Mastercard (...21) statements paints a similar picture. That card is applied towards a range of living, entertainment, travel and personal expenses. Again, there is significant expenditure by the respondent on luxury and fashion goods. The respondent's expenditure on those credit cards appears to be unlimited. It was conceded by Senior Counsel on behalf of the respondent that the respondent's credit card expenses, which include his personal expenses, are met by F Pty Ltd.
As a result of that concession, I am satisfied that the claimed expenses of the respondent as disclosed in his Financial Statement filed 24 February 2025 must be treated with caution. The respondent there discloses at Item 30 that he meets credit card payments in relation to AD Bank of $548.83 per week and in relation to Westpac of $868.42. In light of the concession made by senior counsel for the respondent, that evidence is plainly misleading.
At Part N of his Financial Statement filed 24 February 2025, the respondent claims expenditure of $4,530 per week. That expenditure includes claims for food, household supplies, medical, dental and optical, children's activities and the like. However, given that those expenses are charged by him to the credit cards to which I have earlier referred, I do not accept that the respondent is meeting those claimed expenses from his income. Rather, they are expenses charged to the identified credit cards and paid for by F Pty Ltd.
It was submitted by senior counsel for the respondent that the payments made by F Pty Ltd to the respondent's credit card expenses are recorded as borrowings from the Group. In my view, that is not an impediment to an interim spousal maintenance order. That this is so was confirmed by Coleman J in Maroney & Maroney [2009] FamCAFC 45 where he stated at [56]:-

Once a party establishes an entitlement to interim spousal maintenance and such entitlement is quantified in accordance with that spouse's reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.

Further, Colemen J expanded that view in Drysdale & Drysdale [2011] FamCAFC 85 where he stated at [40]:-

It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst different to urgent spousal maintenance pursuant to s 77 of the Act, orders for interim maintenance are as of their title implies. The Court hearing and determining financial proceedings between the parties on a final basis, as clearly will occur in this case in the absence of any intervening settlement, has abundant power to accommodate within its final orders, whether by way of settlement of property or spousal maintenance, any anomalies which full agitation of the disputed issues of fact may reveal to have resulted from an earlier interim spousal maintenance order.

The matter is listed for a final hearing to commence in February 2026, a period of some six months hence. Accordingly, if upon a testing of the evidence, further adjustment or reconsideration of these issues is required, that will occur in a relatively short timeframe.
Having regard to those matters, I am satisfied that the respondent's claimed weekly expenses ought be reduced by $4,530 (being his Part N expenses[7]) and a further $1,417, being the claimed interest payments on the two credit cards.[8] After deduction of those two amounts, the respondent's claimed expenses are reduced to approximately $3,128, leaving a surplus of approximately $4,838 per week.

Should there be an order for the payment of periodic spousal maintenance?

Having regard to my findings as to the respondent's income and expenses, I am satisfied that the respondent does have the capacity to pay the applicant periodic spousal maintenance in the amount sought by her, being the sum of $1,500 per week. Accordingly, I will make an order to that effect.

Should there be an order payment of arrears of maintenance as a lump sum?

The applicant seeks that the maintenance order be backdated to 12 March 2021, being the date upon which she commenced these proceedings. She seeks that the respondent pay to her the sum of $313,000 by way of capitalised spousal maintenance for the period 12 March 2021 to 19 March 2025, being a total of 209 weeks paid at the rate of $1,500 per week. That application was opposed by the respondent. Again, he maintained that he did not have capacity to meet that order.
In circumstances where the question of the Court's jurisdiction was disputed at the time the applicant filed her application in 2021, I am not satisfied that it would be appropriate or just for the burden of backdated maintenance to be payable from that date. That issue was resolved by the judgment of Williams J delivered on 16 May 2024, and her finding as to the existence of a de facto relationship between the parties, which founds the Court's jurisdiction to determine financial matters, was confirmed by the Full Court in October 2024.
Having regard to those matters, in my view the maintenance order ought be backdated to 1 June 2024, being a date approximately two weeks after confirmation of the Court's jurisdiction to determine the issue. On that basis, I am satisfied that the respondent ought pay to the applicant the sum of $94,500 being lump sum maintenance calculated at the rate of $1,500 per week for a total of 63 weeks from 1 June 2024.

The applicant seeks orders for a partial property settlement. The relevant legal principles with respect to such application are well established.
In Strahan & Strahan (Interim Property Orders_)_ [2011] FamCAFC 126; (2011) FLC 93-466 the Full Court set out the principles governing applications for interim property orders. The Full Court confirmed that a partial property settlement is an exercise of jurisdiction pursuant to s 79 of the Act, or in the case of de facto relationships (as applies here), s 90SM of the Act. Accordingly, the Court must follow the provisions of s 90SM, noting that there are limitations to the exercise of those provisions in circumstances where this is not a final hearing. The Full Court confirmed that there is no requirement of compelling circumstances in relation to the exercise of that power.
At [137] the Full Court stated:-
1. Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that "it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made": Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, "provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter". In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
At [136] the Full Court considered the question of adjustment after the making of an interim property order and stated as follows:-
1. As to the third matter identified at 79,930 by the Full Court in Harris, in discussion before us it was described as the "adjustment issue" or "claw-back issue". It was submitted by senior counsel for the Wife that it is relevant to consider whether an order would give the applicant "more than they would be indubitably entitled to on a final hearing" or alternatively "would it give them so much that it could not be adjusted on a final hearing?" As we have observed the Full Court in Zschokke at 83,220-221 stressed the importance of consideration of the "adjustment issue" if the power in s 80(1)(h) of the Act is being exercised. We accept the submission and observe that this matter is relevant because the discretion conferred by the power in s 79 is to make such order as the Court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order. As Bryant CJ and Coleman J observed in Gabel v Yardley at [69] and [72] the interim order must be capable of variation or reversal without resort to s 79A of the Act or appeal. As Finn J said at [126] the interim order must be "capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power".
The Full Court also sought to emphasise that in order to establish an appropriate case for an interim property order, more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
The Full Court confirmed that s 80(1)(h) of the Act is a wide enabling provision for interim property orders and there is no reason to limit it by requiring a finding of "compelling circumstances". What is required before the power to make an interim property order is exercised is an assessment of whether it would be "appropriate" to make that order, with the overarching consideration being the interests of justice.
The relief sought by the applicant is for the payment to her of a partial-property settlement in the sum of $500,000. In the alternative she seeks that sum by way of partial-property settlement and by way of litigation funding.
In Salvage & Fosse [2020] FamCAFC 144; (2020) FLC 93-966, the Full Court identified that orders seeking lump sum payments by way of part-property settlement or litigation funding may be made to alleviate obvious unfairness in circumstances where one party has control of assets and is able to martial them to pay lawyers, leaving the other party attempting to seek relief without being able to resort to property that might subsequently be transferred to them.
The Full Court held in Zschokke & Zschokke [1996] FamCA 79; (1996) FLC 92-693 that there are three matters relevant, regardless of whether the matter is determined as an interim property settlement order under s 80(1)(h), or as an interim costs order pursuant to s 117(2), being:-

(a) A position of relative financial strength on the part of the respondent;

(b) A capacity on the part of the respondent to meet his or her own legal costs; and

(c) An inability on the part of the applicant to meet his or her legal costs.

The above principles apply equally to property proceedings arising from the breakdown of a de facto relationship.

In support of her application for partial property settlement, the applicant relies upon the fact that until 20 December 2024, the respondent admitted that he was a "wealthy man of means" and claimed that it was difficult to describe with precision the extent of his income or wealth.[9] The respondent gave evidence as to his financial position detailed in his affidavit filed 2 September 2021. At [7] of that affidavit he deposed as follows:-

I admit that I am a wealthy man of means. I was so before my short relationship with [Ms Eide] and I have remained so. Due to the complex structure of the [F Group], it is difficult to describe with precision my income or wealth. I do not have a personal bank account and all accounts are processed through the [F Group]. [F Group] has a net value of between $100 and $200 million.

Annexed to that affidavit was a "mud-map" of the corporate structure for the F Group which disclosed that the respondent had control of that group through his personal shareholding (12.5%), the YY Trust (53.5%) and the WW Trust (34%).[10] That document purported to be a summary of the corporate structure as at 14 March 2013. At the time of filing of that affidavit in September 2021, the respondent represented to the Court that that document was an accurate summary of the corporate structure of the F Group.
The respondent's wealth was asserted as recently as 12 July 2024 in submissions filed on his behalf with respect to costs; it was there submitted that the respondent "is a wealthy man of means".[11]
Throughout the parties' relationship, the applicant contends that the respondent treated the income and assets of the F Group as his own. In support of that submission, she relied upon the payment of the respondent's personal credit card expenses by the F Group, referred to earlier in this judgment.
The applicant also relied upon the evidence of Ms AC, the National Accounts Manager for F Pty Ltd, who provided an affidavit in support of the respondent's case, in which she provided summaries of payments made by F Pty Ltd to or on behalf of the women the respondent had "seen" since 2017.[12] That affidavit disclosed that payments totalling $706,623 had been made by F Pty Ltd to thirteen women "seen" by the respondent between 2017 and 2022. The payments made to or on behalf of those women included payments for rent, medical expenses, and in relation to Ms V, payment of legal fees to AM Lawyers in the sum of $20,752.05[13].
The applicant contends that the respondent's drawing on F Pty Ltd accounts to meet his personal and legal expenses has continued in the post separation period and in support of that submission relies upon the summary of credit card expenses met by F Pty Ltd contained in Exhibits A-1, A-10, and A-11, to which I referred above. She contends that those drawings are evidence of the respondent's effective control of F Pty Ltd.
In further support of that position, the applicant noted that during their relationship the respondent was the sole director of F Pty Ltd. Approximately one month prior to the commencement of these proceedings, Mr N, an in-house lawyer employed by the F Group, was appointed as a director of that entity and since then, another employee of the F Group, Mr AN, and the respondent's adult daughter from a previous relationship have also been appointed as directors of that entity. It is as a result of those appointments that the respondent contends that he does not have control of F Pty Ltd.
Notwithstanding those matters, the applicant maintains that the respondent has effective control of F Pty Ltd, and the WW Trust and the YY Trust, being the discretionary trusts which holds the shares in F Pty Ltd. As a result, the applicant submits the respondent has the capacity to meet her claim.
The respondent rejects the contentions of the applicant as to the nature and extent of his interests; he points to and relies upon the corporate structure of F Pty Ltd and the fact that third parties are the appointors and guardians of the WW Trust and the YY Trust, being the discretionary trusts that are the shareholders of F Pty Ltd. The respondent maintains that the effective control of F Pty Ltd rests in those entities that are managed and controlled by third parties, namely Mr N, Mr AN and Mr MM.
During submissions, it was conceded by counsel for the applicant that the determination of who has effective control of F Pty Ltd is a matter for trial, where the evidence of all parties can be tested. Given the conflicting evidence of the parties in relation to those matters, that was a sensible concession. The determination as to the ownership and control of F Pty Ltd is at the epicentre of the dispute between the parties and is an issue that is only capable of resolution at trial following a testing of evidence.
The applicant also contended that the respondent holds 3 of 4 equal undivided shares (a 75 per cent interest) as tenant in common with the estate of the respondent's former partner (which holds a 25 per cent interest) in the property situate at TT Street, Suburb UU. The applicant asserts that property has an estimated value of between $30 million to $33 million dollars. The applicant was critical of the respondent for failing to disclose his interest in that property.
As to the ownership of the TT Street property, whilst the title to the property discloses the respondent's interest as alleged by the applicant, the respondent contends that he is not the beneficial owner of an interest in that property. In support of that contention the respondent relies upon the contract he entered with F Pty Ltd on 7 May 2013 to transfer his interest in the TT Street property to F Pty Ltd in consideration for a payment of $10 million, which sum he asserts was set off against his debt to F Pty Ltd in the sum of $10,827,212.[14]
On behalf of the respondent it was submitted that in circumstances where there is a live issue as to whether or not he controls F Pty Ltd, as well as the trusts that hold shares in that company, it cannot be established that the assets held within those structures (including TT Street) form part of the parties' property pool for the purposes of adjustment under the Act. As such, it was submitted that the Court ought not accede to the applicant's claim for a partial property settlement at this interlocutory stage. In support of that position, the respondent relied upon the principles in Strahan which confirm that interim property orders may only be made with respect to the property of the parties or either of them. In circumstances where the Court cannot be satisfied as to whether there is sufficient property to meet the applicant's claim, it was submitted that that claim must fail.
The applicant sought to press her claim for interim property relief on the basis that the respondent continues to be a registered proprietor of the TT Street property; she submitted that in circumstances where a transfer of land to F Pty Ltd has not been registered, the Court is entitled to rely on the legal title to that property. Counsel for the applicant also relied upon the failure of the respondent to produce documents supporting his contention as to ownership of TT Street. For example, there is no evidence of an executed transfer of land between the respondent and F Pty Ltd with respect to TT Street.
It was also contended on behalf of the applicant that F Pty Ltd is statute-barred from asserting its rights with respect to the alleged contract of sale in circumstances where that contract was executed on 7 May 2013 and the transfer of the respondent's interest in the property to F Pty Ltd is yet to be perfected.
The applicant also relied upon the respondent's conduct on 12 December 2024 in completing a passport application for the parties' child in which he recorded his residential address as TT Street Suburb UU.[15] Seemingly, at least for the purposes of that application, the respondent identifies TT Street as his principal residence. No doubt further enquires of the State Revenue Office with respect to those matters will clarify that issue.
The submissions made on behalf of the applicant as to the respondent's interest in TT Street were compelling. However, the Contract of Sale of TT Street (Exhibit AWTC-3 of the affidavit of Mr N filed 14 April 2025), and the evidence of Mr N in relation to the respondent's purported sale of his interest in that property cannot be disregarded.
Having regard to the evidence and the submissions made on behalf of both parties, I am well satisfied that there is a live and serious dispute between them as to the nature and extent of the respondent's interest, if any, in TT Street. Again, that is a dispute that can only be resolved upon a testing of evidence at the final hearing.
At this stage in the proceedings, neither party has produced a balance sheet as to their interests available for division. There is a live issue as to ownership and control of the F Group. Absent a testing of evidence, no findings can be made at this stage as to the respondent's interest in the Group or the assets held by that Group.
Similarly, the respondent's interest, if any, in the TT Street property is a contested issue. Whilst the title of the TT Street property discloses that the respondent holds a 75 per centum interest as tenant-in-common with the estate of his former spouse in that property, the question of whether he beneficially holds an interest in that property is a live dispute, particularly having regard to the contract for sale of that property entered into by him with F Pty Ltd in mid-2013. It may well be that evidence as to the steps taken by the estate of the respondent's former partner in relation to the alleged transfers at the time of the contract, as well as any application for a grant of Probate will provide further clarity in relation to that issue. Again, absent a testing of evidence, no finding can be made with respect to those matters.
It is for the applicant to establish that there are sufficient assets available for the interim distribution and further that the effect of any interim order is capable of being reversed as part of the final hearing or at least would not defeat the respondent's property claims. It is not for the respondent to adduce that evidence (per Medlow & Medlow (2016) FLC 93-692).
As the matter currently stands, I am unable at this point to determine the property pool for the purpose of this interlocutory application. Whilst the applicant contends that there are sufficient assets to meet her claim, the respondent steadfastly maintains that there are not. Given the extent of the dispute as between the parties in relation to the interests that are to be included in their pool, such as the F group and TT Street, as well as debate as to the value of that pool, I cannot be satisfied that the sum of $500,000 or any lesser amount ought be paid to the applicant at this time.
That view is bolstered in circumstances where I cannot be satisfied that the order as sought by the applicant is capable of being reversed or considered at the final hearing if a clawback were ultimately required. In circumstances where I am not able to determine what constitutes assets within the property pool or their value, it follows that I am not able to make any finding as to the reality of any subsequent order for a "clawback" being made.
Having regard to all of the above matters, I am not persuaded that there ought be an order for partial property settlement as sought by the applicant. Accordingly, that part of the applicant's application will be dismissed.

In the alternative to an interim property order, the applicant seeks a "dollar-for-dollar" order pursuant to s 117(2) of the Act. That is, she seeks an order that for each dollar that the respondent pays to his lawyers by way of costs, he pay to the applicant's lawyers a dollar for their costs.
Section 117 of the Act provides that each party shall bear his or her own costs unless the Court is of the opinion that there are circumstances that justify the Court departing from that general rule. In determining what, if any order is to be made, the Court is directed to consider the matters set out in s 117(2A), with the Court to give each such weight as it considers relevant. It is well-settled that no one factor must be present and that the presence of any one of those factors may justify the making of a costs order.
That the Court has the power to make an order as sought by the applicant is uncontroversial. Such an application was considered by Watts J in Atkins v Hunt [2018] FamCA 14; (2018) 57 FamLR 128. There he stated that the purpose of such order was:-
1. ...to ensure that for any dollar the financially advantaged party spends on legal costs and disbursements on the case, the disadvantaged party is also provided a dollar to spend on their case...
As to the Court's approach to an application for a "dollar-for-dollar" order, Watts J stated:-
1. When making a dollar for dollar order under s 117(2), the focus will usually be in considering the disparity of the financial resources available to the respective parties, including their ability or lack of ability to meet their litigation expenses (s 117(2A)(a)) and the unusual features of the matter (s 117(2A)(g) of the Act).
2. The making of a dollar for dollar order is a discretionary order that is usually made only as an order of last resort. Examples of circumstances which may attract the exercise of the discretion include:

46.1. Where:

46.1.1. The party who apparently controls significant financial purse strings pleads impecuniosity; and

46.1.2. The financially disadvantaged party cannot point to any particular fund or asset that might be available to help assist that party fund their litigation; but

46.1.3. The financially advantaged party seems to be able to fund their litigation through personal exertion income or structures that they directly or indirectly control (see for example, Zadenev & Zadenev [2014] FamCA 693 and Ryder & Bonham);

46.2. Where a financially advantaged party is a minority shareholder in a company and/or a discretionary beneficiary in a trust and directors or trustees seem more than willing to declare dividends or make distributions to fund litigation for the financially advantaged party against the disadvantaged party;

46.3. Where a financially advantaged party has relatives or associates who are prepared to fund the litigation against the financially disadvantaged party in circumstances where the financially disadvantaged party does not have the same support from third parties (Hurford & Hurford [2016] FamCA 328).

I have already considered in detail the parties' respective financial circumstances, as disclosed in their Financial Statements in my consideration and determination of the applicant's application for interim spousal maintenance.
I am well satisfied that the respondent is in a significantly stronger financial position to that of the applicant. A comparison of the parties' Financial Statements confirms that the respondent's income is more than $6,500 per week greater than that of the applicant. Further, I am satisfied that the respondent's expenses are substantially less than what is asserted by him in his Financial Statement. As noted earlier, the respondent's credit card expenses and legal expenses are met by F Pty Ltd, the latter seemingly as part of his employment contract. An examination of the respondent's credit card statements discloses that many, if not all of his personal living, medical and entertainment expenses are met by him on the credit cards paid for by F Pty Ltd and not from his income.
It was conceded by senior counsel for the respondent that F Pty Ltd pays the respondent's legal costs of these proceedings. In addition, the evidence of Ms AC, referred to earlier, discloses that historically, F Pty Ltd has also met legal costs of the respondent's former female partners.
Curiously, on 4 March 2025, being two weeks prior to the listed hearing of these interim proceedings, it was resolved at a meeting of the directors of F Pty Ltd that the indemnity granted to the respondent in relation to legal costs is limited to him and does not include third party legal costs or costs ordered against him (Exhibit R-3). The timing of that resolution in the context of these proceedings invites an inference that it was entered into as a shield against the possibility of an order in the terms now contemplated.
A consideration of the parties' respective costs notices highlights the disparity between them in terms of their financial positions. As at 9 May 2025, being the date of the respondent's Costs Notice, he had incurred costs totalling $992,129.34. That notice discloses that the respondent's source of funds to meet his costs are from F Pty Ltd. As to future costs, it is estimated that the respondent will incur a further $54,500 with respect to the Interim Defended Hearing, an additional $110,000 up to and including the Compliance and Readiness Hearing and finally, approximately $350,000 in relation to the final hearing. That is, it is anticipated that the respondent will incur a total of approximately $514,500 in additional costs over and above the almost $1 million already expended by him.
As to the applicant, the Costs Notice filed on her behalf on 9 May 2025 discloses that as at that date, she had incurred costs totalling $697,477.97 of which approximately $263,000 had been paid. That notice also discloses estimated future costs up to and including final hearing of approximately $410,000. The applicant has paid costs to date from her personal income and savings, borrowed funds, and from funds received as a result of previous costs orders made in the proceedings.
That the respondent has spent significantly more than the applicant in this litigation, notwithstanding the fact that it is he who allegedly controls or has access to the majority of the interests the applicant contends are in the parties' asset pool, highlights the fact that currently there is not a level playing field between them. Not only has the respondent expended more on the proceedings to date, he has been in the position to pay his lawyers throughout the proceedings, whilst the applicant has incurred a significant liability pursuing her claim.
Those issues are compounded in circumstances where the respondent has to date not met his obligation to meet the costs order made by Williams J on 31 January 2025, which required him to pay the sum of $164,322.71 by 28 February 2025. Of course, at the time that order was made, the directors' meeting resolution referred to above (Exhibit R-3) had not been made.
The examples provided by Watts J at [46] in Atkins v Hunt (supra) as to circumstances which might give rise to a "dollar for dollar" order are strikingly similar to the facts in this case. In particular, I note:-

(a) The respondent is a litigant who is alleged to control significant financial resources, yet pleads impecuniosity. I note that the respondent discloses assets of $0.38 in his Financial Statement.[16] The advent of the respondent's apparent impecuniosity is of recent moment, he having admitted to holding significant wealth throughout the threshold proceedings;

(b) The applicant, who is the disadvantaged party at this time, is unable to point to any particular fund or asset that might be available to assist her in the litigation; and

(c) The financially advantaged party, being the respondent, is able to fund his litigation through his income or structures that may be directly or indirectly controlled by him.

Further, I note that the respondent now finds himself in the position of being one of a number of directors of F Pty Ltd, as opposed to the sole director as was the case prior to these proceedings, and that F Pty Ltd is apparently obliged to fund the entirety of respondent's litigation against the applicant.
Whilst there is a possibility that the respondent may be unable to fully recover any costs paid to the applicant, that consideration must be balanced against the possibility that the applicant will successfully prosecute her claim.
In this matter, the relevant consideration pursuant to s 117(2A) is the financial circumstances of each party. Having regard to those matters and in particular, the identified disparity between the parties' respective financial positions, I am satisfied that it is just to make orders pursuant to s 117(2) of the Act. Accordingly, I will make a dollar-for-dollar order as sought by the applicant.

In circumstances where the respondent is registered on the title to the TT Street property as holding three of four equal undivided shares in that property, the applicant contends that that interest is part of the parties' pool of assets available for division. The applicant contends that that position is strengthened having regard to the child X's passport application completed in December 2024, in which the respondent disclosed to the Australian Passport Office that his residential address is the TT Street property.
The applicant submits that she has obtained a market appraisal in respect of TT Street which assesses its value at approximately $30 million to $33 million.
As such, she seeks orders that the property be valued by a jointly appointed single expert valuer.
That application is opposed by the respondent who maintains that he does not hold a beneficial interest in the property.
Clearly the issue as to the nature and extent of the respondent's interest in the TT Street property, if any, is a live dispute.
Although the respondent maintains he holds no interest in the property, he continues to be a registered owner of TT Street. Moreover, although it is asserted that the respondent has transferred his interest in the property to F Pty Ltd, at the time of hearing, F Pty Ltd had taken no action with respect to registering its interest in the property or enforcing its rights under the alleged contract.
Taking the above matters into account, and acknowledging that the inclusion or otherwise of the respondent's interest in TT Street in the parties' asset pool is a contested fact that will only be resolved upon a testing of evidence at trial, I am satisfied that in circumstances where the respondent is a registered owner of TT Street, there ought be a single expert valuation of his alleged interest. To do otherwise may result in a delay in the finalisation of the proceedings. The parties have already endured a protracted litigation process and it would not be in the interests of either were the finalisation of the proceedings to be delayed as a result of a finding that the property is to be included in the pool of assets and there is no valuation of that property, thus necessitating an adjournment of the proceeding for that purpose.
Accordingly, I am satisfied that the orders as sought by the applicant with respect to valuation of the property are appropriate and ought be made.

The applicant seeks orders that the respondent make full and frank disclosure within 21 days of specified documents. In particular, she seeks orders that the respondent produce his personal tax returns, tax assessments and financial statements for each company, trust or entity owned or controlled by him or in which he has an interest, and bank account statements, credit card statements and loan documents related to accounts in his name personally or held jointly by him with other persons or held in the name of any company, trust or entity owned or controlled by him. Further, the applicant seeks documents evidencing the source of payments made by the respondent in respect of the child and his former partner Ms VV, and specific documents proving elements of his Financial Statement.
It was conceded on behalf of the respondent that where such documents are in the possession or control of the respondent, he has an obligation to make disclosure of them. The respondent maintains that he has made disclosure in respect of many of the documents sought by the applicant.
It appears that this, like many cases that come before the Court, is one where one party alleges that the other has failed to meet their obligation to make full and frank disclosure. As to whether the respondent has in fact fulfilled those obligations is a matter that is only capable of resolution upon a testing of evidence at trial.
All parties in property proceedings have an ongoing obligation to make full and frank disclosure of their financial position (per Oriolo and Oriolo [1985] FamCA 54; (1985) FLC 91-653; Weir and Weir [1992] FamCA 69; (1993) FLC 92-338). That obligation is confirmed in Chapter 6 of the Federal Circuit and Family Court of Australia Rules 2021_._ The duty to make disclosure is absolute and one that continues throughout proceedings in this Court; this is a Court of "show and tell" rather than "hide and seek".
The consequences of non-disclosure by a party are well known. The Full Court in Chang & Su [2002] FamCA 156; (2002) FLC 93-117 helpfully summarised the relevant authorities in relation to non-disclosure and confirmed that it is open to a Court to take a more robust view to the adjustment of parties' interests in circumstances where there has been non-disclosure, the effect of which has been to hamper the identification and valuation of the parties' assets.
In light of the issues raised by the applicant, the respondent is squarely on notice as to her concerns and the position likely to be agitated by her at final hearing in the event of a finding of non-disclosure in the matter.
As to the respondent's personal documents I will make orders that he provide to the applicant's solicitors those identified documents not already produced within 21 days.
The issue of production by the respondent of company or trust records is more complex. The applicant seeks orders for the production of those documents relying upon ss 198F(2) and (3) and/or s 290(1) to (3) inclusive of the Corporations Act 2001 (Cth) ("the Corporations Act").
The respondent opposes orders that he produce such records on the basis that he is not in a position to exercise his powers as a director of the identified entities to obtain those documents not in his possession for use in these private proceedings. It was submitted that the respondent's entitlement to accessing those documents must be in fulfillment of his fiduciary obligations to the entities and not for his own personal proceedings in this Court.
The right to inspect company books is governed by s 198 of the Corporations Act which provides as follows:-

198F Right of access to company books

Right while director

(1) A director of a company may inspect the books of the company (other than its financial records) at all reasonable times for the purposes of a legal proceeding:

(a) to which the person is a party; or

(b) that the person proposes in good faith to bring; or

(c) that the person has reason to believe will be brought against them.

Note 1: Section 290 gives the director a right of access to financial records.

Note 2: This section also applies to a director of a corporate director of a CCIV: see section 1225D.

Right during 7 years after ceasing to be director

(2) A person who has ceased to be a director of a company may inspect the books of the company (including its financial records) at all reasonable times for the purposes of a legal proceeding:

(a) to which the person is a party; or

(b) that the person proposes in good faith to bring; or

(c) that the person has reason to believe will be brought against them.

This right continues for 7 years after the person ceased to be a director of the company.

Right to take copies

(3) A person authorised to inspect books under this section for the purposes of a legal proceeding may make copies of the books for the purposes of those proceedings.

Company not to refuse access

(4) A company must allow a person to exercise their rights to inspect or take copies of the books under this section.

Interaction with other rules

(5) This section does not limit any right of access to company books that a person has apart from this section.

The entitlement of a director to access company records is governed by s 290 of the Corporations Act which states:-

290 Director access

Personal access

(1) A director of a company, registered scheme, registrable superannuation entity or disclosing entity has a right of access to any financial or sustainability records at all reasonable times.

Note: Section 1232B extends this section to the directors of the corporate director of a retail or wholesale CCIV.

Court order for inspection on director's behalf

(2) On application by a director, the Court may authorise a person to inspect the financial or sustainability records on the director's behalf.

(3) A person authorised to inspect records may make copies of the records unless the Court orders otherwise.

(4) The Court may make any other orders it consider appropriate, including either or both of the following:

(a) an order limiting the use that a person who inspects the records may make of information obtained during the inspection;

(b) an order limiting the right of a person who inspects the records to make copies in accordance with subsection (3).

Relying on the above provisions the applicant submits that the respondent, as a director of F Pty Ltd, is entitled to inspect and copy the company records.
The respondent contends that whilst he may be entitled to access the documents in his capacity as a director of F Pty Ltd, he does not have a right to possess or control those documents in a personal capacity for these proceedings.
In Schweitzer & Schweitzer (2012) FamCA 445 ("Schweitzer") the Court held that the fiduciary obligations of a company director mean that he or she does not have a right to possession or control of corporate documents in any personal capacity; rather, such right of access to documents is strictly limited for the purposes of the corporation and not for Family Court proceedings. That approach was approved by the Full Court in Masoud & Masoud [2016] FamCAFC 24; (2016) FLC 93-689 and is binding on this Court, as was acknowledged at [65] of the Applicant's written submissions filed 8 May 2025.
As a result, in circumstances where the respondent is one of four directors of F Pty Ltd, and absent a testing of evidence I cannot be satisfied that he has effective control of that entity as contended by the applicant, I am not satisfied that he has a right to access documents of that entity for the purposes of these proceedings.
Nonetheless, I note that there is no impediment to either party seeking the production of relevant documents from F Pty Ltd by way of issue of a subpoena.
Having regard to all of the above reasons I make the orders provided at the beginning of this judgment.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.

[1] Applicant's financial statement filed 19 December 2024, Part D, page 3

[2] Affidavit of the Applicant filed 8 November 2024, paragraph 18

[3] Affidavit of the respondent filed 2 September 2021, paragraph 7

[4] Respondent's submissions in response to applicant's claim for costs filed 12 July 2024, paragraph 14

[5] Financial Statement of the respondent filed 2 September 2021

[6] Financial Statement of the respondent filed 24 February 2025, page 5

[7] Respondent's Financial Statement filed 24 February 2025, Part N, p. 11

[9] Affidavit of the Respondent filed 2 September 2021, paragraph 7

[10] Affidavit of the Respondent filed 2 September 2021, page 16

[11] Written Submissions of the Respondent filed 12 July 2024, paragraph 14

[12] Affidavit of Ms AC filed 22 May 2023

[14] Affidavit of the Respondent filed 14 April 2025, paragraphs 11-12

[15] Affidavit of Applicant filed 28 April 2025, paragraph 5 and Annexure JDC-17 (pages 7 to 16)

[16] Respondent's Financial Statement [...]

Circuit and Family Court of Australia (Family Law) Rules 2021

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