BCI Finances Pty Ltd (in liq) v Binetter

where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, in the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

1. The same argument applies regarding the City C property, due to the wife's failure to call her mother as to the ownership of the City C property.

Is it conceded that the wife's parents gifted the parties funds in about the sum of about $1,699,000 during the marriage?

1. This claim by the wife includes the money gifted for the children's school fees, gifts of cars and computers, money for furniture, rent free accommodation and lump sums towards the purchase and renovation of properties. She provides a table as follows:

Rent free accommodation - average $400 per week for 6.5 years

Live-in Housekeeper Wages ($3,000 per month) for 12 months

Loan support by providing Ms Blayne a stead income ($3,000 per month)

1. Under cross-examination it became clear that much of this was challenged and some of those challenges were conceded.
2. The wife conceded that the $80,000 from her parents to pay off the Suburb EE mortgage was repaid by the parties as was the $100,000 provided to purchase the business.
3. The husband concedes that the wife's parents provided the parties with free accommodation from early 1994 to mid-2000, but not the dollar figure placed on the contribution by the wife. The wife conceded that the amount was a guess, however under cross-examination her evidence was that she placed the value at what others were paying for similar accommodation, such that it was an informed guess.
4. The wife also conceded that she was employed as a secretary by her family and therefore the wage received in the sum of $144,000 is not a contribution in the way suggested in her affidavit material.
5. The husband disputes the value of Motor Vehicle 3 and on his evidence it was purchased for a person named Mr SS although he does not appear to challenge that he had the use of that vehicle.
6. In relation to the $3,000 per month alleged to be paid by the wife's parents for the live-in housekeeper, his recollection is that she assisted the family for a period of three months not for a period of 12 months. He does not challenge that the wife's parents met that cost.
7. As regards Motor Vehicle 1 the husband acknowledges that the wife used this car but argues that it was not given to the wife but rather was a company car that she used. I have considered her evidence that Motor Vehicle 4 she now drives is her parents' company car. I accept that this car was not a gift per se, but rather that the gift was the use of that vehicle.
8. The wife estimates $360,000 for each boy's education was gifted from her parents. Under cross-examination she was insistent that that was the correct amount and not an estimate. She conceded however that she had no documents to support that figure and her parents were not called to give evidence. The husband challenged the amount and gave evidence that the parties also contributed to the cost of the children's education. Having considered the evidence I am satisfied that the wife's parents paid the majority of the school fees and that this was a significant contribution indeed.
9. The husband conceded the gifts of computers for the children and a car for their son. He does not concede Mr KK's accommodation at the City C unit was a contribution from the wife's parents as in his view that property was gifted to the parties.
10. I am of the view that the value of those contributions is unable to be quantified with any precision but they were clearly significant and the parties were very fortunate indeed.
11. Doing the best I can with the limited evidence to hand, I am satisfied that even with the concessions made by the wife, her parents contributed significant funds to the parties during the relationship and that those funds far exceeded those contributed by the husband's parents.

Did the husband perpetrate family violence against the wife? If so were the wife's contributions made more difficult by the husband's conduct in terms of Kennon?

1. In considering the issue of family violence s 4AB of the Family Law Act 1975 (Cth) provides the following definition:

(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):

1. Breaking down the legislative requirements, to satisfy the court that family violence has occurred, the wife must first establish conduct on the part of the husband that was violent or threatening. Then the court must be satisfied that the alleged behaviour coerced or controlled the wife or, in the alternative, caused her to be fearful.
2. I am satisfied that the wife has established that the husband perpetrated family violence including coercive control. The Bench Book[12] describes coercive control in the following way:

Coercive control involves perpetrators exerting power and dominance over victim-survivors using patterns of abusive behaviour that create fear and deny liberty and autonomy. Perpetrators may use physical or non-physical abusive behaviours, or a combination of both.

1. The focus is on a pattern of abusive behaviour. [13] In order to make findings about family violence, there is an onus on the wife to particularise the evidence she relies upon so that the court is able to make an assessment to the necessary evidentiary level. That must, however, be balanced against an understanding that in some cases victims of crime find it difficult if not impossible to particularise traumatic events.
2. The court has been very much assisted by the Full Court decision of Pickford & Pickford [2024] FedCFamC1A 249. The Full Court confirmed that the onus lies firmly with the party alleging family violence. There is however an obligation on the court when considering allegations of coercive control to evaluate the evidence holistically - is the behaviour alleged a pattern of acts characterised by threats, intimidation or humiliation that is aimed at harming or frightening the victim?
3. So as a first step the court must make findings as to whether family violence occurred. If such a finding is made then the court will determine whether the applicant's contributions have been made significantly more arduous by the conduct of the first respondent.
4. The husband submits that the wife's claim should fail on two grounds - firstly that she will not have made out her allegations on the balance of probabilities and secondly that even if she does so she will be unable to establish any linkages, even by inference, between the conduct as alleged and the impact on her contributions.[14]
5. The wife's evidence is particularised in her affidavit. It covers many paragraphs and is detailed.[15] She alleges sexual abuse with detail as to how demands were communicated, sometimes by look or action rather than words. She alleges emotional abuse including denigration and insistence on her acceding to his will as being the role of a good wife. She alleges financial abuse through controlling and monitoring her spending, and she alleges monitoring of her phone and her whereabouts. Her evidence is that the husband's conduct made her fearful, impacted her mental health and caused to act in ways contrary to her expressed wishes.
6. The husband gives evidence that he first became aware that the wife was claiming a Kennon argument on the date her affidavit filed on 18 July 2024 was served - some three and a half weeks prior to the trial. The suggestion is that the husband was taken by surprise and that the late inclusion is a strategic move. The wife submits that victims of family violence are not always contemporaneous reporters, that it takes time and courage to bring themselves to detail the experiences.
7. Each party gave evidence under cross-examination consistent with their respective positions. The husband denied the allegations of family violence, in particular he denied the allegations of sexual abuse, financial abuse, and coercive and controlling behaviour. He did however make certain concessions including the following:

(a) He conceded that he had repeated the saying that wives need to be bashed every three days;

(b) He agreed that he said the wife needed to respect him, clarifying that both parties to a relationship needed to respect each other;

(c) He conceded there were times he got frustrated with the wife but that he forgave her;

(d) He conceded there were times when both parties were upset and did not talk when they were upset;

(e) He agreed that the wife struggled with her mental health;

(f) He conceded that on occasion he told the wife she was stupid;

(g) He conceded that he had received a yellow envelope containing articles about marital rape. The wife's evidence is that she had provided that to the husband. The husband gave evidence that he was upset to receive the articles; and that he did not initially know who had sent them;

(h) He conceded he asked the wife who she had told about the marriage; and

(i) He conceded that he was unhappy about the wife seeing a psychologist and that he felt hurt about her involvement in group therapy - that he did not think it would make anything better.

1. The husband did not address the wife's allegations in his affidavit material as his material was filed prior to her affidavit alleging family violence. He certainly references her hospitalisations, which she claims were a consequence of the alleged abuse. His evidence is that the parties did argue about the contents of the yellow envelope but from that point forward that was the end of their physical relationship, that he did not again approach or ask the wife for physical intimacy.
2. The wife's evidence under cross-examination is that she destroyed the journal in which she kept records of the husband's abuse as she was so ashamed and could not bear to look at it again. I have considered that the family violence alleged by the wife is not the type of abuse that has neighbours calling the police. The coercive and controlling behaviour and sexual abuse that is alleged takes place behind closed doors and is not generally understood or known of in the wider community. It is insidious and it is nasty.
3. I am satisfied that the wife has met the threshold to establish that family violence occurred for the following reasons:

(a) The detail provided in her affidavit evidence, not only as to what occurred but her evidence as to the impact on her mental health and the long term nature of the alleged conduct are persuasive;

(b) Her evidence under cross-examination was consistent with her affidavit evidence;

(c) She made sensible concessions, such as conceding that she had not previously raised the allegations of family violence in affidavit or correspondence form;

(d) The documents tendered reflect that she had reported marital abuse during her hospital admission in 2015 - stating that it was mainly in the form of manipulation and emotional abuse;[16]

(e) The records from 2015 reflect that the wife was already expressing reluctance to take the matter any further;

(f) I found it difficult to accept the husband's evidence that he did not recall aspects of the occasion when the police were called and attended at the home; and

(g) In the concessions that were made by the husband, there was a degree of mutualisation, indicating a failure to accept responsibility which supports the wife's contention that he blamed her.

1. As I am satisfied that family violence occurred as alleged by the wife, I turn to consider whether the family violence as alleged would make her contributions more onerous. I am satisfied that the family violence perpetrated by the husband made the wife's contributions more arduous because:

(a) I accept the wife's evidence as to the impact on her of the family violence;

(b) I accept that she felt exhausted;

(c) I accept that it impacted her mental health struggles; and

(d) I accept that she struggled to attend to household tasks and that she believes that this was due to the impact on her of the husband's conduct.

1. Having made that determination, I am conscious that the Full Court in Benson & Drury [2020] FamCAFC 303; (2020) FLC 93-998 ("Benson") at [35] said:

The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)-(c) or ss 90SM(4)(a)-(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

(Citations omitted)

1. These findings shall therefore be one of the matters considered in the assessment of the contributions to the relationship later in these Reasons.

Has the husband failed in his disclosure obligations and if so what should the consequences of that failure be?

1. I have considered that where a party who bears the evidentiary onus fails in their obligations then that "allows increased strength or weight to be given to primary facts favourable to the applicants and allows inferences favourable to the applicants to be more confidently drawn".[17]
2. There are two ways of dealing with issues that arise due to failure to disclose. This was confirmed by the Full Court in Mayhew & Fairweather [2022] FedCFamC1A 53; (2022) 64 Fam LR 633 at [14]:

The usual way in which defective disclosure is taken into account is either by adding a sum to the pool, reflective of an estimate of the value of undisclosed property ..., or under s 75(2)(o) of the Act. ...

1. In matrimonial property matters s 75(2) (o) states "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account". That allows the court to consider any failures as a factor relevant to the property division.
2. In the case of Weir & Weir [1992] FamCA 69; (1993) FLC 92-338 at 79,590, the Full Court expressed the view that "the court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her asset.". The court further propounded that there is no requirement to place a value or amount on the assets that were not disclosed.
3. I am also assisted by the case of Yang & Gian and Ors [2014] FamCA 934 where Justice Aldridge stated at [143]:

Finally, and of great significance, is the husband's non-disclosure of his financial position. It is substantial. It would appear that the husband's business dealings in China involve sums of money greatly in excess of the assets presently in Australia. He appears to have under his control significantly large (in terms of the assets in Australia) sums of cash which he lends out for profit. At least until late 2012 he carried on a substantial and significant business in Australia under the name Mr F with a gross income of hundreds of thousands of dollars a year.

Where there has been deliberate non-disclosure the court should not be unduly cautious about making findings in favour of the innocent party. It may well be appropriate to err on the side of generosity. Black & Kellner [1992] FamCA 2; (1992) FLC 92-287; Weir and Weir [1992] FamCA 69; (1993) FLC 92-338 and Kannis & Kannis [2002] FamCA 1150; (2002) 172 FLR 464.

The husband's non-disclosure is deliberate and extensive. The evidence suggests that he has earned a substantial income and holds assets that exceed the assets the subject of these proceedings. The appropriate adjustment, therefore, is one that would see the wife receive all, or nearly all, of the available assets in Australia.

1. The husband alleges that the wife has also failed in her disclosure obligations. As regards the City C property there appears to have been disclosure of the relevant information about this asset as to the purchase and sale details are known and it was not pressed that any other disclosure was lacking.
2. Each party provided documents to the other in the lead up to the trial and cross-examination revealed that Notices to Produce and Notices to Admit Facts had been served and answered, such that efforts, however belated, were made to address these issues.
3. I am however satisfied that the husband failed in his obligations of disclosure in relation to N Pty Ltd, given the findings I have made as to the ownership of the Suburb E properties and the failure to provide documents as to the rental income, and the management of those properties generally. I am further satisfied that his failure is a factor properly considered in the court's review of contributions.

Is it conceded that the husband's father renovated the properties purchased by the parties free of charge - supplying labour, the labour of his employees and the materials?

1. This has been conceded by the wife, though she disputes certain aspects of the work that was done. The value of those contributions is unknown. She concedes that the husband's father provided labour and materials to renovate the Suburb EE property, the Suburb G property - both the downstairs business and the upstairs premises, the Suburb J property, and the Suburb FF property. No evidence was brought by the husband - whether from his father or his brother (now his father has died), through documents or through valuations - as to the value of the work that was done or funds contributed in that process. Nonetheless it is not disputed that four properties were significantly renovated and improved.
2. However the evidentiary gaps make the contributions difficult if not impossible to quantify. However as with the financial contributions from the wife's family, I must do the best that I can with the evidence to hand. I am satisfied that these hands on and related contributions to renovations and improvements were significant and were greater than the non-financial contributions made by the wife's family.

Determining whether it is just and equitable to make Orders

1. Whilst this is a determination that permeates the entire process it is useful to address it at the commencement of the process. I have considered that neither party argued that it was not just and equitable to make property orders.
2. I am satisfied it is just and equitable to make property orders because:

(a) this was a long term relationship of more than thirty years;

(b) The parties had two children;

(c) there is a multi-million dollar asset pool approaching about $7 million, consisting significantly of real properties held in joint names;

(d) both parties have made significant financial and non-financial contributions to those assets;

(e) the financial contributions included significant monetary gifts from each party's family;

(f) the non-financial contributions included significant contributions from the husband's family in the form of renovations;

(g) there were significant contributions from the wife's family including free accommodation for lengthy periods, payment of private school fees and loans;

(h) there is significant dispute about what constitutes the asset pool and the contributions made by each party and their families.

1. To let the situation stand without a full review and possibly an adjustment may not fully acknowledge the entirety of the contributions made or indeed allow the opportunity to truly consider what form the asset pool available for distribution should take.

Determining the pool available for distribution

1. The parties finalised a joint Balance Sheet during the trial[18] as follows:

N Pty Ltd, including as trustee for the Mr Blayne Family Trust:

Shares + Interests in property

U Group, U Group, V Company, V Company, W Company, X Group, Y Company, Z Company, AA Company, BB Company, BB Company

Contents of Commonwealth Bank Safety Deposit

Box containing jewellery and cash

CGT liability on sale of Suburb G & Suburb J property by wife

CGT liability on sale of Suburb G & Suburb J property by husband

Loan from TT Finance ($currently $26,654 for legal fees)

Approximate Market Rental Income Suburb J property (property currently vacant)

1. The assets in dispute whose values require determination are as follows:

Item 3 - N Pty Ltd, including as trustee for the Mr Blayne Family Trust: Shares + Interests in property

1. The husband argues a purchase price Resulting Trust - that because the parties paid no actual money towards the purchase of the Suburb E properties that the parties do not have an interest in that property. He further argued that the presumption of advancement was rebutted. I have made it clear that I do not accept those submissions.
2. So, the issue as regards the company is whether it owns the Suburb E properties or holds them on trust for the husband's parents. It was not in dispute that although N Pty Ltd is on the title of these properties, the financial statements for the company in 2021 and 2022 did not reflect that ownership and nor did the parties' personal tax returns.
3. The wife's evidence around this issue was confusing. She acknowledged that her 2022 financial statement made no reference of the properties in which this entity has an interest. She conceded that her 2022 affidavit identified these properties as "quarantined". Her trial affidavit describes quarantined as meaning they should be "quarantined from being split as part of the property settlement". Her evidence under cross-examination was that at the time she understood quarantined to mean that the Suburb E properties must not be sold, rather than excluded from the asset pool. However, in the list of assets to be quarantined she has included the City C property which on her evidence is not her property but that of her mother, and the proceeds of sale of the City C property have not been included in the Balance Sheet as an asset to be taken into account in the distribution.
4. Under cross-examination the husband was adamant that the Suburb E properties were not the property of the parties and that there had been many discussions, to which the wife was a party, to that effect. He disclaimed knowledge of the rental arrangements, but conceded when pressed that he at times collected the rent, but that he did so for his mother, counted the cash and passed it on to her. The husband had not however considered that his stance meant that if he was successful then his brother and sister also did not have ownership of those assets.
5. The husband's evidence is to the effect that the parties were only to assume ownership of the Suburb E properties if they were redeveloped and the parties contributed to that redevelopment. He conceded however that the documents produced at trial reflected a plan to borrow the funds for the redevelopment such that there was no intention to contribute personal funds but rather to be a party to the loans acquired to finance the redevelopment of the Suburb E properties. He also conceded that the plans to redevelop were put on hold due to the litigation brought by his sister's husband and that in that litigation the sister's husband claimed that he had an entitlement to the Suburb E properties.
6. The husband also conceded that his sister's husband received a payout of $900,000 in 2018 in an out of court settlement. He further conceded that on 29 August 2018 the sum of $135,000 was withdrawn from the Suburb J property redraw (being the property owned by the parties to these proceedings) and contributed to those settlement funds. This was not included in his evidence in chief. He did not concede that this was due to ownership of the Suburb E properties but rather gave evidence that this payment was made to help his sister.
7. The husband did not call evidence from his mother, advising the court that she had only recently learned that he was divorced. He also did not call evidence from his sister, and the evidence called from his brother was limited in scope. The best evidence from his brother as to intention is that his recollection is that there were discussions as to the benefit to be received if the property was redeveloped would be proportionate to contributions. He had no recollection of intent in the event that the redevelopment did not occur - as eventuated to be the case.
8. So on that background I turn to look at the law. In Bosanac v Commissioner of Taxation (2022) FLC 94-107, the High Court confirmed that the equitable principles of resulting trusts and the presumption of advancement remain good law.
9. In Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at [246]-[247] ("Calverley"), Gibbs CJ explained the relevant principles underlying resulting trusts as follow:

Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such - not, e.g., as a loan. Consistently with these principles it has been held that if two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money.

(References omitted)

1. To be satisfied that there is a resulting trust in favour of the husband's parents the court must be satisfied:

(a) That the husband's parents made the contribution to the purchase price; see Lam v Lam [2016] VSC 298 at [20]- [21].

(b) That the money the husband's parents paid was not intended as a loan or gift to the parties but was intended as a contribution to the purchase price.

(c) If the court is so satisfied, there then arises from that a presumption that the husband's parents intended to gain a beneficial interest from that contribution.

(d) Unless there is evidence to the contrary, then the husband's parents have the benefit of a resulting trust to the extent of their proportional contribution to the purchase price.

1. The flaw in that argument is that in fact the parties did make a contribution to the purchase price in the form of the mortgage. There is clear case law that obtaining a mortgage to purchase a property is a contribution to the purchase price to the extent of that mortgage. [19] The difficulty is that the court does not know the extent of the mortgage. There is different evidence about the purchases as follows:

(a) The wife's affidavit evidence is that 2 D Street was purchased without a mortgage, 3 D Street was purchased with a mortgage for $600,000 loan in the name of all three owners. 1 D Street was purchased with a loan in the sum of $480,000 in the joint name of N Pty Ltd and the husband's brother Mr MM.

(b) The husband's affidavit evidence (as corrected at trial) is that 2 and 3 D Street were purchased for $270,000 each in 1998 and 1 D Street for $350,000 in 2003. His recollection is that the mortgage for 1 D Street was indeed $480,000, which does not make much sense of the purchase price was $350,000.

(c) The best evidence however are the documents tendered[20] which reflect the purchase price of 2 D Street as $355,000, 3 D Street as $270,000 and 1 D Street as $750,000. The mortgage with LL Bank for the purchase of 2 and 3 D Street has the names of the three companies - being N Pty Ltd for the parties, UU Pty Ltd for the husband's sister, and PP Pty Ltd for the husband's parents. Those documents do not reveal the amount of each mortgage. The mortgage with ANZ for the purchase of 1 D Street has the names of N Pty Ltd and the husband's brother as an individual but again not the amount of the mortgage.

1. So there is again an evidentiary gap.
2. The court was asked to consider that there is evidence that the intention of the parties is shown to be other than as appears on the face of the documents in terms of Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390; that there is evidence that there was no intent for the parties to have that legal interest. I do not agree; there was an intention to redevelop the land. That is agreed and indeed supported by calculations as to how the redevelopment could proceed. That intention was delayed - initially by the relationship breakdown of the husband's sister with her own husband and then by the husband's father's ill-health.
3. The fact that the parties did not make regular mortgage payments is balanced by two things:

(a) the long-term generosity of each party's parents - the parties had often been gifted money or services by both of their families over many years and to many properties; and

(b) the fact that there has been no real accounting for the rental income, by the husband or evidence brought by him from his mother, although there appears to be some general acceptance that it was applied to the expenses for the properties including the mortgages.

1. I provided a s128 certificate regarding questions about the failure to declare the Suburb E properties in the N Pty Ltd tax returns. A failure to declare tax does not in and of itself persuade me that the Suburb E properties were not viewed by the parties as being their property. It is only one factor in the assessment process, and these parties would certainly not be the first business owners to fail to meet their tax obligations. I have considered that I do not know if the other owners of the Suburb E properties have declared the rental income in part or in full. It is simply a mystery.
2. I have considered that the Suburb E properties have been in the name of N Pty Ltd to the same extent since purchase. That was over 20 years ago; and the ownership of the properties has been unchanged despite other properties being bought and sold and the payout made to the husband of the husband's sister. This ownership of the Suburb E properties has remained a constant.
3. I have considered the wife's earlier evidence about "quarantining" the Suburb E properties. Firstly my interpretation of that was not that she wishes to exclude it from the pool but rather that it was to be retained by the husband. If I am wrong about that then what was said in earlier affidavits or correspondence is not binding on the parties - for example in the letter to the children the wife proposed to retain the Suburb J property. [21] She no longer wishes to do so. I have also considered that the parties views and wishes are certainly not binding on the court.
4. I have considered the husband's failure to bring evidence from his mother and sister. I have considered his failure to bring evidence from his brother about the rental income. I have considered the failure to disclose any documents that reflect that the Suburb E properties have been treated as solely the property of the husband's parents. It is conceded by the husband that his sister and her husband litigated over her former husband's entitlement to a property settlement. It is undisputed that the parties paid $135,000 towards the funds paid to his sister's husband as a consequence of that litigation. No documentary evidence has been brought before the court about those proceedings or how the settlement figure was calculated or whether that included a consideration of their ownership in the Suburb E properties. Another evidentiary gap.
5. Those evidentiary gaps pile up and they are troubling. The husband says that he was just doing what you do for family, however, due to those evidentiary gaps, I prefer the submission that the contribution to the payout of the husband of the husband's sister supports the argument that the parties believed that they had a legal and indeed equitable interest in the Suburb E properties.
6. I have considered the husband's reluctance to confirm that the Suburb E properties had multiple tenants who paid rent, in effect being a sort of boarding house at least in the case of one of those properties.
7. The best evidence before the court is that the parties contributed to the acquisition of the Suburb E properties at least to the extent of their legal obligations in accordance with the mortgages and further noting that the parties were personal guarantors for N Pty Ltd regarding the mortgage with ANZ[22] and N Pty Ltd was guarantor for the LL Bank mortgage secured to 3 D Street. [23] It is undisputed that the Suburb E properties have been tenanted since the time of purchase and the rental income applied to the mortgage and expenses for the properties. The husband conceded that from time to time he had collected the rental income, giving evidence that those funds were delivered to his mother. The parties also occasionally paid towards expenses such as insurance and land tax, although those were not regular or significant amounts.
8. In those circumstances I am not persuaded that there is a Resulting Trust in favour of the husband's mother. In the event that I am wrong about that, the court is of the view that any Resulting Trust is defeated by the presumption of advancement. The presumption of advancement applies where, for example, a parent pays for an asset that is registered in a child's name. The basis for that view is the regular contributions made to the parties by the husband's parents throughout the relationship - this is just one more such contribution.
9. In summary:

(a) It is not disputed that the parties made no direct cash contribution to the purchase price of the properties. They are however named on the title, and they are named on the mortgage. So they contributed to the purchase to the extent of their mortgage obligation and it is the contribution to the purchase price that matters, not any subsequent contribution to mortgage payments or the like.

(b) It is argued by the husband that the presumption of advancement in this case is rebutted by the intentions of all involved. It is submitted for the husband that the intentions of the parties at the time the purchase took place are clear. I do not agree. There is no evidence of that aside from what the husband and his brother attest, and indeed his brother's evidence is that there is no evidence as to intention in circumstances where the proposed redevelopment did not occur. There are no documents that can definitively settle this issue.

1. The greatest difficulty for the husband is the mixed messaging around this asset and the lack of documents to support his arguments. The fact that the rents, or at least a portion of them, were not received by the parties but rather by his mother is not persuasive, as it is conceded that the income was managed by her and used to pay expenses relating to the Suburb E properties.
2. Due to the evidentiary gaps and the matters as outlined above, I am satisfied that ownership of this asset must be in accordance with legal ownership on the face of the title. The figure included in the pool, is $1,241,790 less $96,008 in land tax gives $1,145,782 as the value of the Suburb E properties. Once the shares valued at $1,092 are included, then the value of N Pty Ltd is $1,146,874. The parties agreed on that figure in the event that the court included the Suburb E properties in the pool.
3. I have included the land tax as despite the lack of accounting as to the rental income and general disclosure as to this property by the husband and his family, whom he had the option of calling as witnesses, I am satisfied that the legal debt should follow the legal ownership. While rental income has been received it is simply unknown if that is sufficient to cover the expenses or whether there is a shortfall. I accept the submission that there has been a lack of disclosure around this issue. With those unknowns and evidentiary gaps, I am satisfied that so far as this asset is concerned the legal liabilities follow the legal ownership.

Item 19 - M Bank #...63:the wife's joint account with her sister

1. The wife submits that the court should include half this account, whilst the husband proposes to include the entirety. The basis of the husband's argument is that the wife's income goes into this account. However, that does not mean that the entirety of the funds in the account are the wife's property.
2. The legal ownership is half of the account. I propose to include only half of that account without evidence to persuade me otherwise.

Item 31 - The Husband's M Bank #...15 (@25.5.24)

1. This item, although originally in dispute, was resolved with the husband agreeing to transfer the funds to his mother, as being her property. Those orders were made by consent at the conclusion of the trial. This asset is therefore not part of the pool.

The Contents of Commonwealth Bank Safety Deposit Box containing jewellery and cash

1. The wife's evidence is that all that is left in this safety deposit box is the jewellery gifted to her as a wedding present. The husband gives evidence that there should be significant amounts of cash but is not specific in relation to amounts, when they were put in the safety deposit box or ownership of those funds. At the end of the trial this was left on that basis.
2. Without evidence as to value or ownership there is little more that the court can do with this.

1. Addbacks are the exception rather than the rule. They are often sought but rarely granted. The court is in effect asked to notionally add to the asset pool the value of an asset which no longer exists and whether the court chooses to do so is a discretionary exercise.
2. In Omacini & Omacini [2005] FamCAFC 104; (2005) FLC 93-218 at [30] the Full Court identified three clear categories where it may be appropriate to notionally add back assets that no longer exist to the pool of assets:

(a) where the parties have expended money on legal fees;

(b) where there has been a premature distribution of matrimonial assets; and

(c) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

1. The court will exercise its discretion to add back in exceptional cases where the particular circumstances of a case, justice and equity requires it. In cases that are not exceptional, justice and equity can be achieved not by adding back but by taking the matter up as a relevant s 75(2)(o) factor. The Full Court has indicated that the latter course is technically more correct.[24]

Proposed Addback - the balance of sale proceeds of the Suburb G Business

1. The wife sought to add back a sum that she had calculated being the difference between what she and the husband each expended from proceeds of sale of the Suburb FF property (which the wife retained) and the proceeds of sale of the business (which the husband retained). She included in her calculations the interest received by each party. Her evidence is that the husband has had the benefit of $79,541 more than her.
2. There was no suggestion that either party had expended funds in a way that amounted to wastage. Normal living expenses and necessary costs do not usually fall within a category of acceptable addbacks. Parties are not expected to "go into a state of suspended economic animation" after separation,[25] and are "entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives".[26]
3. There is no legal requirement that both parties expend exactly the same amount of money post separation, and I have considered the husband's evidence that some funds were for the benefit of the parties' son. I therefore accept the submission that the calculation undertaken by the wife is an artificial exercise.
4. For those reasons I do not propose to add back this amount.

Proposed Addback - the net sale proceeds of the City C property

1. The husband sought to add back this amount as properly being the property of the parties. The property was registered in the wife's name. She had the legal title. The purchase price and related expenses were paid by the wife's parents and the wife herself paid rent to her mother whilst she lived in the property.
2. As the legal title was with the wife, and she is the one who argues that the property was not in reality her property, then the burden of proof lies with her to establish that this property does not belong in the pool for distribution between the parties. She has not done so.
3. I accept that the property was bought for the parties' son to live in while he studied nearby. The wife moved in post-separation and I accept her evidence that she paid rent to her mother.
4. I am of the view that this asset was gifted to the wife for the following reasons:

(a) She has failed to bring her mother to give evidence about the intention; and

(b) The wife's family have been generous to the parties throughout the relationship, such that it is consistent with their former behaviour that this was a gift.

1. The fact that the wife paid rent to her mother post-separation does not dissuade me from that view as the parties' separation no doubt changed everything.
2. It is however a gift that was made late in the relationship and to which the husband made no contribution and from which he received a benefit of sorts - being free accommodation for the child of the parties for that period.
3. I am therefore persuaded that it should be in a separate asset pool and dealt with in a different manner from the assets that had been obtained and built upon much earlier in their relationship.

1. In the event that the court makes orders that allow the husband to retain the Suburb G property then the CGT payable will change as the amount included in the asset pool by each party is on the basis of the sale of both properties.
2. The tax consequences for these parties is an issue in dispute. The issue is whether they should lie where they fall or provision be made to ensure an equal sharing of the burden. The respondent proposes that funds be retained in a separate account, being a capital gains tax reserve fund, and a process for ascertaining the quantum of each party's capital gains tax attributable to the sale of the Suburb J property (noting the husband does not propose the sale of the Suburb G property). The wife simply proposes that each party pay their own CGT from the sale of each property. The estimate obtained by the parties[27] shows slightly different CGT payable for each party, noting that was calculated for the 2025 year.
3. I am inclined towards the wife's position. Capital Gains Tax will be calculated, the parties will be responsible for half and how they pay that is a matter for them. I am of the view that to set up a fund and a process for calculation and distribution of the responsibility will unnecessarily complicate the process. I see no reason why it should not lie as it falls in the shares held by the parties.

Should the Suburb G property be sold as sought by the wife?

1. This is an issue that should be determined now, so that the asset pool available for distribution can be finalised. Further, it is an income producing asset and if it is retained by the husband, as he seeks, I will consider that in relation to the issue of future needs.
2. If successful in his argument to retain the Suburb G property then the CGT liability for each party is reduced accordingly in the Balance Sheet. The husband's evidence is that he proposes to live in the upstairs residence with the adult child of the relationship, Mr O. At the time of trial however it was rented out and the husband was living elsewhere.
3. The wife proposes that this building be sold. She submits, and the husband concedes, that he has provided no evidence that he would be able to refinance the property into his sole name, noting the agreed value is $2.15 million. The court has also considered that the husband has not included a default clause requiring the property to be sold in the event that he is indeed unable to refinance the property into his sole name.
4. In considering this issue I also considered the following:

(a) The husband has not provided any evidence that he will be able to borrow funds to refinance this property. He is however employed so there is likely some capacity to borrow but the extent is unknown;

(b) He concedes that his cash resources together with the funds from surrendering his life policy is, at its height, around $351,000;

(c) The Suburb G property is an income producing asset with both levels capable of bringing in a combined monthly income of about $9,474.52;

(d) The husband has however given evidence of an intention to live in the property and thus reduce its income producing capacity;

(e) The valuation reflects a possible rezoning of the area with the possibility to re-develop in the future, noting that the husband's family have developed property in the past;

(f) At the time of trial the husband was living with a female friend and had done so for about nine months. His evidence was that he intended to move out but there was no other evidence about that relationship;

(g) The value of the Suburb G property is based on a single expert valuation and is an agreed value;

(h) Sale would give each party certainty as to cash resources with which to move forward.

1. Having considered those matters I am of the view that it is just and equitable that the Suburb G property be sold. I am uncertain if the husband can even retain the property but in such a high conflict litigation where almost every aspect of contributions were in dispute, my view is that the property should be sold and give some real certainty. The CGT calculations therefore remain as they are for the sale of the two properties.

To answer the questions posed at the commencement of these reasons as applicable at this stage:

What values should be given to items in contest in the Balance Sheet?

1. That has now been addressed or is being addressed in answering these questions. The court has done the best it can on the evidence or lack of evidence that exists about the matters in dispute, including the consideration of a failure to bring evidence.

Should the funds held in the M Bank account #...15 form part of the matrimonial asset pool?

1. This has been dealt with by consent and the amount excluded.

Should there be any addbacks, including the proceeds of sale of the City C property?

Should the court include in the asset pool an amount for CGT in respect of the sale of the Suburb G and Suburb J properties?

1. The court will order that both properties be sold and therefore, for the purposes of assessing justice and equity, the estimated CGT will be included for the properties sold. The wife submits that the CGT liability should lie where it falls rather than be subject to adjustment. I agree with the wife. Each party has a different income and different tax obligations follow as a consequence. I see no reason to require to the parties to spend potentially thousands of dollars in legal and accounting fees to ensure a dollar for dollar match in tax when the difference is minimal in terms of the asset pool and where an unexpected injustice might be incurred if one party had a change in circumstance - such as loss of employment or a significant pay rise.
2. I am therefore satisfied that it is just and equitable for the legal obligation for the capital gain to fall equally in accordance with the law and the tax consequences to follow for each.

Are the three properties in which N Pty Ltd held on trust for the husband's family or are they part of the pool available for distribution?

1. This question has been answered. I am not satisfied that a resulting trust exists. I am therefore satisfied that the Suburb E properties form part of the pool available for distribution between the parties, but at the figure as calculated by the husband inclusive of the land tax liability.
2. I do not propose to deal with the Suburb E properties by way of a separate pool as proposed by the husband as the Suburb E properties were obtained so long ago and nothing has changed as to their ownership despite the litigation between the husband's sister and her former husband. It will be a matter for consideration in the contribution part of the process in the usual way.

The asset pool available for distribution between the parties

1. Having made those findings and determinations, the net asset pool available for distribution is $6,761,309.72 plus super being a net asset pool of $6,996,726.72.
2. Noting that I propose to take a two-pool approach, that gives two pools, one valued at $6,461,842.99 and the other, being the City C property alone, at $534,883.73.

1. I have had regard to the decisions debating the varying approaches to dividing an asset pool in terms of an asset by asset approach or global approach as referred in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513; Cahill & Cahill (2006) FLC 93-253.
2. The global approach is generally adopted and involves examining the assets on a global view and determining an overall contribution of each party, as opposed to the asset-by-asset approach which involves determining the interests of each party in each asset or group of assets.
3. I am of the view that, with the exception of the City C property, a global approach is more appropriate for the following collective reasons.
4. This was a long-term relationship with two children. Both parties made significant financial and non-financial contributions, and both received significant financial and /or non-financial assistance from their families. There are assets in joint names and other assets held by each party, and CGT that without review and redistribution would lead to an inequitable distribution of the asset pool.
5. I am satisfied that the City C property should be dealt with separately because it was purchased in the last year of the relationship, using funds gifted by the wife's family and to which the husband made no direct or indirect contributions. I am of the view that if I included it in the asset pool with the main body of the assets of the relationship that it would skew the justice and equity consideration.

Evaluation of section 79(4) - Contribution Issues

1. In Wallis & Manning [2017] FamCAFC 14; (2017) FLC 93-759, the Full Court referred to and approved the Court in Dickons v Dickons (2012) 50 FamLR 244 at [21] where the Full Court said:

...the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applied, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79.

1. I have here considered the findings that I have made earlier in these reasons about each party's contributions, but have not necessarily repeated those findings.

1. The husband made no contribution to the City C property. He does not dispute the wife's evidence that the funds came from her family and that he made no direct or indirect, financial or non-financial contributions. In fact the parties received an indirect benefit in that they did not need to pay for their son's housing while he lived in that property. The City C property was purchased only months prior to separation and without his input.
2. I am therefore satisfied that contributions were 100% attributable to the wife.

1. This was a long term relationship in excess of 30 years. The parties separated on 12 November 2020. There was a period of almost four years between the date of separation and the date of trial.
2. Each party's family has routinely gifted them money from the very commencement of their relationship and, in the case of the husband, labour and materials for renovations and improvements made to multiple properties. There has been no suggestion that those were anything other than gifts to the parties, and where funds were loaned both parties acknowledge this and the loans were repaid.
3. For the parties each now to be arguing that property in their names are or were held on trust for their families must be seen in that context of long-term generosity and intergenerational support.
4. The wife's evidence is that at the commencement of the relationship she had about $30,000 as a wedding gift from her father, jewellery (some of which was also a wedding gift) and a few thousand in savings. The husband had a small amount of savings and a car.
5. The husband's evidence is that he had a car and his parents gifted the parties $35,000 to purchase the Suburb EE property and that his father did significant work on that property.
6. For the first two years the husband continued to study and the wife's income supported the family. The husband's parents paid the mortgage for those two years.
7. For 6 ½ years the parties lived rent free in the wife's parents' property.
8. The husband purchased the business in 1997 and sold it in April 2021. The wife worked full-time during the marriage, noting maternity leave, including working in the business, and later for her father's business.
9. The wife's parents made other significant financial contributions throughout the parties relationship, noting my earlier findings.
10. The husband's parents also made financial contributions to the parties, to a lesser degree.
11. The husband concedes that the wife made the primary non-financial contributions in terms of household duties and childcare, even noting her periods of hospitalisation.
12. The wife's parents paid for the majority of the children's private school education. The wife submits they paid $720,000 towards the schooling, noting this is disputed by the husband. Regardless of the quantum it is a significant financial contribution to pay private school fees throughout the school years of two children.
13. The parents of both parties contributed to the purchase price of the business with the wife's parents contributing $100,000 and the husband's contributing $30,000.
14. The husbands' parents made significant contributions through renovations and improvements to properties purchased by the parties throughout their relationship. Those contributions have not been quantified but were clearly significant.
15. The significant financial contributions from the wife's family are not to the extent she has claimed in her affidavit material and indeed she conceded that in cross-examination. As considered earlier in these reasons they have not been quantified but I am satisfied that they were clearly significant.
16. Both the Suburb J property and the Suburb G property have been income producing assets.
17. The husband perpetrated family violence during their relationship which made the wife's contributions to the relationship significantly more difficult.
18. The wife was hospitalised on occasions during the relationship with mental health challenges. Whether that was due to the husband's conduct or whether her mental health made his contributions more difficult is an issue about which the court has no clear evidence. I am of the view in any event that with a long-term relationship, periods of ill health of whatever form are one of the vicissitudes of life that must be accepted.
19. The husband has failed to make full and frank disclosure in relation to the Suburb E properties.
20. Having considered the findings made in these Reasons and the above factors I am satisfied that contributions are 52:48 in the wife's favour.

Evaluation of Section 75(2) factors - Future Needs

1. The same future needs are applicable to both pools.
2. The parties are of a similar age, each alleges to be in poor health however there is no independent evidence of the impact on earning capacity.
3. Each party is employed and receives an income in addition to currently receiving a half share of the net investment property income.
4. The husband's income is greater than that of the wife, noting that he is working as a professional and she is working as a professional. It is a matter for them if either party chooses to retire early but not a matter I have considered in assessing future needs.
5. I have determined that the husband will not retain the Suburb G property and that this income earning asset will be sold as will the Suburb J property.
6. The wife asks me to consider that the husband may inherit significant funds in the near future from his mother. I do not know if his mother is likely to die soon, the terms of her Will or the extent of her estate. I place no weight on that submission in those circumstances.
7. The wife argues that the husband has re-partnered however he describes this person as a friend and has provided no information as to the financial circumstances of his partner or the relationship generally. Again I place no weight on that submission in those circumstances.
8. Having considered those matters I do not propose to make any adjustment for future needs.

1. I have considered that the net asset pool available for distribution is $6,996,726.72. Further noting that I propose to take a two-pool approach, that gives two pools, one valued at $6,461,842.99 (including $235,417 of super) and the other, being the City C property alone, at $534,883.73. Neither party proposes that there be a super split.
2. Noting the final orders sought by each of the Applicant and the Respondent, there is agreement (notwithstanding discrepancy in wording) that:
   • The Suburb J property ought to be sold
   • The ANZ joint bank accounts (account numbers: ...73, ...59 and ...55) and M Bank joint bank accounts (account numbers ...71, ...90 and ...59) be closed and for the proceeds to be divided equally between the parties
   • All public shares held in joint names be transferred to the wife
   • The wife resign from and be removed from N Pty Ltd and the husband identify her in relation to and liability the wife may have had or will have in the future arising out of her position as office bearer
   • The husband be removed as an additional card holder from U Group Mastercard credit card
   • The wife be removed as an additional card holder from NAB Visa credit card and the Westpac MasterCard credit card
   • Motor Vehicle 1 with registration ... be transferred to Mr O and be taken out of the asset pool
   • That the husband and wife be liable and indemnify each other from any debt or liability in their own name
   • Where there is a failure by the party to sign any documents necessary within 14 days, a Registrar of the Court may execute in the defaulting party's name
   • Each party maintain possession of any other property, insurance, liability currently in their name unless otherwise ordered.
3. The Suburb G and Suburb J properties are to be sold and those assets will be in cash form.
4. Doing the best that I can on the asset pool calculated, and acknowledging that with the sale of the Suburb J and Suburb G properties these figures will change as may the CGT figures, I have reviewed the amounts to be received by each party.
5. The wife is to retain what she already has in her possession and control, noting that the parties agree she is to retain the funds in joint bank accounts and the shares held in joint names as well as her own:

U Group, U Group, V Company, V Company, W Company, X Group, Y Company, Z Company, AA Company, BB Company, BB Company

Contents of Commonwealth Bank Safety Deposit

Box containing jewellery and cash

CGT liability on sale of Suburb G & Suburb J by wife

1. That is a net amount already in the wife's possession and control of $534,883.73 in Asset Pool 1 and $72,190.49 in Asset Pool 2.
2. The husband is to retain the following, noting that the parties agree he is to retain and the wife is to sign documents to end her role with N Pty Ltd:

N Pty Ltd, including as trustee for Mr Blayne Family Trust:

Shares + Interests in property

CGT liability on sale of Suburb G & Suburb J properties by husband

1. That is a net amount already in the husband's possession and control of nil in Asset Pool 1 and $1,289,652.50 in Asset Pool 2.
2. The proposed division of assets is 100% of Asset Pool 1 to the wife (being $534,883.73) and 52:48 to the wife of Asset Pool 2 in dollar terms (for the sake of this exercise discounting any sale expenses but simply working on the valuations of the two real properties to be sold).
3. With Asset Pool 2 valued at $6,461,842.99, 52% to the wife is $3,360,158.35 and 48% to the husband is $3,101,684.64.
4. With the value of the City C property together with her share of Asset Pool 2 the wife will receive cash, assets, addbacks and super to the value of $3,895,042.08.
5. The husband will receive cash, assets, addbacks and super to the value of $3,101,684.64. Breaking that down, the husband will have the interest in the Suburb E properties, valued at $1,146,874, and other cash, assets, addbacks, liabilities and super to the net value of $1,954,810.64. I have taken the trouble to do that breakdown as the husband will be a part owner of the Suburb E properties and those funds, which form a significant part of the assets he retains, may therefore not be readily available.
6. Having considered that process I remain satisfied that the orders the court now makes are just and equitable.

1. I propose to make orders in the form sought by the wife but with adjustments to the percentage and some other changes as explained below.
2. Both parties agree that the husband will retain N Pty Ltd to the exclusion of the wife and that orders should be made for the wife to be removed from any role in that company. The wife seeks to be indemnified in relation to all liabilities, and the husband seeks orders in similar terms. I have adopted the form of order proposed by the husband, with a structural change, and I propose to make an order in the terms he proposes to eliminate dispute.
3. As to the sale process for the real properties, the form of orders proposed by the wife will be adopted as that provides a sensible process that identifies a selling agent, a conveyancer and a process of setting a reserve price if needed.
4. I do not propose to make the orders sought by the wife that the husband be solely liable for the expenses relating to the Suburb G or the Suburb J property pending the sale. Both properties are rented, the income is applied to the expenses and then shared equally between the parties. Given that both properties are to be sold, and that the expenses are minimal, as there are no mortgages secured to those properties, I see no reason why that arrangement should not continue until settlement.
5. Once the real properties are sold I propose that the net proceeds of sale be retained in the conveyancing solicitor's trust account until the final asset pool can be ascertained with certainty and the precise allocation of funds between the parties determined by following an equation, with the remainder payable to the husband. I have prepared an Annexure "A" to the Final Order to facilitate that process.
6. The wife proposes orders that she retain the contents of the safety deposit box. While there is dispute as to the contents of the safety deposit box, the wife was not challenged about this in cross-examination and nor does the husband seek orders that the safety deposit box be dealt with in some other way. The parties agree that the value of the contents is not known. The wife's evidence is that it contains jewellery including that gifted to her by her family. There is some dispute as to whether it does, or did as at the date of separation, contain cash but with no evidence either way, there is little that the court can do about that. Doing the best I can on the evidence or lack of evidence to hand, and on the basis that is it in effect unchallenged, I propose to make that order as sought by the wife.
7. Until such time as the Suburb J and Suburb G properties are sold the exact quantum of the asset pool is an unknown and the amount payable to each party is unquantifiable. I therefore propose to make orders that the proceeds of sale by retained in a trust account until both properties are sold and then the distribution will occur once the asset pool has been properly quantified.
8. I further propose to make orders 18, 19 and 21 of the wife's proposed final orders, being general catch all paragraphs to ensure compliance with and management of the property division.

1. I am satisfied that the orders now made are just and equitable as between the parties.

I certify that the preceding two hundred and twenty-six (226) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope.

N Pty Ltd, including as trustee for the Mr Blayne Family Trust:

Shares + Interests in property

U Group, U Group, V Company, V Company, W Company, X Group, Y Company, Z Company, AA Company, BB Company

Contents of Commonwealth Bank Safety Deposit

Box containing jewellery and cash

CGT liability on sale of Suburb G & Suburb J properties by wife

CGT liability on sale of Suburb G & Suburb J properties by husband

[1] As per Affidavit of wife dated 18/07/2024, paragraph 68

[4] The varying evidence as to the purchase price of the Suburb E properties is addressed when findings are made as the asset pool available for distribution between the parties

[9] Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 at [86].

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

[11] RPS v The Queen [2000] HCA 3; [2000] 199 CLR 620

[12] AIJA National Domestic and Family Violence Bench Book

[14] Sweet & Sweet [2022] FedCfamC2F 676

[17] BCI Finances Pty Ltd (in liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227 at [124].

[18] Exhibit W23, noting that item 3 was further amended in submissions.

[19] Calverley & Green [1984] HCA 81; (1984) 155 CLR 242 at 251, 257 - 258 and 267 - 268

[24] Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858 at [28]- [30]

[25] M & M [1998] FamCA 42

[26] C & C [1998] FamCA 143 at [46]