Beltran & Preston (No 3) [2025] FedCFamC1F 577 (25 August 2025)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The applicant is declared the sole legal and beneficial owner (as between the parties) of the real property and improvements comprising the property commonly known as J Street, Suburb K, NSW ("the Suburb K property"), and the respondent shall forthwith do all such things and sign all such documents necessary to transfer all her right, title, and interest in the property to the applicant.
2. The applicant shall indemnify and keep indemnified the respondent against all rates, taxes, statutory charges, mortgage repayments, and other outgoings and liabilities affecting or relating to the Suburb K property.
3. The parties shall do all such acts and things and sign all such documents as may be necessary to list for sale (initially by private sale or by public auction at the applicant's election) the real property and improvements comprising the property commonly known as L Street, Suburb M, NSW, ("the Suburb M property") on the following terms:

(a) the property shall be listed for sale within six weeks of the date of these orders;

(b) the real estate agent and auctioneer shall be chosen by the applicant;

(c) the sale or reserve price shall be as agreed between the parties and, in the event of disagreement between the parties, the sale price nominated by the real estate agent or the reserve price nominated by the auctioneer;

(d) in the event the property is not sold within four months of these orders, the property shall then be submitted to successive auctions within further six weeks periods until sold; and

(e) pending sale, the applicant is restrained from enlarging the liability secured by the existing encumbrance registered over the property.

1. Upon completion of the sale of the Suburb M property, the applicant shall cause the proceeds of sale to be disbursed as follows:

(a) first, to pay all costs, commissions, and expenses of the sale, to discharge the encumbrance over the property and to pay any Council and water rates outstanding in respect of the property;

(b) secondly, to pay the applicant the sum of $23,850 on account of the capital gains tax he is liable to incur on the sale;

(c) thirdly, to pay 28.63 per cent of the remaining proceeds sale price to the respondent; and

(d) lastly, to pay the balance remaining to the applicant.

1. It is declared the trustee of Superannuation Fund 1 has been accorded procedural fairness in respect of these superannuation splitting orders and the orders ancillary thereto, by which orders the trustee is bound.
2. Pursuant to s 90XT(2)(b) of the Family Law Act 1975 (Cth), the value of the applicant's interest in Superannuation Fund 1 is determined to be $235,466, being a value with which the parties agree.
3. Pursuant to s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $100,000 is allocated in respect of the applicant's superannuation interest in Superannuation Fund 1.
4. Order pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) that, whenever a splittable payment becomes payable in respect of the applicant's interest in Superannuation Fund 1, the trustee shall:

(a) pay to the respondent an amount calculated in accordance with the Family Law (Superannuation) Regulations 2025 (Cth) using the sum of $100,000 as the base amount; and

(b) correspondingly reduce the superannuation entitlement of the applicant.

1. Order that these superannuation splitting orders shall have effect from the operative time and the operative time shall be seven days after the trustee is served with these orders.
2. Unless otherwise provided:

(a) each party shall be the sole legal and beneficial owner (as between them) of all other assets in their respective possession at the date of these orders and, for that purpose, bank accounts are deemed to be in the possession of the person named as the account holder and superannuation interests are deemed in the possession of the worker; and

(b) each party shall be solely liable for and shall indemnify the other against any debts attaching or relating to the property in their respective possession and any debts in their respective sole names, including any individual liability for capital gains tax arising out of the sale of property pursuant to these orders.

1. Costs are reserved for 28 days.
2. Any and all other applications for financial relief under Pt VIIIAB of the Family Law Act 1975 (Cth) are dismissed.
3. In the event of either party refusing or neglecting to sign within seven days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Newcastle registry is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act 1975 (Cth).

These orders have been amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

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 the pseudonym Beltran & Preston has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 11 September 2025

1. These reasons explain the orders made to divide the parties' property interests under Pt VIIIAB of the Family Law Act 1975 (Cth) ("the Act").

1. The parties were never married.
2. Their de facto relationship began in March 2009 and broke down in May 2018. The respondent still insists the relationship did not break down until April 2021, but the issue is now beyond dispute because another judge earlier declared under s 90RD of the Act that the relationship broke down in May 2018.
3. When the de facto relationship broke down, the respondent vacated the family home, leaving the two children (then aged nine and two years) in the applicant's primary care. However, the parties persisted with a sexual relationship and their third child was born in 2021. The youngest child lived with the respondent for some years thereafter.
4. The applicant commenced proceedings in June 2022, seeking orders in respect of the children under Pt VII of the Act and property adjustment orders under Pt VIIIAB of the Act. The two causes were bifurcated in February 2024.
5. Final parenting orders were made in February 2025, requiring the two elder children to live with the applicant and, subject to the respondent's fulfilment of certain conditions, the youngest child to live with her. However, the respondent did not fulfil those conditions and so, by the execution of recovery orders made in June 2025, all three children now live with the applicant. The children spend time with the respondent on alternate weekends and during school holiday periods.
6. The financial cause was heard in August 2025.

1. The applicant abandoned the orders set out within his Further Amended Initiating Application filed on 20 September 2024 and instead sought the orders in the Minute of Orders he tendered after the evidence was closed.[1]
2. The respondent abandoned the orders set out within her Amended Response filed on 30 May 2025 and instead sought the orders in the Minute of Orders she tendered after the evidence was closed.[2] She abandoned her former application for the payment of de facto spousal maintenance under Pt VIIIAB of the Act.[3]

1. The applicant relied upon his affidavit and financial statement filed on 7 July 2025.
2. The respondent relied upon her financial statement filed on 22 July 2025, her affidavit filed on 27 July 2025, and another affidavit she filed on 15 August 2025. Some objections were taken and sustained to some parts of her first affidavit.[4]
3. The annexures to the parties' affidavits were accepted as part of the evidence despite the provisions of r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

1. The trial of the financial cause began after 10 June 2025, in which event the amendments to the Act wrought by the Family Law Amendment Act 2024 (Cth) now apply.
2. In accordance with the new provisions of Pt VIIIAB of the Act, it is first necessary to establish the existing property interests and liabilities of the parties (s 90SM(3)(a)), which illuminates whether it is just and equitable to make any property adjustment order at all (s 90SM(2)).
3. If a property adjustment order is warranted, when deciding what order to make, the Court must consider the parties' respective contributions (s 90SM(3)(b)(i) and s 90SM(4)) and their current and future circumstances (s 90SM(3)(b)(ii) and s 90SM(5)).
4. Companion animals are considered separately (ss 90SM(1), 90SM(6) and 90SM(7)), but there are no companion animals to consider in this case.

1. Section 90SM(3)(a) of the Act requires identification of the parties' existing assets, liabilities and superannuation interests.
2. The applicant's existing assets, liabilities and superannuation interests are as follows:

1. The respondent's existing assets, liabilities and superannuation interests are as follows:

1. In final submissions, the applicant asserted the respondent's debt to the ATO should be disregarded but gave no plausible reason for why. It is not decisive that a portion of the liability might have been incurred after the parties' separation in May 2018, about which the evidence was unclear anyway. The respondent was not challenged in cross-examination about either the existence, circumstances or quantum of the debt.
2. The respondent claimed in her financial statement she owed a debt of $70,591 to her parents for rental bond and legal fees, but the alleged loan is disregarded as she gave only this evidence of the loan in her affidavit:
   1. We have each taken loans from our respective parents' post-separation which are being used for our individual fees and personal living expenses.

1. In the absence of probative evidence of any intention to create a legal relationship of creditor and debtor with her parents in respect of those funds, there is no commercial loan (Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at 106; Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 at 96; Jones v Padavatton [1968] EWCA Civ 4; [1969] 2 All ER 616 at 620-621; Henderson v Miles [2005] NSWSC 710 at [24]; Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 at 614; Atco Controls Pty Ltd (in liq.) v Newtronics Pty Ltd (recs and mgrs appt) [2009] VSCA 238; (2009) 25 VR 411 at [60]).
2. The net value of the parties' combined assets and superannuation interests is $918,894.

1. It is just and equitable to make orders altering the parties' property interests. The parties agree, as they each seek property adjustment orders. At the very least, their joint ownership of the former family home must be severed.

1. There was little evidence of the parties' capital contributions at the commencement of their relationship in 2009. Just before they began cohabiting, the applicant purchased the Suburb M property, which was registered in his sole name.[5] The purchase was enabled in part by his savings and a loan of $20,000 from his parents, but the loan was later forgiven,[6] in which event that is a financial contribution credited to him. In cross-examination, the applicant estimated his savings at about $10,000. The respondent gave no evidence of any capital contribution by her at the commencement of cohabitation. She admitted in cross-examination she had no savings at that point.
2. Throughout the relationship, the parties worked diligently to raise their family and enhance their wealth. They juggled work and child-care responsibilities in different permutations. Their mutual attempts to emphasise their own contributions and diminish those of the other are rejected. There is nothing to materially differentiate their respective financial and non-financial contributions in the period between cohabitation and their separation in May 2018.
3. From May 2018, the applicant took on primary responsibility for the care and supervision of the two elder children while still maintaining his employment, using his income to service debt, support himself and the children, and to help support the respondent.
4. Once the third child was born in 2021, the respondent took on primary responsibility for her care and supervision, though the applicant continued to financially support the respondent and the youngest child. The respondent's counsel conceded she made no financial contribution to the parties' assets after separation in 2018. Her contribution was confined to the care of the youngest child in the period between 2021 and 2025.
5. Over the seven years which has elapsed since the parties separated in May 2018, the applicant gave considerable financial help to the respondent to help meet her expenses, which included:

(a) transfers from the applicant's bank account between May 2018 and March 2021, which the respondent admitted exceeded $30,000;[7]

(b) voluntary payments of $375 per week between April 2021 and November 2021, which must have amounted to about $10,000;[8]

(c) amounts withdrawn by the respondent from the mortgage between 2019 and 2025, which mortgage was being paid exclusively by the applicant, sometimes without telling him, which she admitted amounted to a total of about $22,410 (including the amounts of which the applicant gave evidence-in-chief);[9] and

(d) payments of $250 per week in satisfaction of an interim de facto spousal maintenance order made in May 2023, which payments continued until June 2025 and totalled about $26,500.[10]

1. Such financial assistance supplemented the income earned separately by the respondent and the welfare income she derived from Centrelink, all of which was spent exclusively within her household.
2. Against such financial assistance of around $89,000, the respondent paid the applicant back about $11,640.[11] It must therefore follow the applicant gave the respondent the net amount of about $77,000 from his own income, which calculation was conceded in final submissions.
3. Since June 2025, the applicant has been the primary carer for all three children, which situation will likely continue into the foreseeable future.
4. The respondent adduced evidence of family violence allegedly committed by the applicant during their relationship,[12] which her counsel candidly stated at the start of the trial would not be advanced as a feature of her case (s 90SM(4)(ca)). The evidence was unconvincing anyway because it only comprised the respondent's opinions, not observations of fact which could then be challenged.
5. The applicant's initial capital contributions in 2009, amounting to more than $20,000 but no more than $30,000, were the only capital contributions at the start of the parties' relationship. The applicant's contributions after separation in May 2018 were far superior to those of the respondent, particularly when acknowledged the period which has elapsed since separation is not much shorter than the duration of the de facto relationship itself.
6. The applicant's overall contribution-based entitlement is assessed at 75 per cent, which reflects his overall contributions exceeding the respondent's contributions by a factor of three.
7. The applicant's submission his contribution-based entitlement should be assessed at 80 per cent is rejected as his contributions were not superior by a factor of four. Conversely, the respondent's submission that the parties' overall contributions were equal is rejected as being quite unrealistic.

1. The applicant is employed and expects to remain so for the remainder of his working life.[13] He is currently on extended leave to settle the youngest child into his permanent care and his income has halved.[14] Even when he returns to work, he envisages his income-earning capacity will be restricted due to his continuing child-care responsibilities.[15] His current income is $67,000 gross per annum (which apparently includes superannuation).[16]
2. The respondent has tertiary qualifications but found it difficult to obtain employment in that field,[17] though she did so from 2020 until 2021.[18] She otherwise has work experience in retail sales and food delivery.[19] She is in the process of completing more tertiary education in pathology,[20] and is not currently employed.[21] The respondent has been diagnosed with numerous conditions,[22] but expressly disavowed the conditions limit her income-earning capacity. The respondent conceded she has a current income-earning capacity of $52,000 gross per annum.[23]
3. The parties are of comparable age.
4. In final submissions, both parties urged a finding they have equivalent future income-earning capacity, which finding is made, contrary to the respondent's stated belief to the contrary.[24]
5. The applicant will continue to have primary responsibility to care for the children and will bear the greater burden of the cost to maintain them. The respondent never paid child support for the two elder children in the applicant's care. Nor has the respondent paid child support for the children since June 2025, when the applicant assumed primary care of all three children.
6. The parties agreed an adjustment in the applicant's favour was warranted, which the applicant assessed at no more than five per cent and the respondent assessed at no less than one per cent.
7. Given the youngest child is only four years old and has special needs, which will likely absorb the applicant's time and curtail his earning capacity, the adjustment is assessed at five per cent.

1. Following from the anterior findings, the applicant is entitled to 80 per cent of the parties' property interests and the respondent is entitled to 20 per cent.
2. The respondent deposed to her belief in an entitlement to 72 per cent of the parties' property and superannuation,[25] which belief is misconceived. Responsibly, her counsel conceded the evidence could not validly found such a wildly adventurous estimate. But the entitlement of even 48 per cent for which counsel eventually advocated was still unrealistically high.
3. Given the net value of the property is $918,894, the applicant's 80 per cent share represents $735,115 and the respondent's 20 per cent share represents $183,779.
4. The parties agreed the applicant will retain the former family home in which he and the children live, which will require the respondent to divest her proprietary interest in the property and the applicant to indemnify her against any liability in respect of the mortgage and rates.
5. Subject to the applicant's acquisition of sole title in the former family home and taking exclusive responsibility for the mortgage registered over it, the respondent will be left with personal property and superannuation worth only $13,194 and a debt of $36,787. To have assets and superannuation worth $183,779 net, the applicant will need to pay her $207,372.
6. The parties agreed the Suburb M property will have to be sold, which will cause the applicant to incur capital gains tax.[26] Such tax will be treated as an incidental expense of the sale, about which the parties agreed.[27] The sale of the Suburb M property will likely yield net proceeds comfortably exceeding $200,000. The applicant proposed the respondent be paid $100,000 from that sum,[28] whereas the respondent wanted $200,000.[29]
7. The parties also agreed the applicant's superannuation interest should be split. The applicant proposed a base amount of $70,000,[30] whereas the respondent proposed a base amount of $200,000.[31] The parties agreed the superannuation trustee had been afforded procedural fairness in respect of both those proposals.
8. The parties' specific proposals about how the respondent would acquire the benefit of the property adjustment were arbitrary. No evidence or submission was advanced to explain the differences.
9. As the respondent is to receive $207,372 from the applicant, $100,000 will be split from the applicant's superannuation interest and the other $107,372 will come from the net proceeds realised on the sale of the Suburb M property. The Suburb M property is valued at $375,000 but may sell for more or less depending upon market conditions. The sum of $107,372 represents 28.63 per cent of the agreed value of the property, so the respondent will receive 28.63 per cent of the sale price from the net sale proceeds, which may be more or less than $107,372. Both parties will then share the windfall or loss, which is common practice (Noetel & Quealey [2005] FamCAFC 677; (2005) FLC 93-230 at [138]- [143]).
10. That outcome will give both parties some cash from the property sale and give the respondent a superannuation interest upon which to build for her retirement. Giving the respondent a little more cash would not likely increase her chances of buying her own home. The applicant also needs cash because, while his income is reduced, he still needs to service the mortgage and meet the costs of maintaining the children.
11. The respondent sought an order which could not be made.[32] There was no annexure to her Minute of Orders and, in any event, no evidence of the applicant having possession of personal property sought by her.
12. Otherwise, the parties will retain personal property and sole responsibility for their own debts.
13. Such orders are just and equitable.
14. Costs will be reserved for 28 days.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

[3] Amended Response filed 30/5/25 at Orders 43-44

[4] Paragraphs [62], [69], [71], and last sentence of [128]

[5] Applicant's affidavit at [27] and [30]; Respondent's first affidavit at [86]-[88]

[6] Respondent's first affidavit at [113]

[7] Applicant's affidavit at [51] and [55]

[8] Applicant's affidavit at [56]; Respondent's first affidavit at [51], [54], [97]-[98]

[9] Applicant's affidavit at [53]-[54]

[10] Applicant's affidavit at [64]; Respondent's first affidavit at [33], [101]

[12] Respondent's first affidavit at [46], [84], [90], [95], [107]

[14] Applicant's affidavit at [24]; Respondent's first affidavit at [70]

[17] Respondent's first affidavit at [25], [36]

[18] Respondent's first affidavit at [40], [46]

[19] Respondent's first affidavit at [19], [34], [83]

[20] Respondent's first affidavit at [37], [136]

[21] Respondent's first affidavit at [108], [133]; Respondent's second affidavit at [13]

[22] Respondent's first affidavit at [72]

[23] Respondent's second affidavit at [12]

[24] Respondent's first affidavit at [103], [136]

[25] Respondent's first affidavit at [129]; Respondent's second affidavit at [17]

[27] Exhibit A1 at Order 8(c); Exhibit R1 at Order 2(b)