Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5]

Beck & Beck (No 2) [1983] FamCA 7; (1983) FLC 91-318

Blatch & Archer [1774] EngR 2; [1774] 98 ER 969

Boulton & Boulton [2024] FedCFamC1A 132

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595

Coshott & Prentice [2014] FCAFC 88

Dajani & Dajani [2025] FedCFamC1A 28

Dawes & Dawes [1989] FamCA 71

Dickons & Dickons [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

Gadhavi & Gadhavi [2023] FedCFamC1A 117

Gould & Gould [2007] FamCA 609

Grier & Malphas [2016] FamCAFC 84

Hickey & Hickey [2003] FamCA 395

Hicks & Trustee of the Bankrupt Estate of Hicks [2021] FamCAFC 19

Jabour & Jabour [2019] FamCAFC 78

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kannis & Kannis [2002] FamCA 1150

Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757

Lavell & Lavell [2012] FamCA 34

Lotta & Lotta [2017] FamCA 50

MacKinnon & Talbot [2023] FedCFamC1A 156

Mallet & Mallet [1984] HCA 21; (1984) 156 CLR 605

Martell & Martell [2023] FedCFamC1A 71; (2023) 66 Fam LR 650

Meadows & Meadows (No. 2) [2019] FamCA 491

Norman & Norman [2010] FamCAFC 66

Petruski & Balewa [2013] FamCAFC 15

Scaletta & Scaletta [2024] FedCFamC1A 87

Sigley & Cullen (No 3) [2015] FamCA 825

Stamatou & Stamatou [2022] FedCFamC1F 241

Teal & Teal [2010] FamCAFC 120

Weir and Weir [1992] FamCA 69

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. All extant property orders be discharged.
2. Within 14 days of the date of orders each of the Applicant Wife and Respondent Husband are to do all things reasonably necessary so as to sell the former matrimonial home situated at 1 B Street, Town C in Tasmania and contained in Certificate of Title Volume []... Folio []... ('1 B Street property') with such real estate agent and for such listing price as is agreed between the parties.
3. The proceeds of sale of the 1 B Street property be divided as follows:

(a) Firstly, to pay all costs and expenses of the sale and to pay any council and water rates outstanding in respect of the real property;

(b) Secondly, to repay all sums necessary to effect the registration of a discharge of the parties existing mortgage to D Bank;

(c) Thirdly, pay out the loan relating to Motor Vehicle 1;

(d) The balance be held in trust to be distributed to the parties in accordance with the method set out in paragraph 4 of this order.

1. There be a division of all property of the parties (including superannuation) in the proportion 55.5% to the Applicant and 44.5% to the Respondent, calculated as follows:-

(i) WHERE:

1. = the net assets retained by the Applicant - ($20,500)
2. = the net assets retained by the Respondent - ($147,726)
   1. = the net proceeds of the sale of the 1 B Street property per sub-paragraph 3(d) of this Order and the net proceeds of the sale of 2 B Street property.

(ii) AND WHERE A+B+C= I;

1. the Applicant shall receive a sum equal to (I x 55.5%) - A; and
2. the Respondent shall receive a sum equal to (I x 44.5%) - B.

1. Pursuant to section 90XT(l)(a) Family Law Act 1975 whenever a splitable payment becomes payable in respect of the Husband's interest in Super Fund 1 the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount, at the date of these orders, in the sum of $17,000 and that there be a corresponding reduction to the entitlement the Husband would have had in the said superannuation fund but for this Order.
2. The trustees of the said superannuation fund having been afforded procedural fairness, the previous Order binds the said trustees and shall take effect from the operative time which shall be seven days after the day on which the said trustees are served with a sealed copy of these orders.
3. Each party shall be otherwise solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker therein and service pensions are deemed to be the property of the person in receipt of same.
4. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that patty is entitled pursuant to these Orders.
5. Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
6. All extant 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are property proceedings initiated on 3 November 2023 by Ms Riley ('the Wife') as against Mr Riley ('the Husband').
2. Helpfully, the parties were able to agree upon the nature and value of the asset pool, the property that each of them would retain, and that a property - 2 B Street, Town C in Tasmania ('the 2 B Street block') would be sold - which occurred in January 2025. It was also agreed that the main home - 1 B Street, Town C in Tasmania ('the 1 B Street property') - would be placed on the market for sale.
3. The parties agreed that the loan for Motor Vehicle 1 - to be kept by the Husband - would be paid out from the proceeds of the sale of 1 B Street, and that each otherwise keep the assets in their possession. The parties also agreed to a rough equalisation of their superannuation interests, resulting in a split to the Wife of $17,000 from the Husband's fund - with the resulting superannuation interests to be considered as part of one pool of assets for division.
4. The Wife submitted that she should receive 70 per cent of the net asset pool,[1] whilst the Husband sought an equal division.[2]

1. The Wife was born in 1975 and is currently employed as an allied health worker.[3] She has not re-partnered.
2. The Husband was born in 1972 and is a self-employed builder.[4] He lives with his de facto partner, Ms F.
3. The parties began cohabitation in July 1996 and married in 1997.[5]
4. There are two children of the marriage - Ms G ('Ms G') born in 1998 and Mr E ('Mr E') born in 1999.
5. The parties purchased their first property together at H Street, Town J, Tasmania ('the Town J property') in 1997. The parties undertook renovations on that property, with the Husband undertaking 80 per cent of the work, and the Wife 20 per cent.[6]
6. In June 2012 the parties purchased land at B Street, Town C in Tasmania, which was subdivided into two lots.
7. In 2014 a house was built on one of the B Street lots. In the same year, the parties sold the Town J property for $495,000, with the funds used to pay down the mortgage and to help pay for the construction the house on the B Street lot. The parties then lived in a rental property in Town J.[7]The construction of the B Street property was undertaken solely by the Husband.[8]
8. Around 2014, the Husband injured his shoulder at work and required surgery. He was unable to work for three months and, after that period, returned to work on light duties.
9. In late 2015 the Husband was charged with common assault of the Wife for hitting her to the face with an open hand.[9] A Police Family Violence Order (PFVO) issued on the same day. The Husband pleaded guilty at the first instance and no conviction was recorded, but he had to pay the court's fees.[10] The Husband said that this was the only instance of family violence, whilst the Wife alleged that there was other violence perpetrated against herself and Mr E.
10. The parties separated on 4 December 2016. They are yet to divorce.
11. Post-separation, the Wife remained at the 1 B Street property,[11] and paid its mortgage, whilst the Husband lived in a motorhome located on a friend's property.
12. Twelve months later the Husband began renting a property in Town C with Mr E. He then moved to a property at Town J where, in lieu of rent, he maintained the property and undertook building work.
13. In 2020, the Husband sustained an injury to his other shoulder when he fell through a floor, again requiring surgery. He was unable to work for three to four months before returning to light duties.
14. In early 2023 the Husband had a third workplace injury to his shoulder when he fell from a roof, preventing him from working for 8-10 weeks.
15. The Wife initiated property proceedings on 3 November 2023.
16. In April 2024 the Husband moved into another rental property owned by his uncle, and again, undertook building and maintenance work in lieu of rent.
17. In January 2025 the vacant block at 2 B Street was sold, leaving net proceeds of $43,724.
18. The trial commenced on 8 October 2024 in City L, before adjourning whilst the M Authority investigated the Husband, N Pty Ltd and its director, Mr O's, involvement in some building projects, and whether there had been breaches of the Occupational Licensing Act 2005 (Tas), following a referral by this Court on 5 November 2024.[12]
19. Final submissions were received on 20 February 2025.

1. The parties tendered a joint balance sheet, which was exhibited as 'J1' and is extracted here:[13]

1. I note that the Husband, under cross-examination, said he owed his father an amount of $17,500 of which he has repaid $9,000.[17] This item was not included in J1, no submissions were made about it, and the Husband did not call his father as a witness. I will not have regard to the alleged loan.

1. The Wife relied upon:
   • Her Case Outline filed 8 October 2024;
   • Her Amended Application filed 18 July 2024;
   • Her Financial Statement filed 27 September 2024;
   • Her Affidavit filed 30 August 2024;
   • Affidavit of Ms G filed 1 October 2024;
   • Affidavit of Dr P filed 27 September 2024; and
   • Subpoenaed material.
2. Mr Williams, Counsel for the Wife, initially submitted that an overall division of 60 per cent should be awarded to the Wife when assessing contributions. At the end of the trial, he modified his position, seeking 55 per cent for contributions, submitting that her contributions were made more arduous because of family violence perpetrated on her and the children by the Husband, and she contributed more in any event because she was the primary parent and homemaker whilst working part time, including when the Husband was unable to work.
3. Mr Williams submitted that there should be a further adjustment for section 75(2) factors of 15 to 20 percent due to the greater income earning capacity of the Husband and that of his de facto partner.
4. The Wife was cross-examined, answering questions in a matter-of-fact way, from her perspective. She remained adamant that she had been the victim of physical and verbal violence from the Husband, that had impacted her self-worth - a position unshaken under cross-examination.
5. I accept her evidence.

1. Dr P is a clinical psychologist, who treated the Wife over 12 sessions between 2018-19 and 2023-24,[18] to help her with her experiences of domestic violence:

[Ms Riley] was referred to me by her General Practitioner [Dr Q] in 2018 for counselling in relation to being "a victim of DV for 20 years". When I first met her in 2018 she had been separate from her husband for about 18 months.[19]

1. In her curriculum vitae she described her experience:

I have been working for over 17 years in public and private mental health services, extensive experience and training in clinical diagnosis of mental health disorders, mental state examinations and detailed formulations and treatment planning for adults with major mental health disorders. For the past 8-12 years the focus of my practice has become on the treatment of PTSD and complex trauma.[20]

1. Dr P was not cross-examined, and I give her evidence weight.

1. Ms G is the 27-year-old daughter of the parties, who filed an affidavit on 1 October 2024, in support of her mother's contention that the Husband had been violent to her and Mr E. Under cross-examination she presented as articulate, sensible and measured, conceding that she did not see her father pushing Mr E's head onto the ground repeatedly - as she claimed - but rather saw him hold Mr E's head held forcibly on the ground, which she continued to regard as her father 'bashing' Mr E.
2. The parties have raised an intelligent, kind and strong young woman, who loves both of her parents and should not have been drawn into her parents' litigation. I accept her evidence.

1. The Husband relied upon:
   • His Case Outline filed 7 October 2024;
   • His Amended Response filed 4 June 2024;
   • His Financial Statement filed 17 November 2023 and his Amended Financial Statement filed 4 October 2024;
   • His affidavits filed 13 August 2024, 27 September 2024, and 30 January 2025;
   • Affidavit of Mr R filed 13 August 2024;
   • Affidavit of Mr E filed 7 October 2024 (not ultimately read); and
   • Financial Questionnaire filed 17 November 2023.
2. At the start of the trial, Mr Trezise, Counsel for the Husband, submitted that there should be a 45/55 division in favour of the Husband - based primarily on his introduction of three vehicles post separation, which amounted to 8 to 9 percent of the value of the asset pool. At the end of the trial Mr Trezise submitted that even though the parties' contributions should be assessed 45/55, a just and equitable outcome results in an equal division of the parties' assets.
3. The Husband was cross-examined at length, not only about the Wife's allegations of family violence but also of his involvement in two building projects being undertaken with N Pty Ltd/ Mr O.
4. The Husband's involvement in these projects was not revealed until information was put to him under cross-examination. The Husband's non-disclosure in this regard left the impression that he had deliberately sought to keep this information from the Wife and the Court. The impact was to undermine the reliability of the Husband's evidence, particularly in relation to his true earning capacity. This failure to disclose also led to an extension of the trial, while further information was sought and the Court referred the matter to M Authority. The Husband did not adequately explain his failure to disclose the information in his affidavits.
5. The Husband maintained his denial of a pattern of family violence against the Wife under sustained cross-examination, but his denials did not sit comfortably with other evidence.
6. I treat the Husband's evidence with caution.

1. Mr R is a friend of the Husband's and had a financial arrangement with the Husband in April 2024 when Mr R was short of money. Mr R was cross-examined about monies the Husband had loaned him, to enable him to meet his own debts, and pay security to obtain bail.
2. The Husband provided these monies notwithstanding his claim that his income was low. Mr R paid the Husband back.
3. Mr R maintained his position under cross-examination, and gave his evidence honestly enough, but the question remained as to how the Husband raised the funds given his stated low income.

1. I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.
2. The Evidence Act 1995 (Cth) ('the Evidence Act') sets out the applicable standard:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject‑matter of the proceeding; and

(c) the gravity of the matters alleged. [21]

1. Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, which remain relevant and authoritative:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[22]

(Emphasis added)

1. I must ground my assessment of the issues in dispute in facts, of which I am persuaded, on the balance of probabilities.

Property proceedings under Part VIII and the approach in Hickey and Stanford

1. Part VIII of the Act[23] governs the scope of the Court's power with respect to property and financial matters. The Court's powers under ss 79(1) - as 'very wide discretion[s]' - must be exercised according to principled reason,[24] and are constrained by a number of factors to which the Court must direct itself.[25] To this end, a typical approach is that set out in Hickey & Hickey & Hickey [2003] FamCA 395 and Stanford & Stanford (2012) 247 CLR 108,[26] comprising four steps:

(1) identify the parties' existing legal and equitable property interests, liabilities, and financial resources at the time of trial, and then determine whether it is just and equitable to adjust their interests pursuant to s 79(1);[27]

(2) consider the parties' contributions under s 79(4)(a)-(c);

(3) consider the factors under s 79(4)(d)-(g) including, by virtue of s 79(4)(e), the 'subjective considerations' under s 75(2) insofar as they are relevant;[28] and then

(4) 'stand back' to consider the justice and equity of the actual terms of order proposed to be made.[29]

By reference to the parties' existing legal and equitable property interests, is it just and equitable to make an order pursuant to s 79?

1. As foreshadowed above, the law requires that any interference with legal and equitable interests adheres to principled reason.[30]Justice and equity, with respect to property settlement in s 79(2), does not admit of exhaustive definition and it is 'not possible to chart its metes and bounds'.[31]The principles contained within the Act also accommodate 'stated or unstated assumptions and agreements about property interests during the continuance of the marriage'.[32] It is just and equitable, according to Stanford, for a Court to make a property settlement order if such agreements or assumptions with respect to property interests during the marriage have been brought to an end, which usually occurs with the end of the marriage.
2. Both parties submitted that there should be a property order in relation to the parties' own real estate and other property jointly - I agree. They both agree that an amount of the Husband's superannuation should be transferred to the Wife. The assumptions that the parties held during their relationship, as to the appropriateness of the arrangement of their property interests and liabilities, were ended when the parties' separated. It is just and equitable for there to be a property order in this case.

Section 79(4)(a)-(c) - contributions

1. In assessing the parties' contributions I must 'weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation'.[33] A trial judge must not disproportionately account for one contribution over and above the 'myriad of other contributions' made during the relationship.[34]This means that any contribution, whatever its size or significance, should not be weighed against the other 'miscellany' of contributions made, but instead should be assessed as one of those myriad contributions.[35] In essence, as expressed by Harper J in Dovgan & Dovgan [2021] FamCA 306 [347], the introduction of property by one party to a long relationship must be assessed holistically: 'all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder'.[36]
2. The Full Court in Dickons & Dickons [2012] FamCAFC 154, as restated by later authorities, refuted the idea that contributions should be assessed according to their ultimate economic result.[37] In MacKinnon & Talbot [2023] FedCFamC1A 156 the Full Court confirmed:

[N]ot all contributions by parties to marriages or de facto relationships lead to an increase in the wealth of the parties. A more common example of work and effort that does not lead to a financial benefit is where a party unsuccessfully attempts to establish a business to provide for the family: one could not deny that the work and effort in attempting to establish a business is a contribution to be considered, even if the business fails. There is no requirement that a contribution must result in a positive economic result before it can be taken into account: see Browne v Green [1999] FamCA 1483; (1999) FLC 92-873 at 86,359. Whilst the lack of economic benefit may be relevant (Willmore and Willmore [1988] FamCA 45; (1988) FLC 91-975), a party's work and effort generally remains a contribution unless it is conduct of the type described in Kowaliw and Kowaliw [1981] FamCA 70; (1981) FLC 91-092.[38]

1. Recently, the Full Court in Gadhavi & Gadhavi [2023] FedCFamC1A 117 confirmed that the Court cannot overlook the use and impact of an asset introduced into the relationship by a party:
   1. It was not in dispute that the primary judge applied proper principle in determining that the assessment of the impact of the Husband's initial contributions could only properly occur after she assessed "the totality of the parties' contribution - based entitlement over the entirety of the marriage and post-separation" (at [210]).
   2. In that respect, in Pierce v Pierce (1999) FLC 92 - 844 ("Pierce"), the Full Court stated at [28]:

... It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the Husband and the Wife. In considering the weight to be attached to the initial contribution, in this case of the Husband, regard must be had to the use made by the parties of that contribution.

1. To similar effect, in Cabbell & Cabbell [2009] FamCAFC 205, the Full Court stated at [54] that in considering the parties' contributions, it is necessary to trace the use of those assets and consider the foundation that they laid for the subsequent accumulation of wealth by the parties.
2. That is, in evaluating the parties' contributions, it was necessary for the primary judge to have regard to the context of the Husband's initial contribution and specifically, to the opportunity that initial contribution created and the impact of that initial contribution on the subsequent wealth of the parties as at the date of the hearing.[39]

1. The Full Court in Petruski & Balewa [2013] FamCAFC 15; (2013), summarised the approach at [49]:

The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship: Dickons v Dickons [2012] FamCAFC 154 (Dickons). As was also said by the Full Court in Lovine v Connor [2012] FamCAFC 168 at [40] and [41] (Lovine) such an evaluation "inevitably involves value judgments and matters of impression", and accordingly it cannot be treated as "a mathematical exercise."

Section 79(4)(a): direct or indirect financial contributions to property

1. The parties commenced their relationship with a small amount of property. The Husband, working as a self-employed builder, had a car, motorbike, approximately $8,000 (which was put towards the deposit on the Town J property) and superannuation from his previous five years of employment.[40]
2. The Wife had a car at the commencement of the relationship and was employed full-time working in the community sector.
3. The parties bought their first property together in 1997, being the Town J property. The Husband's introduction of capital was an important contribution to that property.
4. In 2001 the parties bought a business - a shop - which they ran for approximately two years, while the Husband took on building work to supplement the parties' income.
5. The parties sold the business and began operating the business partnership, 'S Business'.[41]While the Husband worked as a full-time self-employed builder, the Wife worked in retail and then was the bookkeeper for the partnership, whilst studying to become an allied health worker.[42]
6. In 2008 the Wife started her own business as a self-employed allied health worker.
7. In 2012 the parties purchased land at B Street, Town C for $120,000 which was subdivided into two lots, with a house being built on the main lot, which became the family home. As stated, the vacant block of land was sold in January 2025. The property at B Street, Town C will now be sold.
8. In 2014 the parties sold the Town J property for $495,000 and put the balance funds towards building the B Street property.
9. During the relationship, the Husband said that he earned a small income, although was able to meet some living expenses from the business:

I have only ever taken drawings from the business when I have needed money which is all accounted for in my taxable income. I have never paid myself a wage either during our marriage or since our separation. My tax returns and financial statements show my taxable income was as follows:

25.1. Year ending 30 June 2016 - $39,004;

25.2. Year ending 30 June 2017 - $19,061;

25.3. Year ending 30 June 2018 - $21,789 ;

25.4. Year ending 30 June 2019 - $42,401 ;

25.5. Year ending 30 June 2020 - $28 891;

25.6. Year ending 30 June 2021 - $33,772;

25.7. Year ending 30 June 2022 - $42 ,061; and

25.8. Year ending 30 June 2023 - $41,516.

26. This is not an unusual earning history. Before our separation I had some better years but generally our income from the partnership was similar. We actually had to extend our mortgage in about 2014 to help pay our bills and living costs as we were struggling financially.[43]

(Emphasis added)

1. The Husband also denied, as claimed by the Wife,[44] that he received large amounts in cash during the relationship:

I am expecting that [Ms Riley] will have the view that I have cash income from my business. That is not correct. I do some work for the [T Authority] which is minor home modifications for their clients. I have no contract with them, and I submit quotes when approached by them and if successful the quote is accepted, and I complete the work and issue an invoice. The last private home I built was in 2022. It is not work that I enjoy, but in any event all work was invoiced because the clients had building contracts with me and finance through banks, so everything was properly accounted for in order for their banks to release funds.[45]

1. The Wife worked during the relationship but did not state what she earned:

I was not a stay at home mother during the marriage. I did employed work during the marriage as well as joint business work. Between 2001 and 2004 we operated a business together known as [S Business]. Other external work was:

a) Between 1996 and 1998 I worked as an assistant at the [U Centre] in [Town K].

b) Between 2004 and 2007 I was a casual [retail assistant] at [V Company] in [City L].

c) Between 2007 and 2012 I was the bookkeeper for the partnership.

d) Between 2012 and 2017 as employed as [an allied health worker] at the business at the [W Centre].[46]

1. The Husband primarily ran the business and the business income was higher than the Wife's income.[47]That said, the Husband's evidence suggests that income of the business may have been spilt with the Wife in some way, as they operated as a partnership. In Grier & Malphas [2016] FamCAFC 84, Murphy and Kent JJ commented on income splitting arrangements:

141. When the parties to a relationship earn income and derive capital through corporate/trust structures established primarily to lawfully minimise taxation, the indirect contribution of a party who is not involved in the day-to-day operation of those structures is sometimes overlooked. Yet, the "non-active" party can, in truth, be a significant contributor. This Court said more than 30 years ago in Lee Steere and Lee Steere, "it cannot be denied that the splitting of income tax is a direct and immediate financial benefit to the husband and to that extent a direct financial contribution on the part of the wife". So, too, "the issue of the wife's personal liability as a director of the companies ... is a matter of increasing relevance in recent times ... the 'days of the sleeping, or passive, director are well and truly over."[48]

1. Post-separation, the Wife continued to pay the mortgage on the B Street property and pay the rates for both the 1 B and 2 B Street lots.[49]Under cross-examination, the Wife said that she was paying $1,470 per month on the mortgage and $30 per week towards the rates.
2. The Husband alleged that, at the time of separation, there was $160,000 remaining on the mortgage,[50] noting that the mortgage has now been paid off from the sale proceeds of the 2 B lot. The Wife's financial statement revealed that as of September 2024, the mortgage stood at $141,000,[51] suggesting that she paid approximately $19,000 off the mortgage post-separation.
3. Post-separation, the Husband purchased three motor vehicles that form a sizeable proportion of the agreed asset pool, as Mr Trezise submitted:

The balance sheet is contentious only in relation to the vehicles identified as items 7,8 and 9. The husband nominally contends that the items should be excluded as they were purchased by him from income accrued after the parties' separation, and in circumstances where it could not be seriously suggested by the wife that she was making post-separation contributions in other areas; for instance, with parenting non-adult children. He concedes, however, that the items can properly be included.

If those items are to be included in the balance sheet at the insistence of the wife, there will need to be, and should be, a commensurate adjustment in the assessment of the contribution factors in the husband's favour. Those items currently comprise 8.5 - 9 per cent of what is expected to be value of the net assets available for adjustment following the agreed sale of the real estate.[52]

1. Mr Williams submitted that the Husband's contributions, in this regard, were offset by the Wife's post separation contributions to the mortgage and rates. That submission has some attraction, but I also accept that the Wife's occupation of the home, to his exclusion, can be regarded as an indirect financial contribution of his, as confirmed in MacKinnon & Talbot [2023] FedCFamC1A 156:

In Meadows & Meadows (No. 3) [2020] FamCAFC 124 (at [152]), the occupation of a former matrimonial home was considered to be an indirect contribution by the spouse not in occupation, even though the title to the former matrimonial home was held by the spouse in occupation: see Meadows & Meadows (No. 2) [2019] FamCA 491. The fact that the interest of the appellant may be only an inchoate right at common law (until property settlement orders are made), does not restrict consideration of the use of the property pursuant to s 90SM of the Act as between the spouses.[53]

1. Meadow's case is, however, distinguishable from this one, as there the Husband paid all outgoings for the property, including the mortgage, whilst also paying rent.[54]Here, the Wife has paid the mortgage and rates for eight or nine years, whist the Husband was accommodated, largely free from formal rent. That said, the occupation of the home by the Wife is an indirect contribution of the Husband.
2. Considering all these matters, the Husband made greater financial contributions to the marriage.

Section 79(4)(b): direct and indirect non-financial contributions to property

1. The parties spent time and money renovating and maintaining the Town J property:

66. The renovation and construction at [Town J] was both of us. [Mr Riley] did 80% and I 20%. I did plastering with him, painting, demolition anything that I could help with.[55]

1. The Wife acknowledged that the Husband was primarily responsible for the Town J build and solely responsible for building the B Street property,[56] which was done using the funds from the Town J property: [57]

75. [Mr Riley] had a hard working offsider called [Mr X]. They helped build [B Street] with the team of people very quickly. We paid everyone but [Mr Riley]. I worked to pay household bills, and no money left over from the sale of [Town J] finance a lot of the build, but we borrowed on the mortgage as well.[58]

1. The Husband contended that building the property himself, he saved the parties approximately $200,000 but did not produce any evidence to substantiate this claim.
2. Post-separation, the Wife said she maintained the B Street property, but did not provide specific details about this, other than saying she re-stained the deck in 2021.[59]Both parties agreed that the Husband did not make any contributions to that property post-separation.[60]
3. The Husband made greater non-financial contributions than the Wife, particularly to the construction of the Town J and B Street dwellings.

Section 79(4)(c): contributions to the welfare of the family, including contributions as homemaker or parent

1. The Court must not give the parties' contributions to the family, including those as homemaker and parent, token weight. In Dawes & Dawes [1989] FamCA 71 the Full Court stated:
   1. Although it is difficult, as it always is in such cases, to put one's finger squarely on what led his Honour to so undervalue the Wife's contribution, we think that one significant matter which did so was that he failed to give any weight to the fact that the Wife's performance of her role as homemaker and parent during the 30 years of cohabitation was not just a contribution under s.79(4)(c) (which he subsequently recognized to some degree) but was also a significant contribution under s.79(4)(b). That point was made by the Full Court (Nicholson, C.J., Murray and Buckley, JJ.) in In the Marriage of Napthali [1988] FamCA 9; (1988) 13 Fam LR 146 at p 151, where their Honours said:-
      1. Turning now to the second ground of appeal, (which was that 'the court erred in law in failing to take into account contributions made by the Wife during the marriage as homemaker and parent') it is apparent that nowhere in her Honour's judgment does she consider the contribution of the Wife to the business assets as a home - maker and parent. It is clear that the Wife did perform this role and nowhere in the evidence or in the submissions was any criticism directed at her capacities in this regard. It is to be noted that in Mallet v. Mallet [1984] HCA 21; (1984) 9 Fam LR 449; (1984) FLC 91 - 507, the High Court whilst rejecting the proposition of a presumption of equality, approved statements by this Court that the purpose of s 79(4)(b) is to give recognition to the position of the house Wife who by her attention to the home and the children frees her Husband to earn income and acquire assets and also approved the proposition that the contribution made by the Wife as a home - maker and parent should be recognised not in a token way but in a substantial way: see Gibbs C.J. at Fam LR 451; FLC 79,111; Mason J. at Fam LR 461 - 2; FLC 119 - 20."[61]
2. The Husband acknowledged that the Wife was the primary caregiver of the children, however, said when they were younger and the parties were running the store together, that the care of the children was equal.[62]
3. The Wife stated that she was the dominant carer for the children and homemaker:[63]

55. I was responsible for the children's extra activities during the marriage. There was [sport] every Wednesday night for most of our primary school years 3 to 6. [Mr E] played for the local roster and school roster and was often doing tournaments.

...

62. As [Mr Riley] worked, I did the majority of the running around for the children. I loved doing it for them.

...

64. [Mr Riley] did contribute to home duties when needed but I would say that I did 85-90%. I cooked 95% of the time and did all the shopping. I did all the housework, washing, ironing, making beds and paying bills, including the partnership and household bills.[64]

1. The nature of the Wife's contribution to the care of the children was noted by Ms G:

The way I see it, dad checked out on all of us when we were teenagers...

By the time that we were 14, dad was largely absent from the household or doing things that we did not even know about when he was not working.[65]

1. That said, the Wife agreed that the Husband would care for the children when she was undertaking her training to become an allied health worker.[66]
2. I accept the Wife's evidence, which was not seriously challenged. The Wife's contributions to homemaking and parenting were greater than the Husband's.

Were the Wife's overall contributions made more arduous by virtue of the Husband's violence?

1. The Wife devoted a substantial part of her affidavit to her claim that she and Mr E were subject to years of family violence from the Husband and her contributions were made more arduous as a result.
2. The Wife and Ms G described the following instances of family violence:
   • Seven months into the parties' relationship the Husband smashed a camera in front of the Wife after arguing at a friend's wedding.[67]
   • In 1997 when the Wife was pregnant with Ms G, the Husband hit the Wife with an open hand.[68]
   • In April 2000, the Husband punched the windscreen of a truck after the parties had an argument.[69]
   • In 2002 the Husband 'snapped' and grabbed her by the throat and held her up against the wall and smashed the coffee table in the house.[70]
   • The Wife also stated that approximately twice a year in the early years of the relationship, the Husband would grab her by the throat and hold her up against the wall. The Wife says she learned to step away when he was mad and try to calm him down to stop him from grabbing her.[71]
   • Ms G recounted an event where the Husband assaulted Mr E and held him on the ground, with Mr E's head hitting the ground numerous times. Ms G said this occurred because Mr E used the Wi-Fi. [72]
   • Both the Wife and Ms G recounted Mr E being assaulted by the Husband when he was a teenager.[73]
3. The Wife also described the impact of her experiences upon her:

45. During the marriage I had to work so hard to keep myself stable in a relationship where violence was potentially only seconds away. I continued to work in what I would describe as a survival mode after the separation.

46. I knew that I had to keep working, but I also needed to address my mental health and capacity to work while dealing with [Mr E]'s ongoing mental health and drug addictions.

47. In 2017 went to see psychologist [Dr P] to address my mental health issues and to look at why I was always living in fight or flight mode.

48.1 also had a strong desire to help my daughter [Ms G] with her daughter after [Ms G] had come out of an abusive relationship herself.

...

52. I was a completely broken person when my marriage finished but I had to keep going.[74]

(Emphasis added)

1. The Wife's Psychologist, Dr P, whose evidence was unchallenged, stated in her affidavit:

11. In 2018 [Ms Riley] presented with low mood and anxiety in relation to the relationship. She reported at the time that her manage had been marked by emotional abuse, extramarital affairs on his part and that he was physically violent to her about twice per year. She also reported that interactions relating to wanting to work towards financial separation raised significant anxiety in her at the time.

12. In the time I was seeing [Ms Riley], particularly in 2018 and 2019, she presented with symptoms of anxiety and although she was doing some work she was not able to work at full time capacity. The psychological work focused on trauma recovery and reduction in anxiety and she had a reasonable treatment response. She learned to manage her anxiety and emotions more effectively although there was not a complete resolution of her anxiety.[75]

1. The Husband admitted that he assaulted the Wife in September 2015, by hitting her across the face with an open hand. The Husband was charged and pleaded guilty to common assault.[76]
2. Subpoena information from Tasmania Police, exhibited as W1,[77] contained a Police Family Violence Order, made in September 2015, with basic conditions that the Husband not threaten, harass, abuse or assault the Wife. The information also included the 'Facts for Prosecutor' regarding the Husband's assault upon the Wife which included the following:

During the interview the defendant stated that;

• That he and the victim had an altercation about Facebook.

• That they were both looking at their phones.

• That words were said about a previous separation.

• That he believed the victim inflamed the situation.

• That he slapped the victim with the back of his left hand.

• That the back of his hand connected with her cheek.

• That he believed he was provoked.

At the conclusion of the interview the defendant was arrested, charged and bailed in respect of the offence. He was also issued with a Police Family Violence Order.

The victim later attended hospital for X-rays to be taken. She suffered bruising, a small abrasion, swelling to her nose and flow out bruising to both eyes. She subsequently had photographs taken of her injuries by an officer from Forensic Services.[78]

(Emphasis added)

1. The Husband stated in his affidavit that this incident was the only time where there was any violence during the relationship:

36. [Ms Riley] has told me she is pursuing a claim in the property settlement for family violence she alleges I committed during our relationship. There is only incident that would be at all relevant to this. Sometime in 2015 or early 2016 I was having a bath and scrolling through Facebook marketplace and news feeds on my mobile phone. When I got out and got dressed I sat down on the couch next to [Ms Riley]. She had been drinking (she had a glass of wine she was holding and drinking from). She appeared to me to be in a bad mood. She started accusing me of talking to other women on Facebook. I denied this and showed her all my messages I had but she continued to accuse me and then accused me of having an affair. I did the wrong thing then**. I got up from the couch and with the back of my hand I slapped her on the cheek and told her to "shut the fuck up".** [Ms Riley] reported this to the police and I cooperated fully. I was charged with assault and pleaded guilty.

37. This was the only time there was any violence in our relationship. We had the occasional argument over the years of our marriage where we both yelled and swore at each other but we both did this. A part from that one time in 2015/2016 I have not otherwise had any police charges for family violence or family violence orders issued against me.[79]

(Emphasis added)

1. The Husband dedicated his affidavit filed 27 September 2024, to the allegations of family violence, denying that he engaged in the other physical violence as alleged:

I have never done anything of the sort alleged in paragraph 31 of [Ms Riley]'s affidavit. I have never and would never strangle or hold [Ms Riley] by her throat. I am actually quite offended and insulted that she would make such allegations. Apart from that one time I have explained in my trial affidavit I have not been in trouble with the law for any matters of violence against [Ms Riley] or any other person. I do not have any temper or anger problems. If anything, [Ms Riley] was the one who was quick to get angry. She is very quick witted, opinionated and sarcastic and would often say nasty things without having thought about it first. In that way she was quite intimidating. I was the placid one in our marriage and I found avoiding her by going to the shed was the easiest way to manage her when she was moody or angry or accusing me of having affairs.[80]

1. The Husband also denied that he had ever been violent to Mr E:

Paragraph 38 of her affidavit is true in part but an exaggeration and untrue in other parts. I have never punched [Mr E] nor has [Ms G] ever punched me to the face. [Mr E] was difficult to parent from an early age for us both. He has food and severe skin allergies which frustrated him and made him angry but his behaviour worsened when he started early puberty, about 10 or 11 years of age. He was at times violent to both of us and his sister. [Ms Riley] used the wooden spoon to try and control and settle him but I used bear hugs and occasionally held him to the ground to restrain him when he was at risk of hurting [Ms G], [Ms Riley] or our property. His behaviour was terrible at high school as well. He had numerous detentions and internal suspensions.[81]

1. He had initially sought to rely upon an affidavit from Mr E, but chose not to call him as a witness. Given the fragility of Mr E's mental health, the decision was a wise one and I accept that there was a reasonable explanation for Mr E not attending court. Consequently, Mr E's affidavit was not read. I do not draw any inference because of the Husband's failure to present Mr E as a witness.[82]
2. The Husband concluded:

18. There are parts of [Ms Riley]'s affidavit that I cannot comment on as she does not talk of factual matters, or she talks of her feelings and there are other parts relating to the history of our roles during our marriage that I have addressed already in my trial affidavit. I do not agree with the inference [Ms Riley] makes that our marriage was bad and or that it was all my fault when there were bad times. We both played a part in that as I have already mentioned. There were occasions also when [Ms Riley] was violent to me. I did not keep notes of when it happened but there were several occasions when she was angry about something and she slapped me with an open hand, punched me to my back, pushed me and or yelled and swore at me and called me names like "dickhead" and "arsehole" and told me that I was "useless" and "stupid". I always walked off from her and did not retaliate even though she sometimes yelled at me to hit her. I knew the best thing to do was to let her calm down in her own time. I never rep1ied this to anyone because I did not feel at risk with her. I am only raising it now because she has not.

19. [Mr E] was a challenge to parent and we both struggled with him and his violence at different times, but we also had many happy family times which included holidays all over Australia (and one cruise which was our only international trip). Both [Ms Riley] and I drank alcohol during our marriage but I would describe us both as moderate drinkers. I was not a heavy drinker and did not prioritise socialising with friends over my family. [Ms Riley] and I often drank with our friends on a Friday and Saturday night. Our friends came to our place, or we went to theirs.[83]

(Emphasis added)

1. In Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 ('Kennon'), which Fogarty and Lindenmayer JJ set out the relevant principle:

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

1. In Martell & Martell [2023] FedCFamC1A 71; (2023) 66 Fam LR 650, Aldridge J explained the principle in a more modern context:

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

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

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

More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to "quantify" that effect (Maine v Maine [2016] FamCAFC 270; (2016) 56 Fam LR 500 ... at [47]-[52] (Maine); Britt v Britt [2017] FamCAFC 27; (2017) 56 Fam LR 526 ... at [74]-[75]; Keating v Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158 ... [27]-[43], [52]-[67]; Benson v Drury [2020] FamCAFC 303; (2020) 62 Fam LR 1 ... at [47]-[50]).

It seems to me that regarding Kennon claims as "special" or "exceptional" is apt to mislead. In reality, all the majority said in that case was that a person's contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244...; Jabour v Jabour [2019] FamCAFC 78; (201) 59 Fam LR 475...).[84]

(Emphasis added)

1. The approach was confirmed in Dajani & Dajani [2025] FedCFamC1A 28, McClelland DCJ, Aldridge & Jarrett JJ affirmed the above, stating:

It can be seen the focus is on the contributions made by a party and the nature of them. The circumstances in which family violence could make that contribution more arduous and deserving of greater weight can easily be envisaged. The point is, however, the recognition of the true nature and extent of the contributions and not punishment of the perpetrator.[85]

Returning then to the case before this Court, it is important to note that express evidence that the contributions were made more arduous or worthy of significantly greater weight is not required. Such a finding can be inferred if the evidence permits such a course.[86]

(Emphasis added)

1. The Full Court in Boulton & Boulton [2024] FedCFamC1A 132 confirmed that behaviour of the type that attracts the 'Kennon' considerations, can be relevant to both the assessment of contributions and section 75(2) factors:

There is no error of principle by taking into account findings of prior family violence in evaluating past contributions and then considering its prospective impact in combination with other factors as relevant to findings as to future earning capacity.

The projected effects of family violence on the wife were considered by the primary judge, coupled with both the history of the marriage dynamic whereby the wife was not in employment for many years while caring for the children and her future full-time care of them. The accumulation of these facts grounded the predictive prospective factor as to the wife's future earning capacity from known uncontroversial historical facts and from present circumstances.[87]

1. Finally, in Scaletta & Scaletta [2024] FedCFamC1A 87, the Full Court confirmed that a course of conduct does not have to be established, and a single incident may be sufficient:

Secondly, it takes only a moment of thought to envisage that a single event could give rise to a permanent disability which would make all subsequent contributions more arduous. Indeed, as Kennon itself explains, the focus is on the nature of the contributions, as the above quotation makes clear (see also Martell at [24]-[28]).

Thus, a "course of conduct" is not a prerequisite for considering whether the nature and extent of contributions has been made more arduous.[88]

Did the Husband commit acts of family violence and otherwise act as alleged by the Wife?

1. Justice McEvoy in Stamatou & Stamatou [2022] FedCFamC1F 241 made the following observations regarding fact finding in cases where there are disputed allegations of family violence:

180. Before turning to the wife's evidence in this respect, it is desirable to say something about the corroboration of family violence**. It is well settled that a party does not require their evidence of family violence to be corroborated before such evidence can be accepted.** Given the tendency of domestic violence to occur in circumstances where there are no witnesses other than the parties to the marriage and perhaps their children, this must necessarily be so: see Keating & Keating [2019] FamCAFC 46; (2019) FLC 93-894 at [42] (Ainslie-Wallace and Ryan JJ) ("Keating"); Hendy & Penningh [2018] FamCAFC 257; (2018) FLC 93-879 at [72] (Ainslie-Wallace, Ryan & Austin JJ); Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [79] (May, Coleman & Le Poer Trench JJ) ("Amador").

181. Whilst as a general principle it is important to identify a core consistency in the evidence of an alleged victim of family violence rather than concentrating on supposed inconsistencies in the evidence, this does not permit a court to ignore or otherwise dismiss inconsistencies in that evidence: Keating at [62] (Austin J); Zuen & Lhao [2020] FamCAFC 84 at [22]- [24] (Ryan, Aldridge and Stevenson JJ) ("Zuen & Lhao"). However the reference to the importance of identifying a core consistency, while important in cases involving family violence, must not obscure the reality that there cannot be a finding of family violence otherwise than in accordance with s 140 of the Evidence Act and having regard to all relevant matters: see Amador at [86]-[93]. Where allegations of family violence are made it is necessary for the Court to make findings where the evidence enables that to be done: see Zuen & Lhao at [24].[89]

(Emphasis added)

1. The Wife's allegations meet the definition of family violence, as defined in section 4AB of the Act:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

1. Under cross-examination the Wife maintained her position that her allegations, set out in her affidavit were true, while conceding that she would sometimes be verbally abusive and sarcastic to the Husband. She also agreed that she would use the wooden spoon to discipline the children if required.
2. I found the Wife's evidence in her affidavit and under cross-examination, to be detailed, consistent and compelling, including that at paragraph 31 of her affidavit:

[Mr Riley] seemed to have a switch that triggered him. He could be very placid, very loving, very helpful but if I said run one wrong word then I was in trouble. We were on and off with happy or strained over the next few years. [Mr Riley] could be abusive to me but also loving. He would lie about small things which would upset me and when I confronted him, his response was to grab me by the throat and hold me up against the wall. His eyes would go black like he wasn't there, and he would even have white froth at the corners of his mouth. I would beg for him to stop and tell him that I loved him and say that it's me it's me. He wouldn't squeeze my throat hard. He would just grab me by it. This happened maybe twice a year for 3 to 4 years in the early part of the decade. I learnt to move away from him quickly and talk to calm him down. The physical distance was a safety barrier. [Mr Riley] didn't seem to be there. It was like he didn't know me.[90]

(Emphasis added)

1. The Wife claimed that she was also impacted by the Husband's violence towards Mr E. To help substantiate her allegations regarding Mr E she annexed to her affidavit a photograph,[91] apparently showing the injury Mr E suffered at his father's hand. The photograph does not clearly show any actual injury, although the Husband agreed that Mr E's face looked 'swollen'.[92] The Wife's evidence was supported by Ms G's evidence:

7. There were multiple times when I saw [Mr E] physically assaulted by my father. The way I see it, dad checked out on all of us when we were teenagers, but he still had a special place of anger for [Mr E] and would take his anger out on him.

8. By the time that we were 14, dad was largely absent from the household or doing things that we did not even know about when he was not working.

9. In 2023, I accompanied [Mr E] to the [City L] Hospital where the doctor told [Mr E] that he had diagnosed him with Border line Personality Disorder which was linked to trauma as a child. I heard these words myself.

10. Even in recent weeks, [Mr E] has been deeply troubled and attempted to take his own life, again.

11. When the assault took place in 2015, I was pregnant with my daughter, [Y], and I made a statement to the police. I will never forget that when I spoke to my father to get him to stop what he was doing to my mother, after he had hit her, he said to me, "Do you want one next?".

12. When I was younger, before I was 10, on one day I distinctly recall going to [City Z] with my father. Something happened on the road between the car that we were in with my dad driving and another driver. My dad pursued this car, stopped and there was a fight that took place. I remember rushing off to the Police Station and my father saying to me, "Don't tell your mum what happened".

13. Again, on a date that I cannot remember, but some years later, there was an argument that broke out between dad and [Mr E]. My dad had grabbed hold of [Mr E] and bashed his head into the ground. This was near the house. I intervened and was hitting dad to get him off [Mr E]. He later told me that I had given him a black eye.[93]

(Emphasis added)

1. Ms G was unshaken when she was questioned about these matters, including adhering to the term 'bash' as the appropriate description of what she witnessed when the Husband assaulted Mr E in front of her. She did, however, concede that rather than repeatedly hitting Mr E's head into the ground, as her affidavit suggests, she said her father held Mr E's head on the ground. When asked what she meant by her witnessing her father's violence towards Mr E, 'multiple times', she clarified, 'every year'.
2. There is a core consistency to the Wife's the allegations - the neglect of the family, the abuse of alcohol, the hits to the face, the grabbing of her throat, the destroying property and the violence towards Mr E. The violence occurred a few times each year. Ms G's evidence helped corroborate some of her claims regarding Mr E, as did the Husband's conviction for common assault.
3. The Husband's denials did not sit well with the corroborating evidence of Ms G, his conviction for common assault and his threat to Ms G _'do you want one' - _ which he did not mention in his affidavits _ - _ all establishing that he was unable, at times, to control his violent emotions when angered. The Wife's presentation and account to Dr P was also generally consistent with the claims in her affidavit.
4. The Husband's denial of his behaviour towards Mr E, as evidenced by Ms G, gives me cause to doubt his denials of violence generally. His claim to police that he was 'provoked'[94] when he assaulted the Wife showed little insight at the time. Even if the Wife could be verbally abusive, and even sarcastic, this was no excuse for his actions. The assault led to her being treated in hospital for facial injuries, indicating that she was hit with some force.
5. I am persuaded, to the requisite standard, that the Wife and Mr E suffered from family violence perpetrated by the Husband over the prolonged period alleged by the Wife.

Did the Husband's behaviour make the Wife's contributions more arduous?

1. Mr Trezise submitted that even taking a generous view of the Wife's evidence she did not establish an evidentiary nexus between the conduct of which she complained and her capacity to make relevant contributions. He referred to her answers, given under cross-examination, where she agreed that she 'performed well' at undertaking the homemaking, parenting and other contributions she mentioned in her affidavit.
2. The Wife did present as strong and stoic, but said, and I accept, that she 'had to work so hard to keep myself stable in a relationship where violence was potentially only seconds away'. I repeat how she described the Husband when he assaulted her:

His eyes would go black like he wasn't there, and he would even have white froth at the corners of his mouth. I would beg for him to stop and tell him that I loved him and say that it's me it's me. He wouldn't squeeze my throat hard. He would just grab me by it. This happened maybe twice a year for 3 to 4 years in the early part of the decade.[95]

1. Although the Wife spoke of this physical violence occurring mainly in the early years of the relationship, the threat remained real as shown by the assault upon her in 2015. The Husband's violent nature was also apparent from his treatment of Mr E, which Ms G witnessed - clearly impacting her. The Husband's ability to become violent effectively permeated the relationship.
2. After separation, the Wife spoke of being in 'flight or fight mode', as her psychologist treated her for trauma recovery and anxiety. The Wife said that she was not able to work full-time because of her anxiety.
3. I am satisfied, given my findings as to the nature of the violence the Wife endured and witnessed, together with her evidence as to its impact upon her and the evidence of Dr P, that her contributions were made more arduous because of the Husband's violent behaviour. That said, I accept that the Wife was able to contribute at a high level during the relationship notwithstanding her experiences of violent behaviour, and its impact upon her. Simply because the Wife was able to contribute at a high level does not mean that she did not, at times, do so arduously. As she said, she had to work on keeping herself 'stable'. There will be an adjustment to the Wife.

Conclusion regarding the parties' contributions

1. Mr Williams submitted that the Wife's contributions should be assessed at a 55/45 division in the Wife's favour, because she was the major homemaker and parent - a job she largely undertook alone. In relation to any Kennon adjustment, it was submitted that the family violence the Wife experienced impacted her contributions to the relationship and still deeply impacts her to this day.
2. It was further submitted that the Wife's advantage in occupying the home post separation was countered by her significant payments towards the mortgage, whilst the Husband had little expense associated with his post-separation accommodation.
3. Mr Trezise submitted that the parties' contributions should be assessed 45/55 in the Husband's favour. He submitted that the parties did not bring in substantial assets at the commencement of the relationship and equally contributed within their respective roles during the relationship. In relation to the Kennon argument, Mr Trezise submitted that the Wife, even on the most favourable assessment of her evidence, did not establish that her contributions were made more arduous by virtue of the Husband's behaviour. Finally, the Husband's post-separation contribution of the motor vehicles to the pool for division was significant and must be given weight.
4. Having assessed all the contributions of the parties since 1997 when cohabitation commenced, I conclude that their contributions be assessed at 52.5 per cent for the Wife and 47.5 per cent for the Husband. In dollar terms - if the pool achieved a net value of $846,950 (upon the sale of the home) - the Wife would be entitled to assets valued at $444,648.75 and the Husband $402,301.25 - a differential of $42,347.50.

Section 79(4)(d)-(g), including s 75(2) - other factors

Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage

1. The Full Court in Beck & Beck (No 2) (1983) FLC 91-318 defined 'earning capacity' for the purposes of section 75(2)(k) and therefore section 90SF(3)(k), applicable the Act generally, as:

a capacity to obtain income which could be used to provide maintenance ... and not merely as current income from personal exertion or from the use of personal skills.[96]

1. The Wife completed her qualifications to become an allied health worker eight years ago. Under cross-examination she spoke of wanting to undertake further training:

I would like do training in [counselling] - I also help mums - be a listening ear as part of [allied health work] - do training in that and I am also doing [community support work][97]

1. The Husband will be able to continue running his construction business.
2. Neither party's proposed orders affect the other's earning capacity.

Section 79(4)(e): the matters referred to in subsection 75(2) so far as they are relevant

1. It is not the task of a Court, with jurisdiction under Part VIII, to engage in social engineering under s 79(4)(d)-(g) - that is, to serve any 'moral' or 'charitable' (but non-legal) ends outside the bounds of s 79.[98] The Full Court in Beck & Beck (No 2) (1983) FLC 91-318 explained that

[i]t is the financial consequences of all of the relevant matters that are to be taken into account and the section is so drafted to effect this purpose while excluding matters of conduct in a moral or non-financial sense.[99]

1. Whether in relation to maintenance or property settlement, the Court cannot assess or account for the s 75(2) (or s 90SF(3)) factors without satisfying itself that it bears upon a party's financial circumstances.[100]

Section 75(2)(a): the age and state of health of each of the parties

1. The Wife is 50 years of age, and the Husband is 52. The Wife did not adduce any evidence of her age or physical health that would impact her ability to work. The Wife does not work full-time, and her psychologist referred to her experiences of family violence impacting her ability to do so in 2018 and 2019:

12. In the time I was seeing [Ms Riley], particularly in 2018 and 2019, she presented with symptoms of anxiety and although she was doing some work she was not able to work at full time capacity. The psychological work focused on trauma recovery and reduction in anxiety and she had a reasonable treatment response. She learned to manage her anxiety and emotions more effectively although there was not a complete resolution of her anxiety.[101]

1. The Wife's engagement with her psychologist ended in January 2024, and the Wife did not present any evidence to suggest that her current choice to work part-time is driven by her exposure to past violent behaviour.
2. The Husband did refer to shoulder injuries he sustained at work, stating in his affidavit that he will be able to continue to work as normal provided he does not lift his arms above his shoulders.[102]No evidence was produced to prove that his earning capacity is impacted by his past work injuries.
3. I am satisfied both parties have the ability to work and earn income.

Section 75(2)(b): the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

1. In Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595, the Full Court stated:

It has long been recognised that in most cases the most valuable "asset" which a party can take out of the marriage is a substantial, reliable, income-earning capacity: see Best and Best [1993] FamCA 107; (1993) FLC 92-418 at 80,295. [103]

In addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails: see Langford (16 January, 1995, Full Court, not reported).[104]

1. At trial, the Wife submitted that she is currently earning $32,000 per year as an allied health worker,[105] working a few days per week, which meets the demand for her business:

84. I have a steady clientele in [...] with a focus on [...]. I currently have about 30 clients a month, this has reduced over the last 1-2 years from 40-50 per month as interest rates and cost of living has seen regular clients drop out.

85. I have a mostly female clientele. I have women that have been coming to me for 8 years now. Bookings are permanently re-booked either monthly or 3 weekly, fortnightly or even weekly depending on client need.

86. Some clients book a 2 hour spot every month, others it is just one hour. Over the years I have tended to extended families over time and all my business has been via word of mouth.

87. Much of my activity is for younger women and associated with pregnancy where I have helped many young women before and after childbirth.[106]

1. The Wife also stated that she was receiving jobseeker payments as her client base has shrunk.[107] This gives the Wife $700 per week to pay her expenses. Under cross-examination, as extracted earlier, the Wife said that she hoped to add to her training in the years ahead.
2. Under cross-examination, the Husband stated that in the 2023-2024 financial year, he earned $42,600 - $44,483,[108] which had been his consistent income since separation. In his updated financial statement he stated that his weekly income was $807, but he did not fully set out his weekly expenses. Mr Williams submitted, however, that his income was understated:

Here, the Respondent is a licensed builder. He still trades but only enough to lower his taxable income to that of the Applicant. His evidence says nothing of his hourly rate, work in progress, his ability to gain new work, work for others and just about anything that may relate to his income earning capacity. His evidence is and will be categorised as of a businessperson who ignores his own business in, as if he is idling his boat through the shallows of litigation until he reaches the deep water on the other side where the engine is free to rev and income and wealth will rapidly emerge from a once distant horizon.[109]

1. Mr Williams submitted that the Husband had a higher income earning capacity, however, the exact figure is unknown:

I can't say that pushes his income from forty thousand dollars a per year to fifty-five thousand dollars, but there is opportunity in business, there's a - demonstrated evidence of link with people who do building work where he had put himself down as the builder, and was going to be involved in building at - at the minimum at a supervisory level.

...

That - that when - when a person is giving evidence and saying 'not by job, not by job, not by job' it would have been quite different if he's - "Yes, look I am involved in that - I am part of the project I am doing these things which could classify as 'work' and this is our profit share arrangement." Now of course, that didn't happen, but there's nothing stopping that, legally, from happening - that's the opportunity to earn income.[110]

1. Under cross-examination, the Husband was questioned about his representation made in insurance documentation for his construction business - exhibited as W4 - where he estimated his gross turnover to be $670,000.[111]Under cross-examination, he said that the figure of $670,000 in turnover was correct, but that the money 'would not touch me' and would 'go to the young fellas'.[112]
2. The 'young fellas' are the Husband's nephews, Mr AA and Mr BB, whom, he claimed, were conducting building work using his building licence, from which he received no financial benefit. He agreed that he had increased his insurance cover from $250,000 to $900,000 - to cover larger projects - but insisted he would not receive a financial benefit, even though he was taking on the risk. He agreed that the cost of the higher insurance, to him, was $6,000 and that his nephews had not yet paid anything towards that cost. Exhibit W4 confirmed the three buildings that were to be constructed during the insurance period:[113]

1. This information was not disclosed by the Husband in his trial affidavits and only came to light under questioning. When asked why he had not disclosed this information earlier, he simply repeated that he was not obtaining a financial benefit.
2. The Husband's name was also associated with two building contracts - with N Pty Ltd as the builder - which were exhibited as W6. These contracts related to the construction of two homes at Town CC and Town DD, with a value of $275,000 each. The contracting parties are the owners of each block of land and N Pty Ltd. The Husband, however, signed the contracts for N Pty Ltd, even though he claimed to have no interest in that company. He also accepted that he signed the 'start work notice' on each occasion.
3. A company search of N Pty Ltd did not reveal the Husband to be an office holder, but its letter head - exhibited as W5 - displayed the Husband's building licence number. This information came at some surprise to the Husband, who said it 'was wrong'.
4. This information again came out under cross-examination, and differed from his initial answers, when did not mention his involvement with N Pty Ltd and its director, Mr O. He simply volunteered that he was allowing his nephews to use his licence so they could take on building work. Ultimately, it was revealed that his nephews are employees of N Pty Ltd and it was N Pty Ltd that used the Husband and his licence to construct the dwellings at Town CC and Town DD. The Husband also confirmed that he had been to Town DD on four occasions to inspect the workmanship but was yet to inspect Town CC.
5. When asked as to how the arrangement with N Pty Ltd had started, he said that his nephews had explained that they worked for Mr O and he wanted to use his licence. To help them out he agreed. He said that he did not know Mr O prior to this but agreed to take out increased insurance and sign the contracts for the builds, for no financial benefit and N Pty Ltd purchased all the materials. As with his friend Mr R, Mr O is a contractor.
6. This drip-fed information undermined the Husband's credit and led to the trial adjourning and subpoenas issuing while the Court contemplated whether the matter should be referred to M Authority to decide if N Pty Ltd and/or the Husband had breached the Occupational Licensing Act 2005 (Tas). The Court's concern was that the Husband may have allowed his building licence to be used by others improperly, or that it had not been fully disclosed to his clients the true nature of his involvement in the projects - potentially placing their investment at risk.
7. In January 2025, the Husband filed an affidavit to explain his involvement with N Pty Ltd:

In about September 2023 [Mr AA] asked me if [Mr O] could use my building licence to build two properties with his building system with [Mr AA] and [Mr BB] to then work for him (both my nephews are qualified [tradesmen]). I understood that [Mr O] had developed a [...] building system that he wanted to introduce to Tasmania but he did not have his builders licence in place yet. I was happy to help them all out so I agreed. [Mr O] offered to pay me for the use of my licence but I refused as my only condition was that he employ my nephews. This was going to help my nephews with income and experience.

...

[Mr O] has two contracts to build two properties using my licence, one at [Town DD] and the other at Hobart. The contracts are in his name as he is the person responsible for the builds. The purchasers are fully aware of the arrangement [Mr O] and I have. I also met with the purchasers a couple of times (and by FaceTime with the Hobart purchasers) before the contracts were signed by everyone. There was an error in the contracts with my licence number...

...

6. In letting [Mr O] use my licence he has done and will do the work assisted by my nephews and all I have done and will do is attend the sites at critical inspection stages to ensure the work has been completed to the correct standard and meets building regulations. I have attended 3 inspections at the [Town DD] site. That build is complete as far as I am aware. I have not yet been asked to attend any inspection at the Hobart site. I do not know what stage the build is at as I have not been able to contact [Mr O]. I was forbidden by the Court from contacting [Mr O] and my nephews about this matter and I have complied with that direction.

7. I understand that [Mr O] has all the necessary insurances in place so if there is any damage to or loss of the properties or injuries on site there is insurance coverage under his own insurance policies. I also included these two builds on my construction insurance so as to meet my reporting requirements, and again this is common practice. There is actually no home warranty insurance in Tasmania, which is unlike other states in Australia.

8. [Mr O] will reimburse me for the construction insurance cost that I have incurred in including his 2 builds on my insurance policy. That is the only payment I will receive from him. I will not be making any income or profit from his builds. As I have said earlier, all I wanted was for my nephews to have the work he would give them on his building system.[114]

1. Under cross-examination the Husband maintained that he has not and will not receive any benefit from the building of the dwellings, explaining that his sole intent was to help his nephews gain employment and experience. The fact that he signed the relevant contracts and he had been to the building sites, and was personally liable for defects was irrelevant, as he felt there was little actual risk.
2. Unfortunately, the Husband did not bring Mr O to court to confirm the arrangement as set out in his affidavit. Mr O did engage in the court process and appeared by telephone when the question of the referral to M Authority was being contemplated. Why it was that Mr O and the Husband's nephews were not called as witnesses was not explained.
3. A party's failure to call or provide evidence from important witnesses is a matter that can be considered when assessing evidence and can allow the Court to draw certain inferences.
4. Lord Mansfield in Blatch & Archer [1774] EngR 2; [1774] 98 ER 969 stated:

... all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.[115]

1. Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 is a 'particular application' of the rule in Blatch v Archer,[116] stating in relation to the trial judge's directions that:

what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.[117]

(Emphasis added)

1. In Coshott & Prentice [2014] FCAFC 88 the Full Court of the Federal Court made the same observation when referring, with approval, to Lord Mansfield's maxim in Blatch v Archer:
   1. Thus, where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel [ 1959] HCA 8; (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 explained at 93 [440], "[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party's case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied."
   2. In short, the Coshott parties bore the onus of proving the trust over Robert's interest but failed to call or give evidence explaining the documents and transactions on which they rely. Yet Robert, in particular, was in the best position to explain them. This cannot be ignored when weighing the limited evidence they relied upon to support their case with all the other evidence which tended to undermine it.[118]

1. In Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586, Gilmour J at [102]-[105] explained the nature of the inferences that can be drawn when applying Jones v Dunkel:
   1. The authorities state that two inferences are involved in the rule in Jones v Dunkel. First, a court might infer that the evidence of the absent witness would not have assisted the party that failed to call that witness; secondly, a court might draw, with greater confidence, any inference unfavourable to the party that failed to call that witness, if that witness appears to be in a position to cast light on whether the inference should be drawn: Manly Council v Byrne and Anor [2004] NSWCA 123 at [51]; ASIC v Macdonald [2009] NSWSC 287; 256 ALR 199 per Gzell J at [1137].
   2. In Manly Council, the Court of Appeal stated that there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences. This was confirmed by the Court of Appeal in Howell v Macquarie University [2008] NSWCA 26 at [97]- [98], where Campbell JA said, with the agreement of Spigelman CJ and Bell JA (as her Honour then was):

In other words, in a civil trial by judge alone Jones v Dunkel licences, but does not compel, the drawing of inferences when a witness is not called. Whether either or both of the inferences are actually drawn is part of the trial judge's task of weighing the evidence.

1. Further, the Court of Appeal in Manly Council referred to the principles concerning the application of Jones v Dunkel set out by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202 which have been widely regarded as correct although Glass JA was in dissent as to the application of the principles to the facts: per Campbell JA with whom Beazley JA and Pearlman AJA agreed, at [53]. In Payne [1976] 1 NSWLR 191, Glass JA said that whether Jones v Dunkel should be applied depends on establishing three conditions:

(a) the missing witness would be expected to be called by one party rather than the other,

(b) his evidence would elucidate a particular matter,

(c) his absence is unexplained.

105. Glass JA elaborated on condition (b), saying (omitting authorities):

According to Wigmore, par. 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts..., might have proved the contrary...; would have a close knowledge of the facts..., or where it appears that he had knowledge.... I would think it in-sufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.[119]

1. By virtue of Jones v Dunkel and Blatch v Archer, this Court can be confident about drawing inferences against a party and assessing the weight of evidence as unfavourable to a party, if a party chooses not to call elucidating evidence that was within their power to produce.[120]
2. In this case I draw the inference that the evidence of Mr O would not have assisted the Husband's case. I draw the same inference in relation to the Husband's failure to call either of his nephews to court - which again was not adequately explained.
3. The extent of the Husband's earning capacity was also brought into question by virtue of his ability to lend sizeable monies to his friend Mr R. Mr R explained his need for financial assistance in his affidavit:

[Mr Riley] loaned me $25,000 for my business to allow me to pay wages as my cashflow was running low due to a slowing at that time of invoices being paid by my clients (who sometimes take up to 3 months to pay an invoice). I borrowed funds from other people at the time, and without their help I would not have been able to pay my employees for another 2 to 3 weeks while I waited for invoices to be paid.[121]

[Ms Riley] questioned me about a payment I received from a [Mr R] that shows in my accounts. I explained to her that I had loaned to him $25,000 when he had cashflow shortage with his business. It was a short-term loan I gave him which I paid as $20,000 on the 7th of April 2024 and a further $1000 on the 8th of April 2024 from my business account and $4,000 in cash that I had saved up. Through error [Mr R] paid to me to the business account $42,500 on the 31st of April 2024. I returned the overpayment of $17,500 to him from the business account 011 the 11th of June 2024, which is when I was doing my bank reconciliation and I realised there was an error in my accounts.[122]

1. Under cross-examination Mr R confirmed that he asked for the monies from the Husband to meet pressing financial obligations. He said that the monies have been repaid, although, due to an accounting error, he initially repaid too much.
2. The Husband's ability to draw $25,000, $4,000 of which was in cash, to so quickly assist Mr R, when his income is around $43,000 per annum, gives rise to the inference that the Husband has ready access to more monies than his declared income suggests. He has access to the income of his business, and this also allowed him to purchase a number of motor vehicles post separation. This is not a resource available to the Wife.
3. I note that Mr Williams submitted that the Husband was also able to work during the covid years without drawing on his superannuation - unlike the Wife. The only evidence to support this position was the Wife's claim that she withdrew monies from her superannuation in October 2023,[123] but the Husband was not questioned about the proposition.
4. In relation to the Husband's accessibility of work and therefore income, Mr Williams submitted:

My suggestion is that given the Husband's evidence about his business contacts, his work with [T Authority], indeed, in the [regional area], his connections with tradespeople that there is a - there is a vast untapped resource there, that you only have to turn the switch on and things pick up again.[124]

1. The Husband and/or N Pty Ltd was, or is, expecting to make $670,000 gross from the building works set out in Exhibit W4. It is difficult to accept that the Husband did not or will not derive any financial benefit from these building works, given his deep involvement in the projects. His non-disclosure of this valuable information, as well as not calling Mr O, nor his nephews to give evidence, adds to the suspicion.
2. The obligation to make full and frank disclosure is set out at rule 6.01 and following of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ('the Rules').
3. The Full Court in Weir and Weir [1992] FamCA 69 stated:

[W]here there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s75(2) factors.

(Emphasis added)

1. Recently, the Full Court in Hicks & Trustee of the Bankrupt Estate of Hicks [2021] FamCAFC 19 referred to the potential ramifications of failing to disclose:

It is trite that the integrity of the s 79 process heavily depends upon the absolute duty of parties to meet their obligations of full and frank disclosure of all information relevant to the case, including disclosure of their financial position both as to assets and liabilities.

Whilst at one time this Court appeared to adopt the approach in non-disclosure cases that the jurisdiction under s 79 of the Act was limited to making orders with respect to identified, identifiable or quantified assets (see, for example, Monte and Monte [1986] FamCA 1; (1986) FLC 91-757), more recent Full Court authority supports the principle that a party should not be able to take advantage of his or her own non-disclosure such that it may be appropriate to make an order beyond the ascertained property, provided that any order made on this basis can be seen to achieve substantial justice relative to the subject non-disclosure (Weir at 79,593).

(Emphasis added)

1. The Full Court in Gould & Gould [2007] FamCA 609, set out the correct approach in relation to the failure to fully disclose assets, with reference to the decision in Kannis & Kannis [2002] FamCA 1150 ('Kannis'), where the Full Court stated:
   1. While the decision of the Full Court (and indeed also of Holden CJ) in Kannis confirms the earlier decisions which were cited by the Full Court and which establish that a robust approach can be taken by the court in cases of non-disclosure, neither that decision, nor any of the earlier decisions cited, would, in our view, support the approach which the trial Judge in this case took in paragraph 24 of his reasons for judgment, being to reduce his assessment of the Father's contributions of account of the Father's non-disclosure.
   2. Rather the appropriate approach for his Honour to have adopted in this case would have been to have increased the asset pool to take account of non-disclosure by the Father, and indeed his Honour had already done this to some extent in accepting the schedule of assets prepared by the Mother's Counsel (see also paragraphs 12 and 14 of his Honour's reasons). Alternatively, or even in addition, had his Honour been persuaded that on the balance of probabilities there existed assets other than those contained in the asset pool contained in his reasons, his Honour could have made some adjustment in favour of the Mother on account of the Father's non-disclosure pursuant to the provisions of s 75(2)(o), as did Holden CJ in Kannis.

1. In Kannis, the Full Court emphasised the 'absolute' nature of the duty to disclose and stated:
   1. Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute**. Where the Court is satisfied the whole truth has not come out it might readily conclude that the asset pool is greater than demonstrated. In those circumstances it might be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.**

1. In my view this evidence supports Mr William's submission that the Husband's available income and resources are greater than set out in his taxation returns and updated Financial Statement. His ability to quickly lend $25,000 to Mr R (including $4,000 in cash - also supporting the Wife's claim that he is paid in cash from time to time) supports this position.
2. I am satisfied that the Husband's available income was likely higher than stated in his 2024 tax return and the $807 per week put in his updated financial statement.[125] It is not possible, however, to say how much higher. The Husband's 2024 tax return was exhibited as W3. That document evidenced that his gross business income for that year was $238,620. His expenses to achieve that income were $194,512 - including fuel, insurance, and phone/internet - suggesting that some of his personal expenses may have been deducted as legitimate business expenses.
3. The bulk of his expenditure was however, dedicated to 'purchases and other costs' - $92,700 - and contractor/subcontractor and commissions expenses - $55,520. Ultimately, 82 per cent of his income was reduced by deductible expenses, leaving a profit of $44,483.00. Whatever his gross income, his expenses are likely to remain very high. As such, even if he were to receive a financial benefit from the building contracts listed in W4, it cannot be assumed that all of those funds will become monies available for the Husband's use.
4. I find that the Husband has a greater resources and income earning potential than the Wife. It is difficult to determine the full nature of the income discrepancy, but he is able to access funds through his business income as he needs them - a benefit not available to the Wife - and is likely to receive some extra financial benefit from the arrangements that he has with N Pty Ltd. There is no evidence however, that the Husband leads an opulent lifestyle and I am not satisfied that the extra income, not otherwise disclosed, is significant. There will be a small adjustment to the Wife for the differing income earning abilities and resources.

Section 75(2)(c): whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

Section 75(2)(d): commitments of each of the parties necessary to enable them to support themselves and a child or another person that the party has a duty to maintain

Section 75(2)(e): the responsibilities of either parent to support any other person

1. The Wife takes care of her grandchild two days a week to allow her daughter to work:

[Ms G] was very young when [Y] was born, I was needed by [Ms G] to assist greatly. Following the breakdown of the relationship that she was in, [Ms G] lived with me at [B Street] until August 2022. I take [Y] to school 2 days a week and in school holidays I have her 2 days a week so [Ms G] can work.[126]

1. The Husband stated that he will take responsibility for Mr E, as his mental health has declined, resulting in Mr E attempting to take his life twice:

[Mr E] is going to survive his attempt but will require significant psychological intervention for the foreseeable future, which I am expecting I will be responsible for funding as a mental health plan will be inadequate. He will require admission to [EE Clinic] as well but at present they have no beds available, so he remains in the hospital in restraints (he has been violent to staff but he de-escalates when I am with him). He is going to be released to my care to live with me. He is booked to attend rehab at [FF Centre] on [in] October which will give him a placement for 2-4 weeks. He is homeless at present so he will have to live with me after rehab until he can find somewhere permanent to live.[127]

1. Both parties have ongoing involvement in their children's lives, and, in the case of the Wife, her grandchild's life, and such involvement may impact on their ability to earn greater income from time to time.

Section 75(2)(f): subject to s 75(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) an superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside of Australia

1. The parties agreed to roughly equalise their modest superannuation interests.

Section 75(2)(g): a standard of living that in all the circumstances is reasonable

1. Both parties have enjoyed a reasonable standard of living during the relationship and post-separation, which should not diminish whatever orders are made.

Section 75(2)(h): the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income

1. As mentioned, the Wife hopes to add to her qualifications and training in the years to come. Whether this will add to her income earning potential is unknown.

Section 75(2)(ha): the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant

Section 75(2)(j): the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

1. I have already taken this into account when assessing the parties' contributions.

Section 75(2)(k): the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

1. There was a clear demarcation of the parties' roles during the marriage, with the Husband as the primary breadwinner and the Wife as the homemaker. The duration of the marriage did not impact on the Wife's ability to work as an allied health worker post-separation.
2. During the marriage the Husband was able to build his reputation as a builder, by working full-time and developing his business. I have found that he is able to earn a greater income than stated in his tax returns for recent years and has the connections and ability to sustain a higher income than that available to the Wife for the foreseeable future. The duration of the marriage has not hampered him in this regard.

Section 75(2)(l): the need to protect a party who wishes to continue that party's role as a parent

1. Both children are over the age of eighteen, and as such, this is not a relevant factor.

Section 75(2)(m): if either party is cohabiting with another person - the financial circumstances relating to the cohabitation

1. The Wife has not re-partnered post-separation. The Husband is currently in a de facto relationship with Ms F and they live together and share living costs.[128]

Section 75(2)(n): the terms of any order made or proposed to be made under section 79 in relation to the property of the parties

1. I have determined that that the parties' contributions should be assessed as 52.5 per cent to the Wife and 47.5 per cent to the Husband. If, following the sale of B Street, the net pool is valued as it is in Exhibit J1 - $846,950 - the Wife will have an entitlement to $444,648.75 and the Husband $402,301.25 - a differential of $42,347.50.

Section 75(2)(na): any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

Section 75(2)(o): any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account

1. The Wife said that for a short period during the relationship, the Husband's then 14-year-old son, Mr GG, came to stay with them. She also claimed that she ensured the Husband met his child support obligations until Mr GG turned 16 years of age, and, acting as a confidant - noting that Mr GG witnessed his father's violence.[129]I will take the Wife's minor contributions to the care and maintenance of Mr GG into account under this heading.[130]

Section 75(2)(p): the terms of any financial agreement that is binding on the parties to the marriage

Section 75(2)(q): the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage

Section 79(4)(f): any order made under this Act affecting a party to the marriage or a child of the marriage

Section 79(4)(g): any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

Conclusion regarding the matters referred to in s 79(4)(d)-(g) and ultimate outcome

1. Having considered all the factors mentioned - particularly the income earning disparity between the parties - I determine that it is appropriate for there to be a three (3) per cent adjustment in favour of the Wife.
2. This results in an overall outcome whereby the Wife receives 55.5 percent of the parties' net assets and the Husband 44.5 per cent. If the asset pool remained at $846,950 upon the sale of the B Street property, the Wife would receive net assets to a value of $470,057.25 and the Husband $376,892.75 - a differential of $93,164.50. This differential is significant in the context of a relationship of this length, and an asset pool of this size, where neither party has a high income.

Final assessment: a just and equitable exercise of discretion?

1. After assessing contributions and other factors this Court must consider whether, in light of those assessments and the actual property to be divided, the proposed exercise of the discretion under s 79 is just and equitable. In Clauson & Clauson, the Full Court said the following:

... that exercise is not done in isolation; it is done against the background of conclusions already arrived at on contributions, the consequence of which will be in some cases to intrude into the s 75(2) exercise because of the dimension of the former conclusion and the total pool.

It is largely for that reason that it is ultimately necessary to stand back from the process and reach a conclusion which appears overall to be a just and equitable exercise of the discretion.[131]

1. I have decided that the parties' assets be divided on a 55.5/44.5 basis in favour of the Wife. This results in the parties receiving both cash and superannuation, together with the assets that they already hold. Having considered all the evidence, I am satisfied the stated division results in a just and equitable outcome.
2. The final amount to be received by each party from the sale proceeds of 1 B and 2 B Streets will be calculated following the formula set out in my Order. For that purpose, the parties' superannuation interests will be included in the calculation, based on the amounts each party will have upon the superannuation split set out in the Order being actioned. I again note that the Motor Vehicle 1 loan is not included in the calculation of the value of what each part keeps as that debt will be cleared from the sale proceeds of B Street.
3. I make the orders set out at the commencement of these Reasons.

I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

[1] Wife's Amended Initiating Application 18 July 2024.

[2] Husband's Amended Response 4 June 2024, clarified in final submissions.

[3] Affidavit of Ms Riley ('Wife's trial Affidavit') [84]; Trial: Cross-examination of the Wife by Mr Trezise 9 October 2024.

[4] Affidavit of Mr Riley 30 August 2024 ('Husband's 30 August 2024 Affidavit'), [1],[7].

[5] Husband's Case Outline 7 October 2024, 2.

[6] Wife's Trial Affidavit (n 3) [66].

[7] Wife's Trial Affidavit (n 3) [68].

[8] Wife's Trial Affidavit (n 3), [65].

[9] Husband's 14 August 2024 Affidavit (n 4) [36]; Exhibit W1: Bundle of Police records from Subpoena from Tasmania Police, 11.

[10] Examination-in-chief of the Husband by Mr Trezise 10 October 2024.

[11] Wife's Trial Affidavit (n 3),[11]; Husband's 13 August 2024 Affidavit (n 4) [22].

[12] Order of Judge Turnbull in Riley (Federal Circuit and Family Court of Australia (Division 2), LNC769/2023, 5 November 2024).

[13] Exhibit J1: Joint Balance Sheet ('Exhibit J1').

[14] The parties agreed during the trial to a one pool approach and agreed that the Wife should receive a payment of $17,000 from the Husband's Super Fund 1, this sum has been calculated from the total superannuation amount listed in J1 of $35,776 minus $17,000.

[16] It is agreed that this loan will be paid from the proceeds of sale of the B Street property. As such when calculating the final amount to be received by each party from the sale of B Street, the Husband's net assets will be calculated by including Motor Vehicle 1 but will not take into account the loan.

[17] Re-Examination of the Husband by Mr Trezise 20 February 2025.

[18] Affidavit of Dr P 27 September 2024 ('Affidavit of Dr P'), [9].

[21] Evidence Act 1995 (Cth) s 140 ('Evidence Act').

[22] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361.

[23] This trial concluded prior to the amendments to the Family law Act 1975 (Cth) which became operational on 10 June 2025. Those amendments do not apply to this case.

[24] Stanford & Stanford (2012) 247 CLR 108, 122, [41].

[25] Mallet & Mallet [1984] HCA 21; (1984) 156 CLR 605, 608 (Gibbs CJ), noting that the 'very wide discretion to make such order as [the Court] thinks fit' is conferred only 'when [the Court] is satisfied that it is just and equitable that an order should be made', with his Honour further stating that 'there are some broad principles to which the Court is required to give effect, and some circumstances which it is required to take into account' in making an order, and with Dawson J (at 647) referring to the just and equitable requirement as the 'overriding requirement'.

[26] Hickey & Hickey [2003] FamCA 395, [39], noting the remarks of the Full Court in Norman & Norman [2010] FamCAFC 66, [60], at which their Honours state that '[i]t is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result' and that '[f]or all its usefulness and merit [the four-step approach] merely illuminates the path to the ultimate result'. I also note the three 'fundamental propositions' set out in Stanford & Stanford (2012) 247 CLR 108 ('Stanford') 120 [36], as alternative guidance for trial judges, ultimately towards the same objective as the approach in Hickey, namely to cover off on all necessary points and criteria in pt VIII.

[27] Stanford 121 [37], noting the explanatory remarks in Lotta & Lotta [2017] FamCA 50, [283]-[284], importantly that '[s]uch a consideration should not be guided by an assumption that the parties' rights to or interests in property are or should be different from those that then exist' and that 'the Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act'.

[28] Lotta & Lotta [2017] FamCA 50 [289].

[29] Teal & Teal [2010] FamCAFC 120, [70], referring to Phillips & Phillips [2002] FamCA 350 in which, at [68], their Honours discuss the importance of considering the 'real impact' of an order to assess whether the result is just and equitable.

[33] Jabour & Jabour [2019] FamCAFC 78, [60].

[36] Dovgan & Dovgan [2021] FamCA 306, [347].

[37] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J) ('Dickons'); Jabour & Jabour (n 33), [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan (n 36), [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that 'all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder'.

[38] MacKinnon & Talbot [2022] FedCFamC1A 156 [36].

[39] Gadhavi & Gadhavi [2023] FedCFamC1A 117 [30]-[33].

[40] Husband's 13 August 2024 Affidavit (n 4), [5].

[41] Husband's 13 August 2024 Affidavit (n 4), [8]; Wife's Trial Affidavit (n 3), [9].

[42] Wife's Trial Affidavit (n 3), [83].

[43] Husband's 13 August 2024 Affidavit (n 4), [25],[26].

[44] Wife's Trial Affidavit (n 3), [17].

[45] Husband's 13 August 2024 Affidavit (n 4), [30].

[46] Wife's Trial Affidavit (n 3) [83].

[47] Wife's Case Outline 8 October 2024 ('Wife's Case Outline'), 4.

[48] Grier & Malphas [2016] FamCAFC 84, [141] (Murphy and Kent JJ).

[49] Wife's Trial Affidavit (n 3) [76], [80]; that is, until the vacant land at 2 B Street was sold.

[50] Husband's 13 August 2024 Affidavit (n 4) [18].

[51] Wife's Financial Statement 27 September 2024, part 46.

[53] MacKinnon & Talbot (n 38), [51]

[54] Meadows & Meadows (No. 2) [2019] FamCA 491 [87(f)]. In MacKinnon & Talbot (n 38), the Full Court, in re-exercising the discretion, found that the Wife had occupied the premises and while doing so paid $65,000 off the mortgage.

[55] Wife's Trial Affidavit (n 3) [63]-[66].

[56] Wife's Trial Affidavit (n 3) [65].

[57] Husband's 13 August Affidavit (n 4),[11]; Wife's Trial Affidavit (n 3) [75].

[58] Wife's Trial Affidavit (n 3),[75].

[59] Wife's Trial Affidavit (n 3), [79].

[61] Dawes & Dawes [1989] FamCA 71 [73] (Lindenmayer, Strauss and Cohen JJ).

[62] Husband's Financial Questionnaire 17 November 2023, 3.

[64] Wife's Trial Affidavit (n 3) [55],[62], [64].

[65] Affidavit of Ms G 1 October 2024, [7] [8].

[66] Cross-examination of the Wife by Mr Trezise 9 October 2024.

[67] Cross-examination of the Wife by Mr Trezise 8 October 2024; Wife's Affidavit (n 3), [23].

[68] Wife's Trial Affidavit (n 3), [25].

[69] Wife's Trial Affidavit (n 3), [30]; Cross-examination of the Wife by Mr Trezise 8 October 2024.

[70] Cross-Examination of the Wife by Mr Trezise 9 October 2024; Wife's Trial Affidavit (n 3), [33].

[71] Wife's Trial Affidavit (n 3), [31]; Cross-examination of the Wife by Mr Trezise 9 October 2024.

[72] Cross-examination of Ms G by Mr Trezise 8 October 2024; Affidavit of Ms G (n 65), [13]; Wife's Affidavit (n 3) [38].

[73] Cross-examination of Ms G by Mr Trezise 8 October 202; Affidavit of Ms G (n 65), [7]; Wife's Affidavit (n 3), [18]-[19].

[74] Wife's Trial Affidavit (n 3), [45]-[48],[52].

[75] Affidavit of Dr P (n 18), [10]-[12].

[76] Husband's 13 August 2024 Affidavit (n 4), [36]; Exhibit W1 (n 9).

[79] Husband's 13 August 2024 Affidavit (n 4),[36]-[37]

[80] Affidavit of Mr Riley 27 September 2024 ('Husband's 27 September 2024 Affidavit') [12].

[81] Husband's 27 September 2024 Affidavit (n 80) [15].

[82] Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586, Gilmour J at [102]-[105].

[83] Husband's 27 September 2024 Affidavit (n 80), [18]-[19].

[84] Martell & Martell [2023] FedCFamC1A 71; (2023) 66 Fam LR 650, [24]-[28].

[85] Dajani & Dajani [2025] FedCFamC1A 28, [37].

[87]Boulton & Boulton [2024] FedCFamC1A 132, [60] [61]

[88] Scaletta & Scaletta [2024] FedCFamC1A 87, [52]-[61].

[89] Stamatou & Stamatou [2022] FedCFamC1F 241 [180]-[181].

[90]Wife's Trial Affidavit (n 3), [31].

[92] Cross-examination of the Husband by Mr Williams 10 October 2024.

[93] Affidavit of Ms G (n 65), [7]-[13].

[95] Wife's Trial Affidavit (n 3), [31].

[96] Beck & Beck (No 2) (1983) FLC 91-318, ('Beck & Beck') 78,166 (Evatt CJ, Emery and Hase JJ).

[97] Extracted from notes and may not be verbatim when compared to the transcript.

[98] Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595, 81,912.

[100] Jacobson & Jacobson (1989) FLC 92-003, 77,178, at which Nygh J remarks that there 'cannot be any doubling up as between the adjustment in capital position of the parties, which is implicit in sec 75(2) factors [in the context of s 79], and making provision for the periodic needs of a party who suffers from an inability to support [themselves] pursuant to sec 72 of the Act'. Both assessments, on his Honour's remarks, require an assessment of the financial consequences of the factors considered. See also Sigley & Cullen (No 3) [2015] FamCA 825, [42], [105], as an example, in which Cronin J discusses the Applicant 's health as it affected her academic studies, which in turn may have affected her employment prospects.

[101] Affidavit of Dr P (n 18) [12].

[102] Husband's 13 August 2024 Affidavit (n 4) [20].

[103] Clauson & Clauson (n 98), 81, 911 (Barblett DCJ, Fogarty and Mushin JJ).

[105] Cross-Examination of the Wife by Mr Trezise 8 October 2024.

[106] Wife's Trial Affidavit (n 3), [84]-[87].

[107] Cross-Examination of the Wife by Mr Trezise 8 October 2024; Wife's Affidavit (n 3), [86].

[108] Cross-Examination of the Husband 9 October 2024; Exhibit W3: Husband's 2024 Tax Return.

[109] Wife's Case Outline (n 47), 7, [5].

[110] Oral Submissions of Mr Williams 20 February 2025.

[111] Exhibit W4 Insurance Bundle, 14.

[112] Cross-Examination of the Husband by Mr Williams, 9 October 2024.

[113] Exhibit W4 Insurance Bundle, 16.

[114] Affidavit of Mr Riley 30 January Affidavit ('Husband's 30 January 2025 Affidavit') [3], [5], [6]-[8].

[115] Blatch v Archer [1774] EngR 2; (1774) 98 ER 969, 970.

[116] Lavell & Lavell [2012] FamCA 34 ('Lavell & Lavell') [122]-[123] (Murphy J).

[117] Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308 (Kitto J).

[118] Coshott & Prentice [2014] FCAFC 88 [81]-[82].

[119] Australian Securities & Investments Commission v Fortescue Metals Group Ltd [No 5] [2009] FCA 1586 [102]-[105].

[120] Australian Securities and Investments Commission v Rich [439] (Austin J). See also Jones v Dunkel (n 22) (Kitto J) which, with respect to the trial directions forming the basis of appeal, states that 'what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence'.

[121] Affidavit of Mr R 13 August 2024, [3].

[122] Husband's 13 August 2024 Affidavit (n 4), [34].

[123] Wife's Financial Statement (n 51), 8.

[124] Oral Submissions of Mr Williams 20 February 2025.

[125] Husband's Financial Statements 17 November 2023 and 30 January 2025.

[126] Wife's Trial Affidavit (n 3), [11].

[127] Husband's 27 September 2024 Affidavit (n 80), [20].

[128] Husband's 13 August 2024 Affidavit (n 4) [40].

[129] Wife's Trial affidavit (n 3) [15]-[21].

[130] Robb & Robb (1995) FLC 92- 555.

[131] Clauson & Clauson (n 98) 81,911-81,912.