Gadens Ridgeway v Paroulakis

1. Unless otherwise specified in these Orders, the wife retain to the exclusion of the husband, all other assets, liabilities, and resources in her sole name and possession, including but not limited to:

(a) All bank accounts in her sole name;

(b) Any superannuation interests;

(c) Any other assets in her sole name and possession.

1. Unless otherwise specified in these Orders, the husband retain to the exclusion of the wife all other assets, liabilities, and resources in his sole name and possession, including but not limited to:

(a) All bank accounts in his sole name;

(b) His interest in his Superannuation Fund 1 fund;

(c) Any other assets in his sole name and possession.

1. Unless otherwise specified in these Orders, and save for the purposes of enforcing monies due under these or any subsequent Orders:

(a) Each party be solely entitled to the exclusion of the other party to all other property (including choses in action) in the possession of such party as at the date of these Orders;

(b) Each party retain their respective superannuation entitlements;

(c) Insurance policies remain the sole property of the beneficiary named therein;

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.

1. Each party shall thereafter remain liable and responsible for the payment of all their separate and unspecified debts and liabilities in their separate names including but not limited to any other unspecified loans, credit cards, personal guarantees, or taxation liabilities incurred in his or her sole name and each party shall indemnify and keep the other party forever indemnified in relation thereto.
2. Each party otherwise be solely liable for any liability in their respective names and will indemnify the other against any liability encumbering any item of property to which that party is solely entitled pursuant to this Order.
3. All extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
4. Anyone wishing to make an application for costs may do so in accordance with the Rules of court. Any application for costs be supported by an estimate of costs drawn in accordance with the Court's scale of costs without prejudice to claim that costs be calculated on any other basis.

1. There is a loan owed by the wife to the first intervenor AD Lawyers in the amount of $88,000.
2. There is a loan owed by the wife to the second intervenor ZZ Lawyers in the amount of $30,000.

1. The second named intervenor consented to being paid out second in time, after the entirety of the debt to AD Lawyers had been paid. They did not seek to be on a pro rata basis.

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

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

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

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

1. This matter comes before me on remittal as a rehearing of the wife's application for property settlement in proceedings initiated on 19 January 2017. The only substantial remaining property is $172,517 (plus any accrued interest) which is held on trust by a law firm, AD Lawyers, the wife's former solicitors. In spite of formal applications, by the end of the hearing, the husband and wife each sought that he/she be entitled to all of the funds and that the other spouse get nothing further.
2. The applicant wife is Ms Wei, and the respondent husband is Mr Wei. The husband and wife commenced cohabitation in either late 2006 or early 2007. The precise date is disputed but not material. They married in Country TT in 2007, separated on 14 December 2016 and divorced in 2018. It was a relationship of about 10 years duration.
3. The wife relocated back to Country TT in 2019. The husband and wife have one child together, a son, Z, born 2009 who is now aged 15 ("Z" or "the child"). The wife lives in Country TT with Zand is his primary caregiver.
4. The wife in these proceedings was the husband's second wife. The husband currently lives in Suburb P, a suburb of Melbourne, with his third wife, Ms PP, and their three children who at the time of the hearing were aged 5, 3 and 1. The husband had two children with his first wife, who are relevant to the proceedings. They are Mr Y aged 40 years and Ms X aged 38 years. Mr Y and Ms X live in Country TT and are not dependants of the husband.
5. The husband and the wife speak Country TT language as a first language and do not speak English. Consequently, both the husband and the wife had the use of interpreters provided to them by the Court for all mentions and the final hearing, at no cost to themselves. At the final hearing, the husband complained that his first interpreter spoke too "low", and he could not understand her, and she subsequently asked to be excused. Another interpreter was arranged for the husband.
6. While not contended to be an asset divisible between the husband and wife, the significant historical asset (discussion of which took up a large amount of Court time) is the husband's interest in KK Ltd ("KK Ltd"). KK Ltd was established by the husband in Country TT in 2001. At the time of the husband and wife's cohabitation, the major asset of the holding company KK Ltd was a 67% shareholding in LL Ltd ("LL Ltd"). The husband was the managing director of LL Ltd until he passed the role to his adult son Mr Y in 2015 or 2016. He also gifted his ownership of the holding company KK Ltd to his adult daughter Ms X in October 2015. The remaining 33% shareholding in LL Ltd was held by a state-owned company, OO Ltd. The state-owned OO Ltd ("OO Ltd") compulsorily acquired LL Ltd in 2016 for approximately AU$6.8 million which was paid to KK Ltd, owned at that point by the husband's daughter Ms X.
7. While KK Ltd generated sizeable wealth, by the time it did so the husband had divested himself of any interest in the entity and consequential profit. By this stage, the husband and wife had been married for about ten years. The wife does not make any application consequent upon the husband having divested himself of the valuable interest in favour of his daughter.

1. This matter has significant history in the Court consisting of an undefended first instance hearing and decision, successful appeal, and now remittal rehearing. The wife initiated the proceedings on 19 January 2017. The husband's Response was filed on 1 May 2017.
2. The wife filed a Notice of Discontinuance of the proceedings on 12 August 2019 but applied to have that set aside by way of an Application in a Proceeding filed on 28 August 2019. The wife did not attend the hearing of her application to set aside her Notice of Discontinuance. The former solicitors for the wife, AD Lawyers, were joined as intervenors at the Case Management Hearing on 22 November 2019. They seek payment of costs and disbursements owing by the wife and to be paid from the wife's entitlement to a property settlement between herself and the husband under s 79 of the Act. The proceedings were then heard on 3 and 4 December 2019, 6 January 2020 and 19 February 2020. The wife did not attend. The trial before the primary judge proceeded on an undefended basis, the husband seeking orders under s 79 of the Family Law Act 1975 (Cth) ("the Act").
3. On 31 January 2020, for reasons then delivered, the primary judge pronounced final property orders, which were later perfected by entry on 3 February 2020. From these Orders the husband filed his first appeal ("appeal SOA 14 of 2020").
4. On 24 February 2020, the primary judge handed down a further judgment that purported to correct the 31 January 2020 reasons and 3 February 2020 Orders. From these Orders the husband filed his second appeal ("appeal SOA 15 of 2020").
5. Also on 24 February 2020, the primary judge delivered an amended judgment that effected corrections to the 31 January 2020 reasons and 3 February 2020 Orders. From these Orders the husband filed his third appeal ("appeal SOA 17 of 2020").
6. All three appeals succeeded on 10 September 2020[1] and the matter was remitted for re-hearing.
7. The matter was first set down before me for final hearing on 9 June 2021 but did not proceed.
8. On 26 August 2022, the matter was set down for final hearing before me commencing on 26 June 2023. On that date the matter was unable to commence as a fully attended trial as the wife was not in attendance. The matter had previously been set as a fully attended trial by consent of all parties. I delivered reasons for the adjournment. I incorporate those reasons into these reasons: Wei & Wei [2023] FedCFamC1F 631.
9. At a Case Management Hearing on 16 November 2023, the matter was still unsatisfactorily prepared, but I took the view it needed to proceed to final hearing. I published further ex-tempore reasons: Wei & Wei (No 2) [2023] FedCFamC1F 996. I incorporate those reasons into these reasons.
10. I made a section 102NA Order on 24 April 2024. Bramham Lawyers acted for the wife from 21 May 2024. Mayek Legal acted for the husband from 17 June 2024.
11. The matter was listed before Judicial Registrar McGowan for the purposes of a Conciliation Conference on 19 July 2024. The husband's legal practitioner, Mayek Legal, failed to appear at the Conciliation Conference and the matter did not settle.

1. The final hearing proceeded before me over six days from 22 to 26 July 2024 and 19 August 2024. The wife had leave to attend via the MS Teams platform, and the husband appeared in Court. The wife was represented by Ms Albore of Bramham Lawyers as solicitor-advocate, and the husband by Ms Vogel of Counsel instructed by Mayek Legal. Representation for both the husband and wife was pursuant to s 102NA of the Act. The first named intervenor was excused but was represented on the first morning and final afternoon by Mr AC, solicitor of AD Lawyers. The second named intervenor joined the proceedings on 19 August 2024 and was represented on the final afternoon by Mr ZZ, solicitor, of ZZ Lawyers.
2. The matter was not well prepared. The practitioners had not obtained adequate instructions prior to the commencement of the hearing and, consequently, Court time was wasted. For example, on the third day of hearing the Court heard that the wife had not been provided with a copy of the husband's trial affidavit. Her solicitor stated that she had sent it via email on multiple occasions. However, the copy provided was in English and, moreover, the wife said that she had not been able to open the document on her computer. It was the solicitor's responsibility to ensure that her client was adequately prepared for the final hearing. Similarly, the husband's instructions to Counsel departed from his Case Outline but an updated Case Outline was not filed. No Case Outline was filed at all on behalf of the wife (a Case Summary had been previously filed, but it pre-dated the wife's Notice of Discontinuance in 2019).
3. The intervenor attended at the commencement of the final hearing but was excused from further attendance after it was clarified that they would have no standing in a s 79 property application except to assert their interest and consequently would not be able to cross-examine the husband and wife on issues other than enforcement: Gadens Ridgeway v Paroulakis (1992) FLC 92- 311. That is, the intervenor could not run the wife's case even though it is clearly in the interests of the intervenor that the wife obtains an order for at least as much of the remaining monies as to pay the debt owed to the intervenor.
4. On the fifth day of hearing, the solicitor for the wife informed the Court that the husband had initiated proceedings in Country TT seeking custody of the child. There were previous parenting orders in Australia providing for the child to live with his father in Australia dated 11 July 2019. The order was made by consent however the child has relocated to Country TT and now lives with the wife. The solicitor for the wife said that the husband's new application for custody in Country TT constituted coercive control and was intended to intimidate the wife. The husband gave viva voce evidence that he first filed in April or May 2024 seeking that the child live with him in Australia because he found out on New Year in 2023 that the wife was not looking after the child adequately. He says that Z told him he has only seen his mother once this year and that he is in the primary care of the maternal grandmother. The child attends a boarding school. The husband says he does not currently pay for the child's school fees as he does not have the capacity to do so. The husband says he has no intention to go to Country TT to prosecute his case but has entrusted lawyers in Country TT to handle it. He gave evidence that he expects the proceedings to cost less than AU$1,000. There was no evidence before me as to the outcome, or likely success, of any such proceeding.
5. The wife's evidence is that Z was enrolled in a private boarding school in late 2022 which is paid for by the wife. No further evidence was provided as to Z's living arrangements with the wife. I am satisfied that Z is financially dependent on the wife on a day-to-day basis.

1. The husband contended that there be over a million dollars in addbacks against the wife. The wife likewise contended there be addbacks against the husband. For the reasons set out below, it is not appropriate that there be addbacks against either spouse.
2. I have found the non-superannuation property interests of the husband and wife to consist only of the funds held in trust by AD Lawyers (agreed to be $172,517). I have determined that the wife should receive the benefit of the entirety of the funds. From the wife's entitlement, AD Lawyers will receive $88,000, ZZ Lawyers will receive $30,000 and the wife will receive the balance.

1. Section 79 of the Act confers power on the Court to make an order for alteration of property interests. First, I am required to identify the legal and equitable interests of the husband and wife in property which includes superannuation interests. Second, I must be satisfied that it is just and equitable, within the meaning of s 79(2), to make any order altering the interests of the husband and wife in property. If I am not so satisfied, the application will come to an end. Third, I will assess the various contributions of the husband and wife. That is their direct or indirect financial and non-financial contributions to property and contributions as homemaker to the welfare of the family constituted by the husband and wife. Fourth, I will consider the effect of any proposed order on the earning capacity of either the husband and wife within the meaning of s 79(4)(c) of the Act and make any adjustment to the contribution-based entitlement of the husband and wife as a consequence of any impact on earning capacity. Then I must consider as many of the matters referred to in s 75(2) of the Act as are relevant. This includes, by reference to s 75(2)(o), any fact or circumstance which, in the opinion of the Court, the justice of the situation requires be taken into account shall be taken into account. Finally, I must be satisfied that, in all of the circumstances, the order which I propose to make altering the interests of the husband and wife is just and equitable within the meaning of s 79(2) of the Act and appropriate within the meaning of s 79(1).

1. The parties prepared an electronic Court Book using eBrief which was relied upon for the hearing.
2. The wife relied on:
   • Her Amended Application for Final Orders filed on 16 February 2023; and
   • Her affidavit affirmed on 15 February 2023.
3. The wife's most recent Financial Statement was dated 3 October 2022. There was no explanation as to why there was not an updated Financial Statement. I granted leave for the wife to re-open her examination in chief in relation to her financial position. The wife's evidence can be summarised as follows:
   • The wife is currently working in maintenance on a casual basis and is earning approximately AU$1,000 per month;
   • The wife has expenses of less than AU$200 per week, not including rent which is approximately AU$100 a month;
   • The wife did not work between 2017 and 2021, and has worked in maintenance on a casual basis since 2021;
   • The wife has a medical condition and depression (although I note this is not mentioned in her written material);
   • The wife applied the majority of funds received by her post separation to pay legal fees, child expenses, medical treatments, and repayment of a loan owed by her in respect of money she says she borrowed to assist the husband's cash flow in his business;
   • The wife has no real property in Country TT;
   • The wife's only outstanding debts are to her previous lawyers;
   • The wife has "a few thousand [in Country TT Currency] " in the bank; and
   • The wife has no superannuation in Australia.
4. Money is described in both AUD and Country TT Currency (Country TT Currency). The working conversion rate agreed to by the parties was 1 AUD = 5 Country TT Currency . Where currency is not specified in these reasons, money is in Australian currency ("AU").
5. By the end of the proceedings, the husband and the wife each sought that the entirety of the funds ($172,517) be paid to him/her and that the other spouse gets nothing apart from what they already have. The wife sought that each spouse indemnify the other with respect to any debts or liabilities. The husband sought that the wife be declared as jointly liable to a debt purportedly owed by him to his adult children in the amount of $1,127,525 (discussed at [117]).
6. Pursuant to her Amended Application for Final Orders dated 16 February 2023, the wife seeks that the money held in the AD Lawyers trust account (approximately $172,517) be released to the wife, and that $88,000 of it be paid to AD Lawyers to settle the outstanding debt owed by her to the firm. She did not oppose the application filed by ZZ Lawyers on the last day seeking outstanding costs owed by the wife to the firm also be paid out of her entitlement. The wife also proposed that the money received by the husband paid out of trust accounts and used by the husband to pay his legal costs form part of a partial property settlement for the husband. The amenity of the partial property settlement is lost on me and in any event the husband's paid legal fees are considered as a s75(2)(o) factor below.
7. The wife did not file an up-to-date Case Outline. Her Case Outline from 14 March 2019, prepared by AD Lawyers, was uploaded to eBrief as a document sought to be tendered but was not so tendered. It was not relied upon by the wife and was filed before the wife filed her Notice of Discontinuance in the first proceedings in August 2019.
8. The wife tendered Exhibit W1 which contained proposed orders which included that the sum held by AD Lawyers on trust be split evenly between the husband and the wife and that each spouse otherwise retain all assets, liabilities and resources in their sole name.
9. The solicitor for wife, at the end of the hearing, finally submitted that as the husband had received far more money than the wife since separation and will continue to do so into the future, the wife should be afforded the entirety of the remaining pool of $172,517 held on trust by AD Lawyers. Precisely:[2]

MS ALBORE: I would say that there should be a 70/30 split between the parties [husband and wife]. And if it's accepted that the wife has received less money than the husband post-separation, then she deserves to get a large chunk of what's in the [AD Trust] account. Notwithstanding that a lot of it's going to have to be paid on legal fees, but she deserves to - well, on my calculations, if she has received money of 25 about 600,000 less than the husband post-separation, then she won't meet the 70 per cent rate and she should get the lot.

[...]

MS ALBORE: ...But upon doing the calculations from the table of assets and liabilities, the husband has received more money than her, and he will continue to receive more money than her into the future. So on the wife's case, given the calculations and the table of assets and liabilities, the wife should be afforded the entire $172,000.

1. The husband, in his Amended Response filed 15 March 2023 sought that the wife's case be dismissed. The husband relies on:
   • His Amended Response to Final Orders filed on 15 March 2023;
   • His affidavit affirmed on 11 June 2024; and
   • An affidavit of Ms X affirmed on 31 May 2024.
2. Counsel for the husband sought to rely on an affidavit of Ms X affirmed on 31 May 2024. It was not filed in time or listed in the husband's Case Outline. Leave for the husband to rely upon the affidavit was not opposed and, ultimately, the wife did not seek to cross-examine the witness. Ms X's affidavit is filed in support of the husband's claim that Ms X lent the husband-and-wife Country TT Currency 2.7 million to build a business in Australia. She deposes that, due to Country TT's foreign exchange restrictions, she transferred this money to her father and the wife through her friends, and her father gave her an "IOU". She says she consented to her father's plan to no longer purchase the business premises and buy residential property and trusted he would repay it. Her affidavit ends with a request that "the Australian Court could kindly give priority consideration to judging that the property under the names of [Mr WEI] and [Ms WEI] can be returned to me".[3]
3. The husband, by the end of the hearing, sought 100 per cent of the asset pool, being the money held on trust in the sum of $172,517. The husband also seeks that there be significant add-backs against the wife in the total sum of AU$1,038,000 on the basis of "interim distributions" and that the entirety of the funds held on trust by AD Lawyers be paid to him. Further, he seeks a declaration that he and the wife are each liable for half the debts of $1,172,525 purportedly owed to Ms X, Mr Y and Mr H (his two adult children and a cousin) (see discussion at [57]-[59] and [116]-[119] below). He also seeks costs for his representation in the appeals as well as incurred responding to the wife's Applications in a Case filed 16 February 2019 ($131,918.89), 13 February 2021 ($180,739.11) and 16 February 2023 (not yet calculated). However, no submissions were made as to costs, and I regard the costs application as not having been pressed.
4. Counsel for the husband submitted that, if the intervenors get paid out of the property pool, he should have all that remains of the pool. However, the intervenors did not seek to be paid "out of the property pool". They sought to be paid out of the wife's entitlement.
5. The intervenors are both previous solicitors of the wife. They have each intervened to attempt to recover some of the legal fees owed to them by the wife.
6. The first intervenor, AD Lawyers, initially sought summary judgment on the basis of lack of compliance by the husband and wife and uploaded to the eBrief written submissions to that effect. This was not pressed.
7. The first named intervenor relied on:
   • A Response filed on 26 April 2021;
   • An affidavit of Mr AF sworn and filed on 26 April 2021;
   • An affidavit of Ms M sworn and filed on 20 November 2019;
   • Written submissions of Mr AGregarding equitable charge filed 10 December 2019;
   • Written submissions of Mr AGregarding foreign judgments filed 13 December 2019;
   • The affidavit of Ms Wei paragraph 82 affirmed on 15 February 2023; and
   • The affidavit of Mr Wei paragraphs 416 to 419 affirmed on 11 June 2024.
8. The first named intervenor agreed with the wife's proposal that the firm will be paid, if at all, out of the wife's entitlement.
9. The second named intervenor, ZZ Lawyers, relied on:
   • An Application in a Proceeding filed on 20 August 2024; and
   • An affidavit of Mr ZZ sworn and filed on 17 August 2024.
10. The second named intervenor consented to being paid out second in time, after the entirety of the debt to AD Lawyers had been paid. They did not seek payment on a pro rata basis.
11. There were extensive attachments to the affidavits of the husband and the wife. I warned the husband and the wife that I do not read attachments or annexures to affidavits unless the attachment or annexure are tendered into evidence. Rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia Rules 2024 (Cth) provides that a document that is to be used in conjunction with an affidavit (i.e. an annexure to an affidavit) must not be accepted as evidence in the proceeding unless and until it is tendered in evidence at the hearing of the application and accepted into evidence by the court.
12. The husband tendered 10 exhibits, and the wife tendered three. There was one Court exhibit. I have considered all of the relevant evidence and have commented on specific documents where they were particularly useful. The fact that I have not mentioned a fact, a document in evidence or a submission does not mean that I have not taken it into account: Whisler & Whisler [2010] FamCAFC 18 (Warnick J).

1. Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court's assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
2. A statement of fact is a finding of fact.

1. When the husband and wife commenced cohabitation in late 2006 or early 2007, the wife owned a property in the CC District, Country TT (the CC District Property) (Exhibit H4). The wife says she purchased it for the equivalent of AU$82,662 with AU$16,662 from her own savings and the balance of approximately AU$66,000 provided by mortgage finance. The wife's evidence was that prior to the relationship she was self-employed and operated two businesses in AH Province, Country TT. The wife sold these businesses and stopped working in mid-2007 to become a full time "housewife".
2. When the husband divorced his first wife, in 2004, he gifted his children Ms X and Mr Y significant assets. The husband's evidence was that he owed money to the children of his first marriage. In the property settlement with his first wife, the husband retained his interest in LL Ltd discussed above at [6], Motor Vehicle 1 and a 100% interest in a property in W Province, Country TT with an estimated value of $1,260. His son, Mr Y, retained one business in City S and one property in City GG, MM District. His daughter, Ms X, received four million in Country TT Currency. The husband did not claim to receive any cash payment from the financial settlement of his first marriage.
3. The husband and wife signed a "pre-nuptial agreement" in Country TT in mid- 2007. I understand that the agreement was drawn by the husband and apparently provides that neither spouse can make a claim against the other and/or they will keep their property and associated liabilities separate from one another. The agreement is not in evidence. It is not contended that it has force or effect in these proceeding before me pursuant to Part VIIIA of the Act or otherwise. Somewhat ironically, the husband asserts that the wife has taken advantage of the agreement in Country TT by using it as a bar to proceedings being issued by him against her. I say that the complaint is ironic because, as I understand it, that was intended to be the effect of the agreement which he wrote.
4. The husband and wife's child, Z, was born in 2009.
5. From mid-2009 to late 2013, the husband and the wife lived together at AJ Building, AK District, AE District, City DD, Country TT (the "AE District Property"). Exhibit H4 includes a title certificate for this property which lists the joint owners as the husband and wife and three mortgages, the latest of which was discharged in October 2014.[4]
6. Throughout their relationship and until their relocation to Australia, the husband obtained loans secured by mortgages over various properties, including the wife's property at CC District and the AE District Property, registered in his sole name or in the name of himself and the wife. The monies received were applied to relieve cash flow issues within the LL Ltd company. However, in cross-examination, he denied that the company had a cashflow problem at cohabitation or during the relationship. This stands in contrast to his affidavit evidence that "after marriage...the business faced cash flow challenges, I would have no income".[5] His evidence was that he sometimes lent the company money using the wife's name. The wife says that she loaned approximately $280,000 to LL Ltd from 2008-2012 and $212,617 remains owing to her.[6] The wife's evidence was that she incurred some debts through personal loans obtained to raise money for the husband's companies. According to the wife, one such lender was a woman by the name of Ms AL to which the wife says she owed significant amounts of money. A further lender was Mr AM who the wife says she borrowed funds from to assist Ms X.[7] Neither Ms AL or Mr AM gave evidence in these proceedings and the husband says that the loans are fabricated.[8]
7. Sometime in 2012, the husband and wife decided to relocate to Australia. The husband says that he and the wife purchased a property registered under their joint names in a "[...]" suburb but could not remember the name of the suburb. He says the purchase price was approximately AU$590,000 with $30,000 paid in cash and the balance provided by Bank AN and secured by mortgage. The husband gave evidence that the property was sold in late 2013 for $625,000 because the wife "despised" it and "because her luxurious lifestyle and vanity do not allow her to live in a small second-hand house."[9] The wife did not include this property in her narrative. It was never identified with anymore particularity than being a property "in the [...]" and that, according to the husband at least, it was a "second-hand" house.
8. The husband claims that in 2012 or 2013, his adult children, Ms X and Mr Y, as well as a cousin, Mr H, agreed to invest in a business that the husband sought to establish in Australia. The husband's evidence was that he borrowed $10,000 from Mr Y in June 2014, $29,000 from Mr H in August and December 2014, and a further $126,000 from Ms X. The wife says that this is all "made up" and that, instead, Ms X, Mr Y and Mr H helped with moving money belonging to the husband and her from Country TT to Australia for the business investment visa. The wife stated that the Country TT government has a restriction on sending money out of Country TT, so the couple's money had to be transferred to Australia using other people's names, including Ms X, Mr Y and Mr H. The husband deposes that between 2012 and 2015 approximately AU$1,874,000 was transferred to various accounts in Australia consisting of:[10]
   • [The husband's] savings in Country TT and the proceeds of the sale of the AE District Property AUD E$701,335;
   • Loan from Ms X AUD E$493,625;
   • Loan from Mr Y AUD ES$545,900; and
   • Loan from Mr H AUD ES133,000.
9. The husband maintains that the amounts were loans and that he had informed Ms X, Mr Y and Mr H that "I would use their money to buy a house first, and when the Applicant and I sold [AE District Property] and [CC District Property], we would make up for the money we would had use to establish a [business] in Australia".[11]
10. The husband exhibited 104 pages as Exhibit H7 which purports to evidence of the transactions however the documents are illegible and largely appear to be in Country TT language. In any event, the fact of the transfers from the husband's family members to Australia was not in issue. The issue is whether they were transferring their own money (and whether that was a loan or investment) or, on the wife's case, that the money was money held and transferred by the family members on behalf of the husband and wife. The amounts are totalled in Exhibit H8, which are a selection of tables created by the husband noting all the transactions "from [Country TT] to Australia". Exhibit H8, Table A, purports to evidence a transfer from the husband to "[Mr AM]" in the names of 15 different transferors, totalling Country TT Currency of 3,683,511 (or $701,335). Table B purports to summarise all the transfers from Ms X to the wife between July 2012 and June 2015, in the names of at least 8 different transferors and totalling Country TT Currency of 2,740,160 (or $493,626). Table C purports to summarise all transfers from Mr Y to the wife and husband between December 2013 to June 2014. I note it only records four transfers explicitly to the wife and again utilises at least 11 transferor names, totalling Country TT Currency of 3,017,631 (or $545,900). Table D finally summarises the purported transfers from Mr H in November 2023 to December 2014 into the account of the wife, totalling Country TT Currency of 749,552 (or $133,000). These figures form the basis for the claim by the husband that there are outstanding debts owed by him and the wife to the husband's adult children and cousin. All of the summaries are hearsay by the husband and the wife did not consent to the tender of the documents being for all purposes.
11. In late 2013, the husband and wife purchased a property situated at AO Street, Suburb D ("the Suburb D property") for $2,700,000 plus $148,000 in stamp duty. The wife says the purchase price was funded by $963,000 in joint funds and a bank loan of $1.89 million in Australia. The husband's evidence is that he and the wife decided to use monies borrowed from Mr Y and Mr H for the business to settle the house payment and then sell two Country TT properties in the AE District and CC District provinces to raise the funds.
12. In late 2013 or early 2014 and after the purchase of the Suburb D property had settled, the wife moved to Australia and set up a company, F Pty Ltd ("F Pty Ltd") ABN .... The wife says that she was the sole director and secretary of F Pty Ltd from January 2014 until May 2015. The company traded as G Pty Ltd which produced and sold products to local supermarkets and businesses. The wife says that she worked for G Pty Ltd in marketing and delivery. The husband denies the wife ever worked for the Australian business. He says that his current wife has been working for the company since late 2017.
13. Over the course of the relationship, the wife obtained funds approximately equivalent to AU$6,000 per month from the husband or the husband's company in Country TT. The wife says that the amount was a living allowance for the family and spent by her as such. The husband says that the amount was royalties for use of a trademark that he caused to be transferred to her accounts for safekeeping, at her initiative, but that the wife was not authorised to spend the funds. The husband says the wife agreed to hold the funds and said she would return the funds to the company. Over six years, the trademark royalties paid to the wife totalled approximately AU$414,000. Counsel for the husband tendered three documents, Exhibits H1 to H3, which purported to show the receipt by the wife of that income and "splurging", but the documents were not identified by the wife and did not include details of bank accounts or anything else that would be of use to the Court. The documents are merely a summary made by the husband of parts of bank statements which appear in Country TT lanugage.
14. The husband ceased the deposits in October 2014 and directed the money to the bank accounts of his daughter, Ms X. The husband says that this was because the funds were company profits and not for the wife's personal use. The wife maintains the funds were for her personal use and that, when redirected to Ms X, they were for Ms X's personal use and used by Ms X accordingly. It was put to the husband that he must have been aware that the wife was spending that money on personal and family expenses. His evidence is that he did not previously know the wife was using funds and explained that he gave the wife monthly allowances in the form of cash before they moved to Australia.[12] I do not regard the husband's evidence on this issue as credible. He does not impress me as a personality who is casual about money or inclined to pay the wife a monthly allowance in cash once he knew that the wife was using the $6,000 per month for her own benefit and otherwise contrary to what he says was their agreement. Also, a fund out of which the wife could "repay" the trademark royalties was never identified. I accept the wife's evidence that the payments received by her were for the support of the family and applied by her accordingly.
15. The husband and wife sold the Suburb D property in mid-2015 for $2,965,000. They purchased their second residential property situated at E Street, Suburb O ("the Suburb O property") in early 2015 for $1,400,000. The purchase was funded by a deposit of $230,000 received from the proceeds of sale of Suburb D property and $1,120,000.00 was financed by a joint mortgage to NAB. The remaining $900,000 from the Suburb D property sale proceeds was deposited into a joint account with NAB.
16. The husband devotes a large amount of affidavit evidence to what he terms the wife's "reckless spending habits". He says that he and the wife spent $329,627.37 in the 12 months from August 2015 to August 2016. He says that, in order to prevent the wife from "wasting money" he transferred around $600,000 from the joint account into his personal account in September 2016. Of that amount, he had withdrawn $100,000 and deposited it into his ANZ account number ending in ...16. He says those funds were borrowed from Mr H and he intended to repay that loan, but that the partial property settlement order made in June 2017[13] prevented him from doing so as he had to transfer "$50,028" to the wife.[14] The remaining "$449,552" was deposited into his NAB account number ending in ...60. His trial affidavit says he explained what he did with that money in previous affidavits filed 28 June 2019 and 20 September 2019, but those affidavits were not in evidence nor the subject of cross-examination.
17. The wife says that the husband was violent towards her throughout the marriage and that he demanded a divorce in late 2016. She says this was not the first time he threatened a divorce and that this began as early as mid-2014 when he first put pressure on her to sell her CC District property and the joint AE District property. The wife says that from around this time the husband was actively dissipating their joint assets in anticipation of a claim by her for a property settlement. She says that he did this by transferring assets to his adult children. The husband transferred his interests in KK Ltd company to his adult daughter, Ms X, in 2015 for no consideration, and without the wife's knowledge or consent. Further, the husband transferred all his shares in LL Ltd to his adult son, Mr Y, in early 2016 without any consideration. She says that his adult son became the new director and the legal representative of LL Ltd. She says that the husband was earning an annual salary of $331,200 from the companies in Country TT as at March 2015.
18. The husband disagrees with the wife's contentions about his motivation to alienate property and says that he transferred his interests to his children because the businesses were failing without his leadership in Country TT, and he was under pressure from the board of OO Ltd to invest more time and money to prevent further losses. He says that he "wanted to show my gratitude to [Ms X] and [Mr Y] as they allowed me to repay them their money within two years and supported me and my family to build our new life and business in Australia". He said that he informed his wife and also said that he hoped he had more time to return money to Mr Y and Ms X if he transferred the company to them. He said the wife consented to this course of events. The wife says that she did not consent. The husband says the transfer was executed in September 2015 taking effect from October 2015 and that thereafter he had no interest in the companies and stopped receiving his annual income. The husband and wife separated on a final basis in December 2016. The husband received a monthly consulting fee from the Country TT companies of AU$1,000-$2,000 from the end of 2015 until 2018. There is insufficient evidence upon which I can make a precise finding save that I can be satisfied that the husband received income at least equivalent to what he has stated he received, that being a statement against interests.
19. As indicated, the wife commenced these proceedings on 19 January 2017.
20. In early 2017 the police applied for an Intervention Order on behalf of the wife which named the wife and the child, Z, as protected persons. A Final Intervention Order was granted protecting the wife against the husband in early 2017 and expired in early 2018.
21. On 7 June 2017, Johns J made an interim partial property settlement order in the following terms:

1. That by 4.00pm on 8 June 2017 the husband do all such acts and things as may be required to:-

(a) Pay to the wife's lawyer the sum of $250,000, such sum to be held upon trust for the husband and the wife in an interest-bearing account and not released without the prior written consent of the parties or an order of the Court; > > (b) Pay to the wife the sum of $50,000, such sum to be characterised as partial property settlement.

22. The wife says that she received $50,028.[15] The husband says $250,000 was transferred to the AD Lawyers trust account.[16] There is no evidence from the wife or the intervenors as to whether this amount was transferred. On 24 January 2018[17] her Honour Justice Johns made an order which included the words that "the funds held...pursuant to Order 1(a) of the orders of this Honourable Court on 7 June 2017..." From this I conclude that at least some of the funds were paid as ordered on 7 June 2017 and that the funds currently held by AD Lawyers on trust[18] have their origins in the Order of 7 June 2017.
23. In mid-2017, the wife commenced proceedings in MM District Court in Country TT against Ms X and Mr Y (separately) seeking repayment of loans. The appellate Court found in favour of the wife and ordered the repayment of monies from both Ms X and Mr Y totalling $182,104.[19] The husband in his affidavit says this money was joint funds and should be characterised as a part property settlement received by the wife. It was, however, not expressly included in the asset table as settled by the husband and wife during the hearing. In any event the wife's evidence is that the funds have been expended.
24. In September 2017 the husband's solicitor informed the wife's solicitor that the husband would no longer be paying the wife's car registration (Exhibit H6). I note that the registration had expired in August 2017, with the notice sent to the husband's business, and remained expired for 2.5 weeks prior to the letter in September 2017 informing the wife of her obligation to pay the registration.
25. In September 2017 the husband's solicitor wrote to the wife that he would no longer be paying her electricity, water, gas and internet and the connections would be terminated in September 2017 (Exhibit H6).
26. The LL Ltd company was compulsorily acquired by the Country TT government. Exhibit W3 purports to say that the acquisition proceeded following a joint shareholder meeting in late 2017 and that an agreement was signed in late 2018. The judgment which assessed the amount payable in return for the compulsory acquisition was not tendered but was annexed to the wife's affidavit. The judgment ordered that Country TT Currency of 34,342,920.10 (AU$6.8 million) be paid to AP Ltd by way of compensation. The wife contends that this is relevant in the sense that, had the husband not disposed of his interest in the companies to his children, he would have received the benefit of some part, if not all, of the AU$6.8 million. The husband agreed in cross-examination that had he not transferred control of the company to his adult children that he would have been in receipt of the payment (via the company) of AU$6.8 million. I accept that is the case.
27. On 24 January 2018, orders were made (by consent) that the Suburb O property be sold by auction and the balance proceeds be paid to the husband's lawyer, BB Lawyers, to be held on trust.
28. In early 2018, the Suburb O property was sold for $1.49 million. The balance of $222,689.40 was held on trust by BB Lawyers. A further sum of $186,250 was held by the Australian Tax Office as Capital Gain Tax withholding and later returned to the husband and wife in separate shares. The husband deposed that he deposited his half share into the AQ Lawyers trust account and later it was applied to legal fees. He says that the wife did not put the funds into a trust account and has not disclosed what she did with the funds. The wife, in cross-examination, said that she spent the funds on legal fees (her most recent Costs Notice states she has expended $10,000 in paid legal fees), child expenses and medical treatments.
29. The wife's evidence was that, since about 2018, the husband, his adult children and KK Ltd have issued numerous proceedings in Country TT against her which caused her great mental and financial stress. The wife deposed or gave evidence that the husband or his associates have sued her six or eight times and have been unsuccessful every time. The husband gave evidence that KK Ltd commenced legal action against the wife in Country TT over income received by the wife pursuant to a trademark agreement (described above at [63] and below at [152]) however the Court found in favour of the wife. Evidence from both the husband and the wife was that the cost of proceedings in Country TT is modest and, accordingly, costs are not a disincentive to legal proceedings in Country TT.
30. On 21 March 2019, Wilson J made trial directions and orders for filing of material and required the CC District property to be valued. Parenting orders were made on 11 July 2019 with the husband and wife having equal shared parental responsibility for the child and for the child to live with the husband in Australia. At that stage Z was living with the husband in Australia, although the wife says that she was not permitted to contact the child.
31. The wife filed a Notice of Discontinuance on 12 August 2019, "for the sake of [Z's] future." She says she:

[...] did so on the understanding that the husband would go through with his promise to obtain permanent resident status for [Z]. The husband told me that he would utilise our joint funds on [Z's] living expenses and education in Australia.

1. The wife's evidence was that soon after she discontinued her application, the husband sent the child to live in Country TT with a friend of the husband. The husband does not deny this occurred although provides a different narrative or motivation. The wife's evidence was that she was not kept informed of Z's exit from Australia and only discovered the child's whereabouts months later. She says she was reunited with Z in late 2019, unknown to the husband. Thereafter the child has lived with her.
2. The final hearing at first instance was heard by Wilson J on 3 and 4 December 2019 with submissions on 6 January 2020. Wilson J handed down decision in the matter on 31 January 2020 and amended Orders on 24 February 2020. The husband appealed the orders and sought a stay by way of an application dated 3 March 2020 which was dismissed on 11 March 2020.
3. The husband was successful, with the Full Court of the Federal Circuit and Family Court publishing judgment on 10 September 2020. The context of the appeal is summarised in Wei & Wei and Anor [2020] FamCAFC 224 as follows:

[7] At that trial, the husband and the intervenor were agreed that the significant property of the parties remaining in Australia included monies held in trust of $175,270.67 by the intervenor ("the intervenor's trust monies"), $222,689.40 by [BB Lawyers] ("the [BB Lawyers] trust monies") and $93,125.00 by [AQ Lawyers] ("the [AQ Lawyers] trust monies"). However, whilst the primary judge's 3 February 2020 orders divided the intervenor's trust monies, such that the husband received 65 per cent, and the wife 35 per cent (which latter entitlement was directed to be paid in full to the intervenor) no orders were directed to the [BB Lawyers] trust monies, or the [AQ Lawyers] trust monies.

[8] Subsequently, on 13 February 2020, the intervenor sent an email to the Court, identifying that the [BB Lawyers] trust monies and the [AQ Lawyers] trust monies had not been dealt with by the 3 February 2020 orders, in consequence of which the primary judge, of his own motion, relisted the matter on 19 February 2020. That hearing resulted in the two sets of reasons and orders published and made on 24 February 2020. Particularly, his Honour ordered that his earlier reasons and orders be amended so as to also divide the [BB Lawyers] trust monies 65 per cent to the husband, and 35 per cent to the wife, such that $261,761.54 was to be paid to the husband, and $140,948.52 to the wife. The latter was, subject to the payment in full of the intervenor's fees, with the balance remaining of $7,183.13 to be paid to the wife at her last known address. However, for reasons which remain opaque, again no orders were made in relation to the [AQ Lawyers] trust monies.

1. In the meantime, the husband's evidence is that, in accordance with the Order made by Wilson J on 24 February 2020, he received the amount of $222,689 held on trust by BB Lawyers. He deposes in his affidavit to using the funds on legal fees for the appeal and living expenses for his family in 2020. In cross-examination, the husband claimed the entirety of the funds received from BB Lawyers were used on legal fees for the appeal. It is unclear why those funds were released to the husband in the circumstances in which he utilised the funds. In any event, the $222,689 is no longer in existence. The wife claims it should be added back against the husband. The difficulty is that the proposed add back exceeds the available property. It is important that the wife did not receive 35% of the money held by BB Lawyers but given the small amount of property about which the Court can make orders, it is relevant in the context of s 75(2) rather than as an add back.
2. The AQ Lawyers trust monies, $93,125, were, on the husband's evidence, derived from the husband's half of the CGT withholding tax referable to the sale of the Suburb O property. As mentioned by the Full Court, there were no orders made by the primary judge with reference to the AQ Lawyers trust monies or authorising their use by either the husband or wife.[20] In his affidavit, the husband says that the $93,125 was applied in payment of outstanding legal fees to AQ Lawyers.[21] The funds are no longer in existence.
3. Following separation, the husband remains self-employed at a business in Suburb C. His evidence is that he earns about $3,000 a month and his new wife earns $2,000 a month from the business. He says he works about 10 hours a week. He has three young children. He pays no child support or spousal maintenance to the wife, nor does he contribute towards Z's school fees or other living expenses.
4. As set out above, the wife's evidence is that she is currently employed in maintenance. Her income is approximately $52,000 a year ($1,000 a month). The husband disputes that the wife would ever work as a maintenance worker.

1. I find that the husband and the wife were both unreliable witnesses.
2. The husband was angry, inflammatory and animated. When asked direct questions, the husband would take the opportunity to give extended answers that, presumably, he thought supported his case. He seldom answered responsively. He spoke at an unnecessarily loud volume.
3. The wife appeared via the Court's MS Teams platform from Country TT. She gave evidence on days 1, 3 and 4 and 5 of the trial. She presented as assertive but tired, despondent and irritable. Often her appearance was dishevelled. She was not particularly earnest and did not give the impression that she was telling the whole truth. She expressed continually that she just wanted to leave the proceedings debt-free.
4. The wife was not adequately prepared to give evidence remotely. I take this opportunity to set out the necessary preparations for a witness to give evidence remotely. They are:

(1) The behaviour, manner and presentation of a witness should be the same as if they were attending the Court hearing in person. This includes addressing the Judge correctly as "Your Honour" and addressing Counsel politely and courteously.

(2) A witness is to be alone, in a secure room with doors closed.

(3) The witness is to ensure that there will be no interruptions or distractions for the duration of the video appearance at the hearing.

(4) If witnesses are unable to give uninterrupted evidence, they should advise their legal

representatives as soon as practicable.

(5) A witness may have a glass of water with them but a witness is not permitted to eat or to drink anything else during the course of the hearing, without permission to do so.

(6) The witness may take notes and have pen and blank paper for doing so but the taking of notes will not be permitted where it impedes the flow of the evidence.

(7) A witness should have recently re-read all affidavits or statements made by them in these proceedings and have a clean copy of those documents with them. Copy affidavits should be placed face down on the surface in front of the witness and not turned over or read by the witness unless or until the witness is directed to do so. If the witness only has electronic copies, the files should be placed on the desktop of the witness' computer, and not opened or read by the witness unless or until directed to do so.

(8) The witness will be sworn or affirmed by the Associate prior to commencement of their evidence. It is expected that the witness has had explained to them the distinction between an oath and an affirmation and be able to say whether they wish to make an oath or an affirmation.

(9) The party cross-examining the witness is to ensure that the witness has all documents to which they may be referred. This means that a cross-examiner must know in advance what documents will be shown to the witness and ensure that those documents are available to the witness in a timely manner.

(10) Witnesses cannot communicate with anyone about their evidence whilst under cross-examination:

(a) Witnesses are not permitted to use or access their phones whilst giving evidence, except where their evidence is being interpreted. They may use their telephone to communicate with their practitioner at all other times;

(b) Witnesses may be asked to show the Court their location for giving evidence, to confirm that they are alone.

(11) Where an objection is made and discussions are required in the absence of the witness, the witness may be asked to mute their computer or otherwise be virtually ejected from the meeting space and invited to re-join when the objection has been dealt with.

1. These guidelines appear in the Court's Practitioner and Litigant Guide to Electronic Hearings, available here: https://www.fcfcoa.gov.au/pubs/electronic-hearing-teams-guide. To these, there should be added two further requirements. First, a witness giving evidence remotely should not be expected to give evidence when they would ordinarily be asleep in the time-zone in which they are located. This may entail the Court sitting outside regular Court hours. Practitioners have to be careful in scheduling the evidence of remote witnesses. Second, interpretation of a remote witnesses' evidence must be contemporaneous and effected through a separate telephone line so that the hearing does not need to be interrupted for every translation. The wife did observe some of the above protocols but could, and should, have been better prepared by her lawyer in many respects.

LEGAL AND EQUITABLE INTERESTS OF THE HUSBAND AND THE WIFE AND ADD-BACKS SOUGHT AGAINST ONE ANOTHER.

1. Counsel collaborated in creating the below table which was typed by my associate onto the large screen in Court. Counsel contended that these were all of the items of "property" that should be taken into account. However, save for the $172,517 in trust, the balance of items numbered (3) to (18) are addbacks for which one or other spouse contend and represent property which is no longer in existence. Leaving to one side the alleged liabilities, the add backs which the husband and wife propose be taken into account as against the other, if accepted, would total $1,031,483.
2. On the final day of the hearing the practitioners adopted the below table, prepared as described above.

Table of Assets and Liabilities contended by the husband and wife

Interim distribution - trust funds previously held by BB Lawyers, released to Husband and applied in payment of legal costs[22]

Husband's share of ATO tax refund previously held by AQ Lawyers on trust and released to Husband, applied in payment of legal fees.

Wife's share of ATO tax refund released to Wife and applied in payment of living expenses and $10,000 towards legal fees.

Part property settlement received by Husband (effect of Order made on 7 June 2017 (Johns J)) - conceded by Husband and applied to living expenses including rent and bills

Part property settlement received by Wife pursuant to Order made on 7 June 2017 (Johns J) and applied to living expenses.

Sale proceeds of a property in CC District, Country TT retained by wife

Sale proceedings of Motor Vehicle 2 retained by wife

Sale proceeds of a musical instrument retained by wife

Refund of termination of life insurance financial product

Sale proceeds of property in W Province, Country TT

Funds received from husband's adult children Ms X and Mr Y by way of judgment debt in Country TT

Premature distribution to husband from joint ANZ bank account in 2016

Money sent by husband to Ms X in Country TT as a result of sale of a matrimonial property in Country TT

Debt to AD Lawyers on account of Wife's legal fees.

Debt to ZZ Lawyers on account of Wife's legal fees.

Rental proceeds from CC District property in Country TT

1. I referred Counsel to the first instance decision of Boulton & Boulton (No 3) [2024] FedCFamC1F 269 in which Aldridge J made the following observation, with which I respectfully agree and resonate with this case:

[521] The use of addbacks is not now encouraged with the preferred course being to deal with these issues under s 75(2)(o) of the Act (Trevi & Trevi (2018) FLC 93-858).

[522] One of the reasons for this is that the property "added back" now no longer exists and is being taken into account as notional property only. Thus, extensive use of add backs has the potential to skew the distribution of the actual property in an unfair manner, unless great care is taken.

1. In Boulton's case the claimed addbacks constituted 47 per cent of the total net notional and actual property to be divided but the total property was in excess of $7 million. Here, the addbacks of $1,031,483 in a contended pool of $1,204,000 (of which only $172,517 is still in existence), the 'addbacks' constitute 86 per cent. This amply demonstrates that dollar for dollar addbacks is not a remedial measure available in this case. The comments of Aldridge J are not new principle, just succinctly put. In C & C [1998] FamCA 143 the Full Court, comprising Nicholson CJ, Ellis and Kay JJ observed in relation to "addbacks" that it will be "the exception rather than the rule" that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. In Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 the Full Court comprising Bryant CJ, Finn and Thackray JJ said the following about add backs:

[79] We observe that "notional property", which is sometimes "added back" to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute "property of the parties to the marriage or either of them," and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage - and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property" things.

1. The financial resources in (28) to (31) inclusive are not in existence either. They are monies of which the husband says that the wife previously had the benefit. I discuss these below commencing at [124].
2. For the avoidance of doubt, I will discuss some of the items 1 to 31 below.

1. The current balance of funds held in AD Lawyers's trust account is $172,517.[23] References to the amount held in the AD Lawyers trust account should be construed to include any additional interest that has accrued on the principal sum.
2. AD Lawyers acted on behalf of the wife firstly in intervention order proceedings against the husband in the Melbourne Magistrates' Court and subsequent proceedings in the Family Court of Australia (as this Court then was). AD Lawyers and the wife entered into a Deed of Equitable Charge over the Suburb O as she had no income and no access to their funds.
3. According to an affidavit sworn on 20 November 2019 by Ms M, solicitor employed at AD Lawyers, the costs owing to AD Lawyers by the wife on account of legal fees was $133,765.39 as at that date. The amount held on behalf of the husband and wife in the AD Trust Account was $175,270.67 at that date. It is conceded by the husband and wife that the wife currently owes AD Lawyers the sum of $88,000 on account of her legal fees.

1. The husband is the sole director and sole shareholder of F Pty Ltd, ACN ..., trading as "[G Pty Ltd]", a business in Suburb C, Victoria. F Pty Ltd was not joined to the proceedings. It is referred to throughout these proceedings as "[F Pty Ltd]" or "the Australian company".
2. The husband says that the idea behind the business was shared with his adult children in 2012 or 2013. He says Ms X, Mr Y and Mr H agreed with his business proposal and wanted to invest and agreed to lend him funds. It was contemplated, so the husband says, that in the future, Ms X, Mr Y and Mr H would then be able to come to Australia and work in the business.
3. F Pty Ltd was incorporated in Australia in early 2014 with the wife appointed as the sole director and secretary from early 2014 until mid-2015. The husband and wife were under a Visa and the wife became the main applicant in Australia. The husband says the wife assisted in obtaining business registration but that all company affairs of F Pty Ltd were managed by him. The wife says she did as much as she could to help the business grow, saying she was actively involved in marketing and sales. The husband denies the wife ever worked for F Pty Ltd. The husband says that during this period (early 2014 to mid-2015) the husband travelled frequently to Country TT to deal with the running of KK Ltd in Country TT, and at the same time, F Pty Ltd made several international trades in "[a business product]", which was exported to Country TT from Australia by F Pty Ltd.
4. The husband took over as sole director and secretary of the company from mid-2015. His work with the company is his sole employment. The company also employs his current wife, Ms PP, and some part-time staff.
5. The husband says he did not pay himself a wage until September 2017. He does not mention in his affidavit material what, if at all, he paid himself in dividends received from F Pty Ltd. Thereafter, the husband's monthly salary paid for by the Australian company had been around $4,888 after tax but is now reduced to $2,600 to $3,200 which is paid to both himself and his current (third) wife, Ms PP. The husband further asserts that the Australian company is consistently losing money and is only operated by him to comply with the conditions in relation to his visa status, which purportedly requires that he operate a business (no matter how unsuccessful) in Australia.
6. The Australian company was valued by Mr QQ of AT Pty Ltd, whose updated report (pursuant to Orders made on 7 May 2021) dated 31 March 2023 values F Pty Ltd at negative $102,101. Mr QQ was not on affidavit. The wife originally sought the Australian company be included in the pool on the basis that Mr QQ's report indicated a value of $108,427 but conflated the concepts of F Pty Ltd's value and the husband's personal equity in F Pty Ltd. The husband says the company owes himself and his current wife wages from 2020. In addition, the balance sheet in the report records that $245,000 is owed to the husband by the company.
7. Both the husband and the wife concede that the Australian company has little to no value on the basis of the business valuation. However, the wife says that the business primarily operates in cash. Counsel put to her that it would need to be documented for tax purposes. The wife denies that it was documented. The husband said it was primarily cash because he loses his bank card.
8. The wife contends that the husband channelled funds (Country TT Currency of596,258, approximately AU$125,000) from another related product business through a joint account in the name of both the husband and wife and transferred them to Ms X. Counsel for the husband put to the wife that the joint account was a company account and not for personal use. The wife says that when the F Pty Ltd company was under her name they did not do any business in relation to a business product and that the husband was using the personal account to buy the product and export it to Country TT.
9. The evidence is that F Pty Ltd is of nil or nominal value. It is not an asset of value available for division between the husband and wife or an asset or financial resource of the husband to be taken into account pursuant to s75(2)(o).

1. There are multiple addbacks sought by the husband and wife. In accordance with the authorities cited above at [95] and [96] I will deal with those under s75(2)(o) considerations.

Item 19 & 20: Debts owed to AD Lawyers and ZZ Lawyers incurred by the wife

1. It is not contested that the wife owes her former firm, AD Lawyers, $88,000.
2. An intervenor who was late to the proceedings, ZZ Lawyers, is owed $30,000 by the wife. It was agreed between the two intervenors that the debt to AD Lawyers would have priority over the debt to ZZ Lawyers. Both intervenors agreed that they should be paid out of any entitlement owed to the wife rather than be treated as a debt which reduces the funds divisible between the husband and wife.
3. Neither debtor sought that the wife pay them additional interest on the amounts despite the significant period of time in which the debts have remained unpaid.
4. It was apparent that the husband was confused about the treatment of the monies ($118,000) owing by the wife to her previous solicitors. At one point the husband instructed his Counsel to put in open Court that the wife's costs be paid from the $172,000 and the husband be entitled to the balance of the pool. Then it was submitted by Counsel for the husband on several occasions that the husband should not be liable for the wife's legal fees and that the wife's legal costs should not come out of the property pool. However, it was never proposed by the wife or the intervenors that the wife's costs would be a liability which reduces the divisible assets. Any repayment to the intervenors will come out of the wife's entitlement.

Item 21-23: Purported debts owed to husband's adult children and Mr H

1. The husband says that he owes a debt of $493,625 to Ms X, $545,900 to Mr Y and $133,000 to Mr H which he asserts is a joint liability totalling $1,172,525. No contractual or written agreement was put in evidence by the husband as to these purported loans. Mr Y and Mr H were not on affidavit or otherwise called to give evidence. I assume that their evidence would not have been of assistance to the husband. Ms X's affidavit corroborates the husband's claim that Ms X lent the husband-and-wife Country TT Currency 2.7 million to build a business in Australia. She annexes a judgment purporting to evidence the debt (separately tendered as part of Exhibit H9). In the case she is the plaintiff, and the husband is the defendant. There was no contradictor with respect to the existence of the loan and the judgment states "[Mr Wei] has no disagreement on the fact of borrowing claimed by the plaintiff, but he argues that he does not assume legal costs".[24] The judgment in the Country TT proceedings did not make a finding as to the existence of such a loan. The loan was not in issue or examined. The decision was about legal costs.
2. The husband's evidence is that Ms X, Mr Y and Mr H lent him money to establish the company F Pty Ltd and for the purchase of property in Australia. At various points over the course of the hearing he referred, apparently interchangeably, to 'loans' and 'investments'. An investment is not a loan. It does not require repayment. An investor understands that they may lose their capital. The wife contends that the money advanced was an investment. The husband initially said it was a debt to be repaid but then said that he used the term "invest" in his affidavit because that was what was required by his visa. He agreed that the business was a failed investment and that his children knew this. The solicitor for the wife put to him that the money was not used for a business in Australia and asked if he had misused it. He agreed it had been "misused" by himself and his wife to acquire their residential property. The lack of provision for repayment of the monies is more consistent with the monies being money which belonged to the husband or the husband and the wife or an investment made by the children or one of them.
3. In addition, the husband did not demonstrate how the advances, if they were loans, were not offset or forgiven by transferring his interest in KK Ltd to his children.
4. I find that the husband did not establish that the monies provided by family members (being Ms X ($493,625), Mr Y ($545,900) and Mr H ($133,000)) were repayable loans or, indeed, the amount outstanding on any alleged loans. Further, the husband did not establish that the loans (which I do not accept) should be considered as a joint liability of the husband and wife in this proceeding. Whereas Ms X provided an affidavit about monies advanced to the husband, she does not provide evidence of the current agreement for repayment. She does not depose to what she seeks other than to request that "the Australian Court could kindly give priority consideration to judging that the property under the names of [Mr WEI] and [Ms WEI] can be returned to me".[25] Ms X did not seek to intervene in this proceeding, which is conspicuous given the presence of one, then another, intervener seeking to be paid out of the eventual entitlement of a party to the marriage.
5. I am not satisfied that there is a debt owing by the husband to any of his children which is repayable by him to them.

Item 24: Child support owing to the wife by the husband

1. Noting that the child, Z, had been in the wife's care since late 2019, in late 2020, the wife was granted full custody of Z by the Court of City S. At the same time, the husband was ordered to pay Country TT Currency of 3,400 (E$680) per month in child support. He appealed this determination but was unsuccessful. The wife claims that the husband has not paid any child support or living expenses for Z and that the husband owes her approximately $56,000 in arrears of child support.
2. I was not persuaded by the husband and wife to order that money go from Australia to Country TT with respect to child support. I do not know if or how the funds would be received by the wife if I made orders dealing with child support. Further, in the circumstances of the case, where the divisible property is $172,517, the amount purportedly owed by the husband to the wife represents approximately 32.5% of the property.

1. The superannuation trustee was not on notice of these proceedings and there was no application for a superannuation splitting order. No order will be made.

1. The husband contends that the wife has substantial financial resources in Country TT including:
   • Her retirement savings in Country TT;
   • The sale proceeds of Motor Vehicle 3 in Country TT;
   • The rental proceeds from CC District property in Country TT; and
   • Country TT insurance policies.
2. The wife's evidence is that she does not have a superannuation equivalent in Country TT and that she has to pay to get a "retirement plan". She says she has paid approximately AU$11,000 for the retirement plan which is paid to the social security provider in Country TT. She did not receive superannuation from the husband's business when she was employed in Australia.
3. The husband says the wife had the benefit of sale proceeds from Motor Vehicle 3 which was purchased by the husband shortly after the marriage (in approximately 2007) and registered in the wife's name. The husband's evidence is that he purchased the car for Country TT Currency 230,000 ($46,000). The husband's evidence was that the wife sold the car in approximately 2014 but that she did not tell him how much she sold the car for or how she applied the proceeds of sale. Even if proved correct, the husband has mischaracterised the proceeds of sale as a 'financial resource'. It is property of which the wife has had use, and which no longer exists.
4. The husband asserts that the wife has had the benefit of $960 per month by way of rental income received for her property in CC District, Country TT from approximately August 2008 until the property was sold in early 2021. He estimates that the rental income totalled $150,000 and says that he does not know what she did with those funds. The property had been used as security for various mortgages over the course of their marriage including mortgages taken out by the husband and wife. The wife's affidavit does not include information about rental income generated by the CC District property. There is no evidence as to where the rental funds went or if they were accrued at all.
5. The wife says that she received $24,374.78 from the insurance company after she cancelled her life insurance policy. According to the affidavit of the husband:

[108] Insurance in [Country TT] is different from that in Australia Insurance in [Country TT] is a financial product The "insurance premium" is deposited in the insurance company every year According to the insurance financial product agreement, all the insurance premiums and interest can be recovered after a fixed period like 10 years, like the saving in the bank. During this period, a portion of the insurance premiums can be borrowed out temperately [sic]. And once the insurance premium is not paid, the cash value of the insurance financial product can be recovered.

1. The husband contends that this is a financial resource of the wife. The wife says she used the funds, alongside other funds received around this time, to repay outstanding loans to Ms AL who had lent her money, initially to assist with the LL Ltd cashflow problem and secondly to assist the wife in settling her debts to another creditor. She also used some of the proceeds of sale of the CC District property to repay Ms AL. I find that this is not a financial resource. It is funds received and used by the wife.
2. It is likely that the husband and wife both have resources in Country TT. Neither the husband nor wife sought to quantify the value of the financial resources. I find it likely that the husband has access to more significant financial resources overseas than the wife because he had more assets to start with and has continued to engage in business in Country TT either directly, or through entities, or his children. The husband's financial position is, at best, opaque.

1. At paragraph 45 of the husband's affidavit, he includes two ANZ bank accounts which he says amount to savings of $2,769.27 as at the date the affidavit was affirmed.
2. The husband's evidence is that the funds held in the BB Lawyers trust account from the sale of the Suburb O and the husband's half of the ATO tax refund held on trust by AQ Lawyers have been dispersed on legal fees as below: [26]

(1) The husband incurred $131,918.89 in legal costs owed to AQ Lawyers from 5 August 2019 to 9 March 2020. The money paid to AQ Lawyers came from his share of the ATO Tax refund[27] (being funds held in the AQ Lawyers trust account) and "my salary, as well as the money I borrowed from [Mr EE], [Mr FF] and [Mr HH]".[28] The husband says in his affidavit that he still owes two of these personal loans totalling $25,599.[29] However the asserted debtors are not on affidavit and there is no evidence of loans other than the husband's statement which I am not prepared to rely upon without plausible corroborative evidence.

(2) The husband incurred $180,739.11 in legal costs owed to AS Lawyers from 13 February 2020 and through the appeal proceedings. The money paid to the AS Lawyers came from $222,689 released from the BB Lawyers trust fund. It is not apparent on the evidence what the extra $41,950 in the BB Lawyers trust fund released to the husband and not applied in paying legal fees owed to AS Lawyers.

Table of Assets and Liabilities contended by the husband and wife

IS IT JUST & EQUITABLE TO ALTER PROPERTY INTERESTS?

1. The husband and the wife have both sought an alteration of property interests. Neither contended that it was not just and equitable for the Court to make an order, they just differ on what the order should be.
2. Independently of the husband and wife, I have to determine whether it is just and equitable to make an order altering the husband and wife's interest in property at this time. The property is just the $172,517 held on trust, but the assessment of whether a property settlement is just and equitable requires an assessment of the whole of the relationship between the husband and the wife. In this case I am satisfied that, as a result of the choices made by the husband and wife to end their relationship, their common use of property prior to separation and their separate use of property post-separation, that an adjustment of the remaining property is just and equitable.

1. I am required to assess the financial, non-financial and homemaker contributions to property including property no longer owned by the husband and wife. The assessment of contributions to property which has ceased to be property of the husband and wife or either of them requires an assessment of all contributions to all property and not just the $172,517 which will be divided.
2. Counsel for the wife submitted that the wife made significant non-financial contributions including homemaker contributions and that she assisted in the business from time to time. She has primary care of their son. Counsel for the wife submitted that contributions were roughly equal.
3. Counsel for the husband submitted that contributions should be assessed in the proportions of 60 per cent to the husband and 40 per cent to the wife, as was expressed in his Case Outline. However, the final position of the husband was that he should receive 100% of the asset pool with unspecified reliance is placed on s75(2)(o)). Accordingly, I am not sure at what proportion the husband alleges his contributions should be assessed.

1. Counsel for the husband submitted that the husband made more significant contributions than the wife during the marriage and after separation. In addition, the wife had the benefit of joint funds for investment, loans from friends and gave money to friends to purchase property in her sole name in Country TT. That is correct but the same can be said of the husband save that his financial dealings were generally with family rather than friends.
2. There was insufficient evidence produced by either the husband and the wife to establish any significant connection between the properties held in Country TT and the remaining $172,517 in the AD Lawyers trust fund. The information about the real properties was contradictory and confusing.

1. The husband says that the wife did not bring any assets or income into the relationship. The wife's evidence was that she did have property. The husband deposed that "we ha[d] huge assets" at the beginning of the relationship. It was later clarified that he was referring to the companies in Country TT. The husband says that at the beginning of the relationship his company in Country TT brought in tens of millions of dollars a year, including three business premises. He says he was the chairman of that board and separately owned:[30]

(a) A property in W Province, Country TT - $1,260;

(b) AE District Property - sold in 2014 for $1,240,000;

(c) Motor Vehicle 1;

(d) 100% of the issued shares in the company KK Ltd; and

(e) The income from LL Ltd.

1. The wife says that prior to cohabitation she owned and ran two businesses in AH Province, Country TT and that she gave them up to become a full-time housewife at the husband's insistence. The wife says that she used her earnings to purchase two houses in Country TT. It was put to her that the use of those funds was not a contribution to the marriage, but she said it was, and that through those properties she lent money to the husband's business premises and purchased a car for his daughter. The wife denied that she refused to work outside the home during the marriage, saying that the husband asked her not to work and to care for the family instead, for example through "being his driver", which she did (an indirect financial contribution insofar as the travel was business related and a homemaker contribution insofar as the travel was personal).

1. The wife's case is that, at the time of cohabitation, she owned a property in CC District, Country TT. The wife says she purchased it for the equivalent of AU$16,662 from her own savings, with the remainder met by mortgage of about AU$66,000. The husband says that he gave the wife AU$15,000 to purchase a property in CC District which the wife never repaid and that he paid the home loan associated with that property throughout their marriage, which he quantifies at approximately $66,000. The wife says she brought the property into the relationship. Her affidavit references an annexure which purports to support that, but it was not tendered.
2. The husband says the property was tenanted and the wife received the rental income which he estimates totalled $150,000. The wife says that the husband paid off the mortgage against the CC District property but then borrowed $466,000 using the property as security in September 2013.
3. The husband deposes that the appraised price of the CC District property as at 30 May 2019 was Country TT Currency of 3,814,863 (AU E$799,699). The valuation was obtained pursuant to the Orders of Justice Wilson on 21 March 2019.
4. The husband claims that the wife, in her Financial Statement filed on 9 July 2019, conceded that she owned only a 50% share in the CC District property despite it being registered in her sole name. The husband alleges that the wife, previously in proceedings, conceded that he owned 50% of the CC District property as he paid off the debt and mortgage of the house. However, I accept that he did this in order to re-borrow against the property. In these proceedings the wife relies on a later Financial Statement filed 3 October 2022 which does not include the CC District property, it having already being sold at that point.
5. The husband says the wife sold the property for $600,000 in 2021 and that the wife did not disclose the receipt of the sale proceeds and kept them. He says she did not raise her intention to sell the property at any time prior to sale and that she first disclosed she had sold it in mid-2021. The husband says that the prenuptial agreement in Country TT means he cannot recover any of the funds. He agrees to $600,000 as the sale price.[31] He contends that the funds should be characterised as a partial property settlement. The wife gave evidence that the funds were dispersed repaying loans including a loan to Ms AL which had originally been borrowed to assist the husband alleviate cash flow issues within his companies.
6. I find that the wife brought the property into the relationship and the husband made a monetary contribution to the acquisition cost plus some mortgage repayments out of what would have been joint funds. When one has regard to the way in which the couple ordered their life together, they jointly benefited from using the property as security.

1. The wife says that the properties purchased in Australia throughout the relationship were jointly owned and funded by joint funds from Country TT or by bank loans.
2. Throughout the course of the relationship, the following additional properties in Country TT were acquired and disposed of, although the narratives, values and contributions are not agreed by the husband and wife:
   • The AE District Property. The wife says the property was purchased in 2007 in their joint names and that she paid the deposit and renovated the property. The husband says he purchased the property in 2007 from his savings and a home loan. The wife says that the husband borrowed against this property for business purposes but that she did not know how much. This property was sold for approximately AU$1,240,000 in 2014. The husband says that the majority of the funds were applied to discharge the outstanding mortgage over the property and remitted to Australia to assist in the purchase of the Suburb O property. The wife says she agreed to sell the property because the husband threatened to divorce her and that all the proceeds were transferred to the LL Ltd company via his daughter, Ms X. According to the husband, the sale proceeds were the subject of proceedings in Country TT initiated by the wife, first against Ms X and then against the husband. In short, in July 2018 the wife contended that Ms X sold the property and did not give the wife the proceeds. That claim was dropped in April 2021. The claim against the husband was filed in November 2019 and contended that the wife was owed 50% of the sale proceeds of the property. This claim was unsuccessful.[32] In cross-examination, the husband admitted that some funds were deposited to his Bank AR account in Country TT (and later remitted to Australia) and that the remainder was transferred to Ms X which he estimates to be approximately $400,000. He says that Ms X spent the money on daily expenses such as air tickets.
   • The "AU Property**" or "[...]**" was a further property in the AE District that the husband says the husband and wife purchased in around late 2009. The husband says that the wife registered the property in her sister's name and once he found out about the arrangement he objected and the property was sold. The husband says the wife then used the proceeds (about AU$200,000) without his permission and lent it to her friend, who returned the funds on request in 2013 and the money was remitted to Australia. The wife did not mention the AU Property in her affidavit and was not taken to it in the course of cross-examination.
3. The husband says that their income in Australia, prior to setting up the F Pty Ltd company, was about $27,000 a month by way of remittances from Country TT. The husband said his personal income in Country TT, in good times, had been about $20,000 a month, but that it fluctuated. The wife says the husband's annual income was $331,000 after tax in 2015 but has no evidence of this. The husband disputes it. I cannot make a finding.
4. The husband's evidence was that he kept paying the wife money from separation until the partial settlement Order of Justice Johns in 2017. The wife said the husband stopped paying her around the time he told her he wanted a divorce. The husband (or those who advise him) appears to place great store in monies being characterised as part property settlement. However, characterisation of property as a partial property settlement does not ensure that the recipient will be deemed to have received and retained the property on account of his or her entitlement to a property settlement. Instead, the characterisation of property as a partial settlement identifies the power of the Court to make the order which provided for the transfer of property.

1. A significant source of income for the wife during the relationship was money received by the husband's KK Ltd company in Country TT. The company is a holding company and received royalties for use of its trademark. The husband set up the payments so that they were received by the wife. The wife says they were for personal expenditure. The husband says they were held on trust by the wife for the company and that her use of the funds was in breach of that trust and should be repaid. The company which held the trademark had never operated, there was no accountant or business as it was only a holding company. The husband says the wife pressured him to direct the funds to her. The husband says he would ask the wife about the trademark monies, but she would get angry with him. The husband's evidence was that he never thought to redirect the payment of the trademark monies into another account to avoid it being used for personal expenses by the wife.
2. Counsel for the husband said that there was a decision in Country TT where the husband challenged the wife's retention of the trademark income but was unsuccessful. Counsel for the husband was not able to establish why I should go behind that decision and add the sum of an estimated $414,000 of now dispersed trademark royalites back to the property pool now. The husband claimed there was an appeal in Country TT of this original decision in which the Court did not support the company's view. I will not make an order that would circumvent the legal process in Country TT. If the husband has a good claim, I assume that he will succeed in Country TT in recovering the monies paid to the wife over the course of the relationship. Furthermore, the proceedings in Country TT are instigated by the company that paid the trademark royalties. The husband has not retained his interest in that company. He has transferred it to his daughter Ms X and neither the daughter nor the company is party to this proceeding. There is no basis on which I can make an order in relation to those funds. I take into account by way of contributions that the husband, through his company, contributed $414,000 to the family by way of trademark income received and applied by the wife.

1. It was put to the husband that he cut off all payments to the wife after separation. He says there was a distribution in 2017 (pursuant to the Orders of Johns J) and that he continued payments until December 2017 until he notified her then that he could not afford it anymore.
2. The husband denied cutting the wife off financially at separation, but he did withdraw money from the NAB joint account, which he says was to control her spending problem and that he "could not control her".

1. The husband's evidence is that he made non-financial contributions during the relationship such as repairing and maintaining the property, gardening and some housework, cooking, cleaning, delivering and picking up Z from school most days and took care of the child on holidays. He says that Z lived with him from January 2019 until the end of 2019 in Australia before the husband sent Z to Country TT because he was not willing to pay for the full international student fees for Z's studies.

1. The wife ceased work shortly after the husband and wife commenced cohabitation, and on the wife's case, at the request of the husband. She says she, together with her mother, looked after Z when the husband went to work and also took care of the husband's children when they returned from boarding school during weekends and holidays. The husband conceded that the wife was the primary carer however claimed that they hired nannies in Country TT. I do not consider that hiring a nanny absolved the wife from responsibility for childcare. I would need to know much more about the nanny arrangements and the couple's lifestyle before making a finding to that effect.
2. The wife claims that the husband left her to renovate the AE District property while she was pregnant. The husband denies this. The failure of the husband to explain how the renovations were otherwise affected or supervised, lends weight to the wife's version.
3. It was put to the husband that while the wife stayed at home, he was able to work hard and generate income. The wife's evidence was that the husband worked for more than 10 hours each day while she stayed home and cooked. The husband did not agree and stated that he worked hard prior to the relationship and denied that he would not have been able to generate income without the wife. He further stated that the wife was a bad cook and claimed that he was the primary carer for the child outside of work hours. I doubt that was the case. If the husband had been the primary carer, he would have been more likely to retain Z in his care, rather than send him to live elsewhere during the months that Z was out of the wife's care.
4. The husband denies the wife contributed in a non-financial way, arguing that the wife had left Z alone in Australia in 2017 while she returned to Country TT. He says the wife enjoyed a luxurious lifestyle and spent lavishly, claiming he had photos to prove the wife's lavish spending. I did not see the photos; they were not tendered.
5. Taking all contributions into account, and mindful that the husband brought a valuable business into the relationship but divested himself of it during the relationship apparently for no value, the best I can do is to assess the contributions of the husband and the wife to be equal. That is, in the proportions of 50/50.

1. Section 79(4)(e) requires the Court to consider matters referred to in s75(2) in so far as they are relevant. Section 75(2) of the Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. There is no spousal maintenance claim in this case but s75(2) also provides a prospective element or forward-looking perspective for the determination of property settlement. The assessment of contributions during the marriage is from a retrospective perspective.
2. By way of adjustments pursuant to s75(2), the wife says the husband has had the benefit of more financial resources than she has. Counsel also pointed to the wife's care of Z, who she says has "special needs". The wife says that the husband has a business and between himself and his new partner, they have far higher earning capacity than she does. I do not accept that his current wife's income can be taken into account when looking at the income earning capacity of the husband and wife in this proceeding. That said, it does seem that the husband's income earning capacity is greater than the wife. Early in the hearing, Counsel for the wife sought an adjustment, pursuant to s75(2) in favour of the wife resulting in a 70/30 split in favour of the wife or, at best, that the wife receives 100% of the amount held by AD Lawyers (from which there would be deducted the two amounts owing in legal costs).
3. Counsel for the husband submitted that the husband has greater future needs than the wife but was unable to articulate the percentage adjustment attributable to any particular s75(2) factor relied upon.[33] The husband's Case Outline included a 10% adjustment in favour of the husband. The husband's final position departed from his Case Outline, and I understand he no longer relies on it. It was nevertheless tendered and marked Exhibit H10. Counsel for the husband was unable to articulate why the husband ought to receive a 40% adjustment on the basis of s75(2) factors.

The age and state of health of each of the husband and wife (s 75(2)(a))

1. The husband is 62 years old and the wife is 49 years old. The husband is in good health. The wife's health fluctuates. She says she is on medication and suffers from severe depression. She says she needs to see a doctor about a medical condition.

Income, property and financial resources of each of the husband and wife and the physical and mental capacity of each of them for appropriate gainful employment (s 75(2)(b))

1. The wife has been employed as a casual maintenance worker in Country TT since 2021. The husband contends that she had employment from 2018 onwards in Country TT. The wife denies this, saying that she was constantly flying back and forth from Australia to Country TT for her Court case. She says that her paperwork evidencing employment was fraudulent and obtained for the purposes of obtaining a visa to enter Australia. She admits that she lied to the Department of Immigration in order to obtain visas in 2018.
2. The husband put to the wife that she has received over $1,021,000 since separation in November 2016. This averages to approximately $125,000 per year post-separation. The wife denies this. I asked Counsel for the husband to prepare a table of this purported income but one was not produced.
3. The wife says the husband makes Country TT Currency of 1.65 million annually plus bonuses every year. The husband says he did not receive a salary until 2020. The wife says he receives wages from two companies including LL Ltd. The husband says he only makes $3,200 from F Pty Ltd every month by way of wages. The husband contended that any cash was deposited into a bank account every month. The wife disputes that he does so. There is insufficient evidence for me to make a finding.
4. The husband works 20-30 hours a week in business. He agrees he is capable of working but disagrees that he has better prospects of employment than the wife. He says he does not think the wife works at all. He says she has used the money received post separation, such as the CC District proceeds of $600,000, to "care for the child". However, he is not paying child support.
5. The husband does not agree that the wife's income is less stable than his. He says that his business does not generate money but that he needs to operate the business for visa purposes. He says he does not speak good English and has three young children to support.
6. The husband says the wife owns the property she lives in currently. The wife did not clarify this point but says she lives with her mother. He says that her salary on her return to Country TT was $300,000. She says she did not work until COVID-19 restrictions were lifted and found a job as a casual maintenance worker.
7. The husband and wife agree that the husband has not paid the wife child support. The wife says that she is owed AU$56,000 in child support pursuant to an order of a Country TT court, but as stated above at [122] I will not make such an order.
8. I find that caring for Z will be a life-long responsibility of the wife.

Commitments of each of the husband and wife that are necessary to enable the party to support himself or herself and a child or other person that the person has a duty to maintain and the responsibilities of either party to support another person (s 75(2)(d) and (e))

1. The husband has made an application in the Country TT courts to have Z live with him in Australia. It was put to the husband that he could not afford to support another child on his current income, which on his case, is very modest. The husband accepts that the child has "special needs" and would require more support, which he says would include counselling and more care.
2. The wife says the child has been diagnosed with various neurodevelopmental disorders. The wife tendered Exhibit W2 which is a doctor's report from 2018 stating these disorders which included ADHDand other learning and emotional disorders. The child was 8 years old at the time of assessment. The doctor noted that the child will require ongoing assistance for his reading difficulties, or he will not be able to read or write as an adult. It is unclear if this has been addressed.

Eligibility of either party for a pension, allowance or benefit from the government or from a superannuation fund or scheme (s 75(2)(f))

1. The husband and wife's superannuation interests are described above. The husband has some modest superannuation, and he is not far from reaching the age of release.
2. The wife has terminated her life insurance in Country TT which she says is the equivalent of superannuation in Country TT.

A standard or living that is in all circumstances reasonable (s75(2)(g))

1. A reference to 'reasonable' in this sub-paragraph imputes a necessity to economise if necessary. The husband says that while he has no savings, he is able to meet the day-to-day living expenses of his family. He says he is living in rental accommodation that consumes all his income.
2. The wife's living circumstances are unclear. The husband contends that she owns the property she lives in. The wife says she lives with her mother to save money. The wife says she has a casual maintenance job and makes about AU$1,000 a month. She is Z's primary carer. Z is at private school due to his learning difficulties.

The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party (s75(2)(j); the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration (s75(2)(k)); and the financial circumstances relating to the cohabitation with any new partners (s75(2)(m).

1. The relationship was approximately 10 years in duration. The wife contends that she was required to stop working by the husband upon cohabitation including the sale of her businesses in Country TT. She says she worked in an administrative capacity supporting the husband's business in Australia upon relocation and primarily cared for the children. Upon her return to Country TT her work has been limited by her care of Z. I infer that her working prospects were not assisted by a long period without formal employment.
2. The husband's business in Australia was set up with the assistance of the wife. He contends she did not assist in home duties while he was at work. He generates an income, albeit modest on his case, from that business. He has a younger wife who is also able to work and generate an income, although he says she works in the business and takes care of their children.

Any fact or circumstance which, in the opinion of the Court, the justice requires to be taken into account (s75(2)(o))

1. Addbacks were a contentious issue in this trial. The husband and wife have each contended the other has already received significant funds. I find that they both have had the benefit of significant property and financial resources until this point.
2. In final addresses, and in conflict with the husband's position for the majority of the hearing, Counsel for the husband conceded that a small asset pool is not amenable to addbacks.[34]
3. The wife pressed the following addbacks in addition to legal costs paid by the husband:
   • Interim distribution - trust funds previously held by BB Lawyers, released to husband and applied in payment of legal costs - $222,689;
   • Husband's share of ATO tax refund released to husband and applied in payment of legal fees - $93,125;
   • Part property settlement received by husband (effect of Order made on 7 June 2017 (Johns J)) - conceded by husband and applied to living expenses including rent and bills - $70,000;
   • Sale proceeds of property in W Province, Country TT - $100,000 but husband says $1,260;
   • Funds in the husband's Bank AR Account - dissipated - $20,000;
   • Premature distribution to husband from joint ANZ bank account in 2016 -$100,000 but husband says NIL; and
   • Money sent by husband to Ms X in Country TT as a result of sale of a matrimonial property in Country TT - $1,204,000 but husband says NIL.
4. The total monetary value of the addbacks pressed by the wife is over $1.7 million. The actual property pool is approximately 10% of that figure. They each wish to add and subtract items from the available pool of resources to be divided to artificially create something to divide.
5. The husband's case, in essence, is that the wife has received monies which should be viewed as an interim property settlement and that he should retain all the remaining Australian assets (being the funds held on trust).
6. The only assets available for distribution are the funds held on trust, and, in theory, the husband's interest in the F Pty Ltd company which he says is worth a nominal value which the wife has not brought any evidence to contradict.
7. Neither the husband and wife has called corroborative witnesses and their evidence in support of their own financial situations (historically and presently) is insufficient to create a full picture of spending and requirements.
8. The Court should not descend into an audit of the party's living expenses.
9. The financial transactions which have been the focus of attention in this case have been lost in the missives of time. For the most part, the husband and wife have made no apparent effort to work out how the monies have been applied let alone to be able to produce corroborative evidence such as contracts or bank statements. The stock standard response by both the husband and wife in cross examination was that funds had been spent on "living expenses and repayment of loans" without any proof of either.

1. The husband received $222,689 from a trust account held by BB Lawyers, derived from the sale proceeds of the Suburb O property, and a further refund of $93,125 from the Australian Taxation Office previously held by AQ Lawyers. These funds were applied by the husband in payment of legal costs, principally for the three appeals which were decided in his favour. While he did not file a Costs Notice, the husband says has had paid at least $312,658 in legal costs. He says he owes personal loans in the amount of $25,599 and used these funds in partial payment of legal costs but there is no other evidence to support this claim, in circumstances where it would not have been difficult to obtain corroborative documents.
2. Legal costs are a particular class of add back. As Aldridge J succinctly pointed out in Boulton's case:

[524] Notwithstanding, add backs for paid legal fees are an accepted category (DJM v JLM [1998] FamCA 97; (1998) FLC 92-816 ("DJM"); NHC and RCH [2004] FamCA 633; (2004) FLC 93-204). The basis for the add back is said to be that if otherwise divisible property is used to pay legal fees, then, if it is not added back, there is a de facto costs order under s 117 of the Act which has the "effect of defeating [its] policy" (DJM at [11.6]). This is because one party is then contributing to the other's legal costs.

1. Earlier, it was stated by Murphy J in Trevi's case, with which Alstergren DCJ (as he then was) and Kent J agreed:[35]

[36] Paid legal fees occupy a particular position in the consideration of addbacks by reason of s 117(1) of the Act; a matter not relevant to any other form of expenditure or dissipation of property the subject of an addback claim.

[37] An order failing to addback legal costs is a pre-emptive decision about one party paying the other's legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party's costs.

[38] If, contrary to the demands of that section, there is to be a payment of costs, the award is dependent upon a finding of justifying circumstances which, in turn, is dependent upon (non-exhaustive) considerations all of which are informed by antecedent events - for example, whether one party has been "wholly unsuccessful" and "the conduct of the parties to the proceedings". An award of the costs of trial, if any, is in the usual run of events made after the respective entitlements of the parties to a settlement of property have been assessed and, importantly, any awarded costs are paid from the assessed entitlement to property received by the paying party.

[39] As has been said, legitimate guidelines "guide the exercise of a discretion"; they do not replace it. Guidelines, must "[preserve], so far as it is possible to do so, the capacity ... to do justice according to the needs of the individual case". The decision to addback or not addback paid legal fees remains a matter of discretion. But, a finding that it is just and equitable to not addback an amount of legal fees so paid is a finding that it is just and equitable for the other party to contribute to the costs of the first party in that proportion as part of an overall assessment of the justice and equity governing their property division.

[40] The considerations just referred to are plainly always important and central to the exercise of that discretion in respect of paid legal fees.

[41] The passages from Chorn, quoted above, draw a distinction between legal costs met from property that would otherwise be available at trial and legal costs met from funds "generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance)". The proposition there advanced, that such expenditure "would generally not be added back", also needs to be seen as a guideline informing the relevant discretion rather than determining it. A further distinction is suggested in Chorn between funds generated in that manner and "[f]unds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement".

[42] The latter suggestion recognises the discretion inherent in the task and also, perhaps, that in the particular circumstances of a case, adding back sums generated post-separation in the different manners suggested might create injustice as much as it might cure it.

(footnotes omitted)

1. Whilst the legal costs paid by the husband meet the criteria of an addback, there is no sensible basis upon which an addback can be applied because the addback is a sum greater than the property available for division. However, the rationale that had the monies not been applied in payment of legal costs they would still be in the hands of the husband, makes a compelling case for the husband's payment of legal costs to be a factor taken into account under s75(2)(o) in favour of the wife.

1. There are no Costs Notices filed with the exception of one filed by the wife's former lawyers, ZZ Lawyers, which say that she had paid $10,000 as at 6 September 2019 (pre-dating the remittal) with a further $30,000 in unbilled work in progress as at 4 June 2023. This is clearly the figure that is the basis of the second intervenor's claim against the wife. The wife did not retain paid lawyers after the retainer with ZZ Lawyers was severed.
2. For the same reason as items 3 and 4, I will not allow an add back of $10,000 claimed by the husband against the wife, as evidenced in her Costs Notice as being paid legal costs. However, I will make allowance for same under s75(2)(o). I will not consider the remainder of the amount which the wife says was spent on "living expenses".

1. The husband's claim with respect to the wife's "ATO refund" in the amount of $91,168 has its basis in the Orders of Johns J on 7 June 2017, where her Honour ordered that the balance of the proceeds from the sale of the Suburb O property be held by the husband's lawyer, BB Lawyers, on behalf of the husband and wife. On sale of the Suburb O property, the husband says the wife received 50% of the tax refund withheld by the ATO for the purposes of Capital Gains Tax which was not levied. The husband says that, pursuant to the Order of Johns J, the wife should have paid this amount into the husband's lawyer's trust account, as he says he did.[36] I note here that the husband's evidence is that his share of the refund was paid into the trust account of AQ Lawyers,[37] not BB Lawyers as notated in the Orders of Johns J. In any event his share of the refund has been applied to legal fees.
2. The husband says the funds received by the wife and not placed in the trust account should be characterised as a part property settlement against the wife. As stated above, the characterisation of funds as a partial property settlement goes to the source of the power exercised to make such an order as opposed to the power to make orders for, say, maintenance or costs or child support. It does not mean that the monies are added back as property already received. There is usually no distinction between using property or income. Indeed, once income is received, it is property.
3. The wife says the funds have been spent on living expenses and are no longer in existence. She says $10,000 went toward legal fees, accounted for above.

Items 7 - 13: Monies received and contended by the husband to be added back against the wife

1. Items 7-13 as asserted consist of:
   • Part property settlement received by Wife pursuant to Order made on 7 June 2017 (Johns J) and applied to living expenses.
   • Sale proceeds of a property in CC District, Country TT retained by wife
   • Sale proceeds of Motor Vehicle 1 retained by wife
   • Sale proceedings of Motor Vehicle 2 retained by wife
   • Sale proceeds of a musical instrument retained by wife
   • Sale proceeds of Motor Vehicle 4 retained by wife
   • Refund of termination of life insurance financial product
2. In final submissions, Counsel for the wife submitted that the funds were applied to living expenses, summarised in the below extract of transcript:[38]

HER HONOUR: ...add-backs sought by the husband against the wife, what do you say in relation to the proceeds of the property of [CC District]? That's the one that she owned - says she owned before.

MS ALBORE: Yes, that's correct. Well, she says she did have that property prior to the relationship.

HER HONOUR: Yes. And sold.

MS ALBORE: Sold, yes, for day to day living expenses.

HER HONOUR: Okay, [Motor Vehicle 1].

MS ALBORE: Yes, that was also applied towards her living expenses. She says at paragraph 45 of her affidavit that she bore all the expenses in relation to the child [Z]. The husband's refusal to contribute meant that she decided to sell [Motor Vehicle 1] for $30,000 in [mid] 2017, and those funds were applied towards the child, and other living expenses.

HER HONOUR: When did she get the [CC District, Country TT] money? ... I'm talking about the sale, and what she did with it.

MS ALBORE: She says day to day living expenses.

HER HONOUR: $600,000.

MS ALBORE: She also - she loaned some funds from her friends for living expenses as well.

HER HONOUR: Did she borrow some funds from her friends?

MS ALBORE: She did, she did borrow some funds for living expenses, and so she had to repay those as well.

HER HONOUR: How much? It doesn't really matter if you borrowed for living expenses, or you have living expenses, she says it all went on living expenses, or repayment of loans for living expenses.

MS ALBORE: Well, that's right, yes.

HER HONOUR: [Motor Vehicle 2], number 10, $60,000. What happened to that, and when did it come in?

MS ALBORE: Yes. So she sold [Motor Vehicle 2]in [late] 2017, she received $60,000 from that sale. She paid $5000 to her friend [...].

HER HONOUR: For?

MS ALBORE: Who had lent her money for her flight ticket to [Country TT]. She said that when she came to return to [Country TT] at the end of - well, [mid] 2017, she had to settle some outstanding debts, including airfares, legal fees of the [Country TT] proceedings, and other medical expenses. And then she says, "I had to pay back friends and relatives who had previously lent me money".

HER HONOUR: Doesn't name them, though.

MS ALBORE: No, she doesn't go into who

HER HONOUR: No one is on affidavit. Number 11, proceeds of [musical instrument], 2000.

MS ALBORE: Yes. So the same, she sold the [musical instrument] for $2000 to also repay her debts.

HER HONOUR: Proceeds of [Motor Vehicle 4]?

MS ALBORE: Yes. That's what she sold in [mid] 2017, and she says that went to cover all the expenses due to the husband's refusal to contribute. So extracurricular activities, tuition classes, drawing, [music] lessons, private [sport] lessons, [Country TT] language school, [...], and the like.

HER HONOUR: Right. Refund of termination of life insurance.

MS ALBORE: Yes. I believe she gave evidence of that also being spent on living expenses.

1. As above, any proceeds from these items, if in fact received, have been expended on living expenses and are not addbacks.

Items 7, 14, 15, 17, 18: Monies received and contended to be added back against the husband

1. These items are amounts asserted by the wife as addbacks against the husband. They are:
   • Part property settlement received by Husband (effect of Order made on 7 June 2017 (Johns J)) - conceded by Husband and applied to living expenses including rent and bills - $70,000
   • Sale proceeds of property in W Province, Country TT $100,000 but husband says $1,260
   • Funds in H's Bank AR Account - dissipated - $20,000
   • Premature distribution to husband from joint ANZ bank account in 2016 - $100,000 but husband says NIL.
   • Money sent by husband to Ms X in Country TT as a result of sale of a matrimonial property in Country TT - $1,204,000 but husband says NIL.
2. Dealing with each of the items in turn, the husband conceded the part-property settlement had been received and had been applied to living expenses including rent and bills.[39]
3. The property at W Province, in regional Country TT, was gifted to the husband by his father around 1983. The husband says he had not resided at the property since 2001 but remained registered in his name. The husband says that the wife filed lawsuits against him in Country TT and as a result the property at W Province was placed under a caveat and eventually sold by way of enforcement. He says he did not obtain any proceeds from the sale.[40] The wife denies this and says the husband sold the property when she attempted to have it valued. She disputes the value the husband places on the property. The husband says the property has been sold and that he did not receive any money from it:

MS ALBORE: Now, you owned a property in [W Province, Country TT]; is that correct?

THE HUSBAND: Yes.

MS ALBORE: Do you still own that property?

THE HUSBAND: The property was auctioned by the court.

MS ALBORE: Okay. When did it get sold?

THE HUSBAND: 2021 or 2022. It was during the COVID. I couldn't go back. The court put a caveat on it, and then it was sold.

MS ALBORE: How much did it sell for?

THE HUSBAND: All money was paid to [Ms Wei] [the wife]. [Ms Wei] received the money. There was a - there's a restraining order [Ms Wei] also provided to the court.

MS ALBORE: So, sorry, how much did the - the property they sold, but how much did it sell for?

THE HUSBAND: I didn't handle the auction. It was done by the court.

MS ALBORE: So, you weren't notified about the sale of the [W Province] property?

THE HUSBAND: I was, I was informed the property was restrained, and I have no dealing with it. I cannot touch it in any way.

1. As to the premature distribution from joint funds in the amount of $100,000, the source of these funds appears to have been the sale of the Suburb D property, the facts of sale and depletion of resources are recounted above. It is the husband's evidence that, in order to prevent the wife from "wasting money", he transferred around $600,000 from the joint account into his personal account in late 2016. Of that amount, he had withdrawn $100,000 and deposited it into his ANZ account number ending in ...16. He says those funds were borrowed from Mr H and he intended to repay that loan, but that the partial property settlement order made in June 2017[41] prevented him from doing that as he had to transfer "$50,028" to the wife.[42] The remaining "$449,552" was deposited into his NAB account number ending ...60. His affidavit says he explained what he did with that money in previous affidavits filed 28 June 2019 and 20 September 2019 but those affidavits were not in evidence nor the subject of cross examination. He was asked about what happened to the money in the course of cross-examination:[43]

MS ALBORE: So, you purchased [Suburb O] in [early] 2015.

THE HUSBAND: Yes.

MS ALBORE: Then in [late] 2015, you received 900,000.

THE HUSBAND: Yes.

MS ALBORE: From the [Suburb D] property.

THE HUSBAND: Yes.

MS ALBORE: What did you do with the 900,000?

THE HUSBAND: Firstly, we spend it in our daily life. We spend a lot of money.

HER HONOUR: How much?

THE HUSBAND: Every month we spend around $27,000 for several months.

HER HONOUR: How many months is several months?

THE HUSBAND: Around six to seven months. We have records for this.

HER HONOUR: What did you spend it on?

THE HUSBAND: To spend on mortgage for [Suburb O] property and also daily

HER HONOUR: What mortgage did you have to pay for the [Suburb O] property?

THE HUSBAND: 5,000 a month. 4 or $5,000 a month.

HER HONOUR: But then there's another $22,000 a month he's spent on living expenses.

THE HUSBAND: Electricity. Water. Tutor classes for the child.

HER HONOUR: Living's expensive, isn't it? Because $22,000 a month is about what the wife has been going through.

THE HUSBAND: The first judge was very shocked by this figure.

HER HONOUR: Oh, really?

MS ALBORE: Thank you, your Honour. So, [Mr Wei], your $22,000 was living expenses.

THE HUSBAND: Yes, roughly.

HER HONOUR: It's about twice the amount that the wife says that she spent. She says 125 - if you take the amount of money that she's had over the last eight years, it's about $125,000 a year. Whereas you were spending the equivalent of about $250,000 a year, excluding the mortgage.

THE INTERPRETER: Sorry, your Honour. I'm not catching up with what you just said.

HER HONOUR: It is more than the wife would have spent if she had the million dollars since separation and spent it on living expenses.

THE HUSBAND: It was not I spent the money. It is our joint expenses.

HER HONOUR: That's right. And it's twice - it's twice what the wife would be spending if she spent the $1 million over eight years. Yes, go on.

MS ALBORE: Did you spend the entire $900,000?

THE HUSBAND: No. By 2016, seeing the money is coming to a very small figure, I transfer the money into a different joint account.

HER HONOUR: For what purpose?

THE HUSBAND: Because I know there is money - some money owed.

HER HONOUR: What difference did it make?

THE HUSBAND: Knowing that I owe money, especially [Mr H's] money, I transfer - I owe him probably $100,000, and I transfer money into a bank [...].

HER HONOUR: And it was a joint account. You just said it was a joint account.

THE HUSBAND: The joint account was for what 49 - $490,000.

HER HONOUR: You said you transferred it from one joint account into another joint account...

[...]

THE HUSBAND: That's my recollection, too.

HER HONOUR: So why did you take it from one joint account to another joint account?

THE HUSBAND: At that time - at that time, part of the proceed of the big house, there was a $900,000 figure, and there's another $100,000, and together, there's more than 1 million.

HER HONOUR: Okay. So now could you try to answer the question. Why did you transfer the money out of one joint account into another joint account?

THE HUSBAND: Because I have never been to a bank.

HER HONOUR: Because you what?

THE HUSBAND: I have never been to a bank. It was my wife who went to the bank and deal with matters.

[...]

MS ALBORE: No. You transferred the money so that the wife couldn't access any money. Is that right?

THE HUSBAND: She spent money wantonly.

MS ALBORE: Yes. So you transferred the remainder of the 900,000 to stop her from accessing money.

THE HUSBAND: Yes, it was 600,000. Yes.

MS ALBORE: So you cut her off from finances. Is that right?

THE HUSBAND: Because [Ms Wei] asked me twice to write a will to have all the money into - under her name. It was very horrible.

MS ALBORE: You spent-

HER HONOUR: Well, your children had already got a share of your first marriage money, hadn't they?

THE HUSBAND: Yes.

MS ALBORE: And you spent that money that you transferred for your own personal benefit. Is that right?

THE HUSBAND: Not for my personal benefit, but for repaying the debts.

MS ALBORE: So you did repay some debts?

THE HUSBAND: Not yet. We were still using the money as daily expenses money.

MS ALBORE: What happened with that money?

THE HUSBAND: The money, after being transferred into that account, I kept on spending it until 7 June 2017.

MS ALBORE: So you were spending the money after separation. Is that right?

THE HUSBAND: Not myself; it's my family, we are using the money.

HER HONOUR: So when did you deposit the money in the account?

THE HUSBAND: Around September of 11, '16 - August or

HER HONOUR: September '16, and by which time - how long was it until there was none left?

THE HUSBAND: I did not spend it all.

HER HONOUR: Well, how much is left?

THE HUSBAND: On 7 June 2017, there was a court order. The order says $70,000 must be paid to [Ms Wei]. $250,000 goes to the third party lawyer's trust account. Sorry, I made a mistake. Sorry, it was $50,000 that court ordered to be paid into [Ms Wei]'s account

HER HONOUR: That's right, and 70 to you?

THE HUSBAND: Yes, 70,000 to me. 25 - sorry, $250,000 was frozen.

1. I am satisfied that both the husband and the wife have spent money to which they had access post separation, and both say that they have none of those funds now. There is no proof to the contrary. It does not seem to me that one was more of a spender than the other. The effluxion of time makes locating records harder but there has also been more time for which the husband and wife have inevitably incurred living expenses. There is no evidence of income to meet living expenses of either spouse for themselves and their dependents. Indeed, there is not much corroborative evidence of anything financial. The effluxion of time makes the assertion that the monies were applied to living expenses and repayment of loans plausible. As to the justice and equity of the situation, the wife filed within a few months of separation but obviously delayed the first trial and on appeal and this was a matter heard on remittal. The authorities support the proposition that the husband and wife should be able to get on with their respective lives post separation. Financial matters are not frozen, and separation does not put each party into suspended animation in relation to money matters. In GVC & HPC [1998] FamCA 143 the Full Court comprising Nicholson C J, Ellis & Kay JJ) stated:

[46] Whilst not seeking to place a fetter upon the exercise of discretion of a Trial Judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool, ought be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post separation in a manner that is consistent with properly getting on with their lives.

1. In the decision of M & M [1998] FamCA 42, the Full Court, comprising Baker, Kay and Chisholm JJ observed:

There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law requires that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the Trial Judge.

1. I conclude that it is not appropriate to make any of the addbacks sought in relation funds said to be spent on living costs or to repay unsubstantiated loans given the vague evidence, the effluxion of time and lack of documentary corroboration and the limited amount of capital available for division.

1. The wife alleges that the husband hit her on two occasions causing bruising. She says that she went to the doctor following the incident.[44] She denied in cross-examination that it was caused by her falling off a bed.
2. She further alleges controlling behaviour including that the husband forced her to sell the AE District and CC District properties on the threat of divorce if she did not comply. It was put to her that the properties were sold because of difficult financial circumstances, which she denied.
3. The wife further makes allegations of mistreatment of the child, Z,[45] including refusing to let the wife see the child when he was in the husband's care and sending the child to Country TT for boarding school without telling the wife.[46]
4. The husband claims that the wife and her brother harassed his daughter and assaulted her at her workplace in Country TT. The wife claims that she went to ask for help with her relationship with the husband and that Ms X smashed an object, hurting herself.
5. There is no evidence of the impact of violence on the wife. The husband denies the violence. Family violence cannot be condoned but this case was not prosecuted in a way (i.e. with evidence) that substantiates an adjustment pursuant to s75(2)(o) for family violence.

Conclusion on adjustments or matters under section 75(2)

1. I have assessed contributions as equal.
2. The factors in favour of an adjustment in the wife's favour are primarily her primary care of the child and the related restrictions on her income earning potential and ability to support herself as a single mother. Very significantly, the husband has had the benefit of approximately $300,000 applied in payment of legal costs, principally for the three appeals which were decided in his favour. I consider that the wife has likewise had the benefit of $10,000, much less than $300,000. The husband has paid his legal fees whilst the wife still has unpaid legal fees owing to the intervenors. The husband has significant child support arrears which will be very difficult to recover.
3. The factors in favour of the husband are his own caring obligations for his new family.
4. In the exercise of my discretion, I consider that the wife is entitled to all of the available funds and the husband is not entitled to anything over and above what he already has. That is a s75(2)(o) adjustment of 50% which sounds like a very high proportion but in real money terms is modest.

ARE THE ORDERS JUST, EQUITABLE AND APPROPRIATE?

1. The husband has paid his legal fees whilst the wife still has unpaid legal fees owing to the intervenors. After the intervenors' claims are met the wife will have less than $55,000.
2. I am satisfied that the orders are just and equitable and otherwise appropriate.

1. Both husband and wife were represented pursuant to s102NA of the Act. If costs applications are still pressed, no submissions were presented to Court.
2. I will reserve the intervenors' entitlement to make an application for costs in accordance with the Rules. If they chose to do so they should accompany any application with an itemised table of costs drawn in accordance with Schedule 3 to the Federal Circuit and Family Court Rules 2021 (Cth). They are also at liberty to seek that costs are calculated on another basis, but my preliminary view is that any costs adjustment can be done on scale. That may change with the benefit of argument.
3. Any application for costs should be made promptly so that adjustments can be made in respect of costs orders from the amounts due to each party. I would not want to subject the parties to a formal assessment of costs and envisage that I would be making an order about costs on the same day as the application was heard, and the entire hearing would last approximately two hours.

.I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

[1]Wei & Wei and Anor [2020] FamCAFC 224.

[2] Transcript of proceedings, 19 August 2024, p.68 lines 21-35.

[3] Affidavit of Ms X affirmed 31 May 2024 [23].

[5] Affidavit of Mr Wei affirmed 11 June 2024 [15].

[6] Affidavit of Ms Wei affirmed 15 February 2023 [15].

[7] Affidavit of Ms Wei affirmed 15 February 2023 [51].

[8] Affidavit of Mr Wei affirmed 11 June 2024 [278].

[9] Affidavit of Mr Wei affirmed 11 June 2024 [202].

[10] Affidavit of Mr Wei affirmed 11 June 2024 [243].

[11] Affidavit of Mr Wei affirmed 11 June 2024 [247].

[12] Court audio recording (not transcribed) 26 July 2024.

[13] Orders of 7 June 2017 (Johns J) [1] although the figures in the Orders are $50,000 to the wife and $250,000 to the wife's solicitor's trust account.

[14] Affidavit of Mr Wei affirmed 11 June 2024 [251].

[15] Affidavit of Ms Wei affirmed 15 February 2023 [42].

[16] Affidavit of Mr Wei affirmed 11 June 2024 [257].

[17] Discharged and amended on 24 July 2018.

[18] The Order of Johns J authorising the transfer of the trust funds from the Orders of 7 June 2017 to the wife's new lawyers (Mr ZZ) from her former lawyers (AD Lawyers) was discharged by consent by way of orders made on 24 July 2017.

[19] Affidavit of Ms Wei affirmed 15 February 2023 [52].

[20] Wei & Wei and Anor [2020] FamCAFC 224 [27].

[21]Affidavit of Mr Wei affirmed 11 June 2024 [379].

[23] Submissions on behalf of the Intervenor dated 22 July 2024, 4(a).

[24] Court of City S W Provence, [...] at page 1067.

[25] Affidavit of Ms X affirmed 31 May 2024 [23].

[26] Figures derived from the husband's amended response to initiating application dated 10 March 2023 in which he sought the wife pay these amounts.

[27] Affidavit of Mr Wei affirmed 11 June 2024 [242].

[28] Affidavit of Mr Wei affirmed 11 June 2024 [379].

[30] Affidavit of Mr Wei made 12 June 2024 [40].

[31] Affidavit of Mr Wei affirmed 11 June 2024 [57].

[32] Affidavit of Mr Wei affirmed 11 June 2024 [272].

[33] Court audio recording (not transcribed) 19 August 2024.

[34] Transcript of proceedings, 19 August 2024, lines 18 and 39.

[35] Trevi & Trevi [2018] FamCAFC 173.

[36] Affidavit of Mr Wei affirmed 11 June 2024 [59]-[60].

[37] Affidavit of Mr Wei affirmed 11 June 2024 [379].

[38] Transcript of proceedings, 19 August 2024, p 42-43.

[39] Court audio recording (not transcribed) 19 August 2024.

[40] Affidavit of Mr Wei affirmed 11 June 2024 [154]-[157].

[41] Orders of 7 June 2017 (Johns J) [1] although the figures in the Orders are $50,000 to the wife and $250,000 to the wife's solicitor's trust account.

[42] Affidavit of Mr Wei affirmed 11 June 2024 [251].

[43] Transcript of proceedings, 26 July 2024, p. 24 from line 19.

[44] Affidavit of Ms Wei affirmed 15 February 2023 [24].

[45] Affidavit of Ms Wei affirmed 15 February 2023 [60].

[46] Affidavit of Ms Wei affirmed 15 February 2023 [63].