Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish

(a) Within 7 days of the date of this Order, the applicant will do all acts and things to file a Notice of Withdrawal, removing Caveat No. [redacted] registered against Y Street, at the applicant's expense;

(b) Y Street will be listed for sale by private treaty with such agent ("the Agent") as is agreed between the parties in writing, and failing agreement the applicant will nominate a panel of 3 real estate agents for the litigation guardian's nomination within 7 days of receiving the panel;

(c) The list price of Y Street will be as agreed between the parties and, failing agreement, the list price will be as nominated by the Agent;

(d) The marketing strategy will be as agreed between the parties and, failing agreement, the marketing strategy will be as nominated by the Agent;

(e) The respondent and the applicant will consult with the Agent about the offers received, for which purpose both parties agree to provide his/her response and (if applicable) written consent within 24 hours of being presented with any offers by the Agent, provided that, in the absence of any offer to purchase the property at a price higher than the list price upon the expiration of 4 weeks after the date on which Y Street is first listed for sale, then any offer which is at least 97.5% of the list price will be accepted by the parties as the sale price;

(f) The respondent and the applicant are to co-operate in every way with the Agent in relation to the marketing of Y Street for sale, including that the applicant will make the key readily available, allow inspections of Y Street at all times reasonably requested by the Agent, and ensure that Y Street is clean, neat and in good order at the time of inspection by any prospective buyer;

(g) Any sums requested for advertising or sale costs will be paid from the proceeds of sale before any division between the parties and if payment is required prior to settlement, the respondent will meet the expense in the first instance (and, if such expenses have been paid by the respondent, he will be reimbursed from the proceeds of sale);

(h) Upon agreement being reached for sale of Y Street, the respondent (or his nominee) and applicant will execute the contract of sale and all other documents necessary to complete the sale of Y Street including all transfer documentation forthwith upon its submission by the Agent or the solicitor acting in the sale ("the Conveyancer"), with the Conveyancer's fees to be met from the net sale proceeds (or, if such expenses are required to be paid by the respondent, he will be reimbursed from the proceeds of sale);

(i) Within 14 days from the date of these Orders, the applicant will nominate a panel of 3 conveyancers located in City D, and the respondent will provide his nomination within 7 days of receipt of the panel who shall then be appointed by the parties as the Conveyancer; and

(j) Upon the sale of Y Street, the proceeds of sale will be paid in the following manner and priority:

(i) Payment of the Agent's commission and advertising or other expenses (including auction costs and further staging suggested by the Agent, if any) payable on the sale;

(ii) Payment of the legal costs and outlays relating to the sale, including but not limited to the Conveyancer's fees;

(iii) Payment of any funds owing to the Commonwealth Bank of Australia, so as to discharge Mortgage No. [redacted];

(iv) Payment of any reimbursement to either party made in accordance with paragraphs 3(g), 3(h), 4(f) and 4(g) herein; and

(v) The balance to be paid 50% to the applicant and 50% to the respondent.

(a) Y Street is not sold by private treaty pursuant to paragraph 3 above, on or before 2 months from the date of the order; or

(b) if the respondent and applicant otherwise agree to an auction campaign in preference to a private treaty sale;

then the respondent and applicant will do all acts and sign all documents as are necessary to sell Y Street by auction and the following will apply:

(c) Y Street will be listed with the Agent appointed under paragraph 3(b) or the Agent's nominated auctioneer ("the Auctioneer") for sale by auction within a further 4 weeks;

(d) The respondent and applicant will execute all documents requested by the Auctioneer for sale of the property by auction;

(e) The reserve price will be such amount as is agreed between the parties and failing agreement being reached between the parties 14 days prior to the auction, then the reserve price will be as nominated by the Auctioneer;

(f) Any sums requested for advertising or auction expenses will be paid from the proceeds of sale before any division between the parties and if payment is required prior to settlement, the respondent will meet the expense in the first instance, with the respondent to be reimbursed from the proceeds of sale;

(g) The parties will give such instructions as are necessary to the Conveyancer to prepare a contract of sale and provide it to the Auctioneer prior to the auction no later than the date sought by the Auctioneer, and the costs to be met by the respondent in the first instance, with the respondent to be reimbursed from the sale proceeds;

(h) The parties agree to co-operate in every way with the Auctioneer in relation to the sale by auction, and the applicant will allow inspection of Y Street at all times reasonably requested by the Auctioneer and ensure that the property is clean, neat and in good order at the time of any inspection and on the day of auction;

(i) The sale price of Y Street will be any amount in excess of the reserve price but, in the event of the reserve price not being reached, the sale price of Y Street will be such amount as is agreed between the parties or, failing agreement, any offer received after the auction to buy the property at a price that is at least 95% of the Reserve Price will be accepted by the parties;

(j) The respondent and the applicant will attend the auction, and be available to negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under paragraph 4(i) above; and

(k) Upon agreement being reached for sale of Y Street, paragraphs 3(h) to 3(j) above will apply.

1. In the event Y Street is not sold at any auction pursuant to paragraph 4 above, or within 14 days after the date of the auction by further negotiation, then the respondent and applicant will cause a further auction of the property to be held within 2 months after the date of the first auction, and every 2 months thereafter until a sale of Y Street has been achieved and, for that purpose, the provisions of paragraph 4 above will apply.
2. In the event that the parties are unable to agree on valuations for any item of property of the parties or either of them for the purposes of s 90SM of the Act, then they each pay one half of the cost of such valuations.

1. There is no Court by the name "Federal Circuit and Family Court of Australia". This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
2. The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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). In addition to the use of pseudonyms for the parties, other changes have been made to the published judgment to protect the identity of a party or a witness. Such changes (other than when a letter is used instead of a name or an address) are apparent on the face of the judgment by the use of square brackets.

1. When the applicant, Ms Mullins, and the respondent, Mr Sawyer, commenced a de facto relationship in 2012, it is common ground that they were each financially secure and comfortable, although the respondent had significantly more wealth than the applicant.
2. The respondent is 86 years of age and appears by way of a litigation guardian due to a loss of cognitive capacity. The applicant is 68 years of age and retired.
3. Despite commencing proceedings for a property settlement pursuant to s 90SM of the Family Law Act 1975 (Cth) ("the Act") in July 2024, the applicant's claim remains completely unparticularised which is most unsatisfactory, and I will order that situation be remedied within 7 days.
4. The applicant has already paid over $200,000 in legal costs, with estimated further costs of $255,000. The respondent has already paid about $170,000, with estimated further costs ranging between $538,000 to $738,000.
5. Notwithstanding this matter being included in the Major Complex Financial Proceedings list, and transferred to this Court on 6 February 2025, there is nothing about the case which indicates to me that it is complex. The mere fact that the husband has organised his financial affairs by utilising companies and trust structures does not of itself make it complex. One can only hope that at some point common sense will prevail and the parties will resolve what appears to me to be a straightforward dispute.
6. In any event the matters before me for determination today were identified in the order of the registrar made on 3 July 2025, namely:

(1) The application by the applicant that the respondent pay her $170,000 by way of an interim costs order pursuant to s 114UB of the Act (which the registrar refers to as paragraphs 1 and 3 of a minute of order sought in the applicant's case outline filed 26 June 2025 which was amended by a further case outline filed 14 July 2025 which deleted an order for sole use of a property at Suburb Z, Queensland ("the Y Street property") which was previously paragraph 3);

(2) The application by the respondent for the immediate sale of the jointly owned Y Street property (which the registrar refers to as paragraphs 4 to 6 inclusive of the minute of order sought in the respondent's case outline filed on 26 June 2025); and

(3) The question of how the costs of expert valuations are to be met (which appears to be a reference to paragraph 16 of the respondent's minute of order in his case outline).

1. By way of brief background, it is uncontentious that during their relationship, which ended in 2024, the applicant and respondent continued to maintain separate finances apart from the purchase of the Y Street property in 2012 in joint names. The applicant concedes that the respondent largely paid for their joint lifestyle during the relationship, although she contends, she made some contributions to joint holidays, groceries, entertainment, vehicle and petrol costs and in the latter stages of their relationship, that she provided the respondent with ad hoc payments of $1,500 as a contribution to the household bills.
2. It is also uncontentious that the respondent contributed about $487,000 to the purchase of the Y Street property and paid for extensive renovations to that property, although the applicant contends that she designed the renovations, prepared all concept design drawings, detailed documentation, the scope of works, and schedules and selections of finishes, fittings, and equipment. Further, the applicant contends that she arranged for and coordinated the costings and quotations from all tenderers and then oversaw the renovations.
3. The applicant also contends that she made substantial non-financial contributions to properties owned and/or purchased by the respondent including "assistance with decisions as to the acquisition of particular properties, renovations carried out to the properties including the preparation of designs and concept drawings" and that she accompanied the respondent to business meetings and site visits.
4. It is uncontentious that the respondent's cognitive capacity was in decline during the relationship and the applicant contends she made significant contributions to his care as his health deteriorated, although she concedes that carers were engaged to assist.
5. The respondent opposes any property alteration order. He contends that upon the sale of the jointly owned Y Street property the net proceeds should be divided equally.

1. Section 114UB(2) of the Act relevantly provides:

If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (3) of this section, ... make any order for costs ... that the court considers just, whether by way of interlocutory order or otherwise.

1. Although under s 114UB(1) each party generally bears their own costs, the Court has a broad discretion to make orders as to costs that the Court considers just, where there are circumstances that justify it doing so (s 114UB(2)).[1]
2. Section 114UB(3) of the Act, lists the factors to which the Court must have regard in determining what order (if any) should be made under s 114UB(2). The only factors to which submissions were directed concerned ss (3)(a) (financial circumstances of each party) and perhaps ss (3)(g) (such other matters as the Court considers relevant).
3. The weight to be accorded to each relevant factor is entirely a matter within the discretion of the Court.[2]
4. An applicant for costs bears no "additional or special onus" other than the establishment of "justifying circumstances".[3]
5. The applicant's average weekly income is $4,015. The applicant's claimed weekly expenditure is $7,037 which includes nearly $3,000 per week for her estimated future legal fees. Her latest financial statement filed on 14 July 2025 shows property in her name valued at $1,821,458 (including the 50% share in the Y Street property), superannuation of $1,655,452, so-called financial resources identified as the Mullins Design Trust of $3,540,913 and liabilities of $30,327.
6. It is common ground that the applicant is the sole guardian and appointor of the Mullins Design Trust which she established in 1986. The trustee is Mullins Design Pty Ltd and the applicant is the sole director and shareholder. There is no suggestion that the trust and trustee are other than controlled by the applicant and that she historically has distributed funds to herself and to an adult son (most recently in 2024). The applicant is the sole beneficiary of the Superannuation Fund 3 in which she had a withdrawal benefit as of 30 June 2024 of $1,453,073 from which she received pension payments for that year of $69,130. Her current estimate of value for that fund is $1,777,114.
7. The respondent's average weekly income is $33,613. The respondent's claimed weekly expenditure is $36,542. The respondent resides in an assisted living facility for which he incurs significant care costs from nurses and others of $17,025 per week. His claimed weekly expenditure also includes anticipated legal fees of $1,800 per week and income tax of $14,997 per week. His latest financial statement filed on 30 May 2025, shows personal property interests of about $54,000,000 as well as yet to be valued commercial properties. At the time of filing his financial statement, he had a tax liability of $311,580 which was due to be paid on 16 June 2025.
8. Contrary to the position argued in her case outline and attached written submissions, it is conceded by the applicant that if she draws on funds within her control she will not thereby incur a taxation impost. The applicant's submission is that she should not have to draw on her own capital reserves to meet her legal fees.
9. The respondent submits that in order to pay future legal costs of the applicant of $170,000 he will need to access his capital reserves to do so, just like the applicant would and that is not a justifying circumstance to make the order sought by her.
10. I agree. The application for an interim costs order will be dismissed.

1. The Y Street property was the home in which the parties lived until their separation in early 2024. The applicant remained in the home after separation and the respondent continued to meet most of the outgoings until about the end of 2024 when he reduced his contribution and ultimately an interim order was made by consent that he pay one half of a long list of outgoings on an interim basis.
2. The applicant points out the significant costs to maintain the Y Street property and contends that the respondent should pay the entirety of those expenses.
3. It is important to observe that neither party wishes to retain the Y Street property as part of the property settlement, but the applicant contends that she wants to retain it in the short term to avoid the cost of perhaps twice relocating i.e. once on the sale of the Y Street property and perhaps again when the property proceedings are finalised.
4. However, it is uncontentious that the applicant did not live in the Y Street property from 22 February 2025 until 21 June 2025. During this time, she lived in Victoria. The applicant is silent about the circumstances of her significant absence from the property despite knowing for at least a month that this was a factor that the respondent was intending to focus on during this hearing. I can only infer that the wife did not address this in her evidence because it would not have assisted her case to do so.
5. Having regard to the fact that neither party wishes to retain the Y Street property and the significant costs in maintaining the property, which the wife contends she cannot afford to pay, I do not regard the applicant's preference to possibly avoid two relocations (depending on when the property sells and where she might relocate to) as a principled reason to reject the respondent's application for the property to be placed on the market for sale.
6. As no submissions were made by the applicant as to the form of a sale order, I will adopt paragraphs 4 to 6 of the order sought in respondent's case outline filed on 26 June 2025.

1. Other than the applicant indicating that she would consent to pay one half of the costs of the valuations if she were successful in her application for her future legal costs of $170,000 to be paid, the applicant did not address this issue in submissions.
2. Likewise, other than the respondent indicating a wish for each party to pay one half of any valuation costs, which would be the usual course, no submissions were made.
3. In my view, while one can only hope that the parties can agree on valuations, if they cannot, I see no reason why that should be a cost met by only the respondent.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew.

[1] Collins & Collins [1985] FamCA 15; (1985) FLC 91-603 at 79,877.

[2] Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at 130.

[3] Penfold v Penfold (1980) 144 CLR 311 at 315.